I do not agree with what [Malema has] to say but I will defend to the death [his] right to say it – VoltairePosted: 19 September, 2012
The rule of law is the overarching concern as regards the events in Marikana- after other issues such as: the arrest and charge of the miners only to be released later (see article by Killander on AfricLaw), human dignity, the right to assemble and the right to life were raised. It was appalling to see a South African turned away from a lawful gathering under dubious legal grounds (Regulation of Gatherings Act 205 of 1993) and on the pretence that he ‘might’ incite striking miners to commit a criminal offence. Julius Malema was turned away by police at the Wonderkop stadium, Marikana after he tried to attend a gathering by the striking miners, and possibly to address them.
The rule of law serves to protect and promote the (human) rights of individuals irrespective of their background and circumstances. It safeguards against arbitrary decision making and repression, and it seeks to see those who enforce the law, equally conforming to it.
Without discussing in detail the merits of an attempted incitement charge- which should have been brought against him had that been the situation- the least the police could have done was to arrest him on such a charge, not turn him away. This is allowed where the intended incitement does not reach the prospective incitees.
Unlike the common law ground on which an arrest could have been made, the Regulation of Gatherings Act does not require gatherers to obtain a permit from the police prior to their gathering. The Act actually obligates the police to acquire credible information prior to prohibiting a gathering, and only after they have consulted the organisers of the gathering.
In turning Malema away either because of the common law crime of incitement or the provisions of the Act, the police were in violation of sections 17 (the right to assemble, peacefully and unarmed) and 21 (the right to movement) of the Constitution of the Republic of South Africa, and thus disregarding the rule of law. The decay of the rule of law is the first sign that we are returning to a police state, characterised by arbitrary deprivation of the right of movement and that to assemble, but also arbitrary imprisonment, assault and possibly even executions. It is submitted that threats that Malema might incite the miners to commit crime does not suspend the application of the rule of law- for all government action must conform to the law and be sanctioned by law.
Correctly put by Katz and Du Plessis (Bill of Rights): “… freedom of movement is one of the first and inevitable victims of an authoritarian state.”
The arbitrary manner in which these violations were committed brings into question a number of issues, such as the understanding by police of laws governing gatherings, the use of force by police and their preparedness in dealing with violent protests. Reminiscent of the apartheid police and government, political activists were severely restricted in their dissent, movements and areas.
The rights in the Bill of Rights are not absolute and of course issues of public order and public safety are a concern in light of the fact that there was loss of human life.Section 36 sets the criteria under which rights in the Bill of Rights can be limited. Primarily, a limitation on a right in the Bill of Rights is permissible only if it is in terms of law of general application, secondly, if the limitation is reasonable and justifiable in an open and democratic society and, thirdly, the limitation must be based on human dignity, equality and freedom in light of various factors. It is apparent that no law warranted Malema’s ejection from the area, neither was there a legal justification for his removal.
“It is procedure that spells much of the difference between rule of law or rule of whim or caprice.” – Judge William O. Douglas
Assuming that there was evidence that Malema was going to incite the miners to commit crime, then due process which seeks to achieve a fair proceeding and making of representation against any charge which might be levelled against an individual,would have created the necessary checks and balances that will guard against the weakening of the rule of law.
As a country, we must not, in any way, tolerate the circumvention of constitutional rights, irrespective of who the victim is.
“First they came for the communists, and I didn’t speak out because I wasn’t a communist. Then they came for the socialists, and I didn’t speak out because I wasn’t a socialist. Then they came for the trade unionists, and I didn’t speak out because I wasn’t a trade unionist. Then they came for me, and there was no one left to speak for me”- Martin Niemöller.
About the Author:
Kenneth Sithebe, Student Assistant at the Institute for International and Comparative Law in Africa, University of Pretoria.