An effective exercise of democracy requires that all individuals participate in and influence decision-making processes, including political processes or matters of governance. Even if individuals choose not to form or join a political party, they can still engage in participatory democracy through other constitutionally protected means (beyond voting in public elections) through assembly, demonstration, picket, and petition as outlined in s 17 of the Constitution.
Today’s protests are significant in promoting positive change and giving a voice to ordinary citizens to hold the government responsible. We are aware of the crucial role that protests have played in transforming our society into an anti-apartheid democratic one. However, South Africa (SA) has undergone a major political and social transformation, making it crucial to evaluate the role of protest in addressing current challenges. Protests remain just as pertinent today as ever; however, they must be examined in the context of today’s social, political, and economic climate.
During the era of apartheid, the majority of South Africans were not permitted to openly express their grievances with the government or participate in decision-making processes or the governance of the nation. Protests and demonstrations were utilised as a means of exerting pressure on the government and challenging the apartheid political system. Individuals were punished for this behaviour. In the post-apartheid era and under the current constitutional system, the right to protest is an integral part of a free and democratic society and is protected by s 17 of the Constitution.
Section 17 of the Constitution states that: ‘Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions’. The Constitution affords these rights to all individuals, including those who have been historically marginalised based on race, provided that the protesters are peaceful and unarmed. For many South Africans, the right to protest remains the only effective means available for them to express their concerns. It is often the only mechanism to secure their basic human rights. The court in Mlungwana and Others v S and Another (Equal Education and Others as Amici Curiae) 2019 (1) BCLR 88 (CC), in para 69, held that:
‘People who lack political and economic power have only protests as a tool to communicate their legitimate concerns. To take away that tool would undermine the promise in the Constitution’s preamble that South Africa belongs to all who live in it, and not only a powerful elite.’
Many of the protests and demonstrations we have witnessed in recent times are directly linked to the exercise of other constitutional rights. For instance, students have protested in various circumstances, to defend their right to basic and further education as provided in s 29 of the Constitution. In 2015, university students started the #FeesMustFall movement, with its main purpose being to protest the rising costs of higher education and advocating for the elimination of tuition fees for tertiary education, in order to make it accessible to all. The right to freedom of assembly is also important for children who are unable to vote, influence decision-making, and become involved in the political process, particularly regarding their education. We have witnessed high school children protesting and successfully changing their school’s discriminatory hair policies, among other issues.
In comparison to the past, it can be argued that exercising the right to protest has become easier and there are fewer restrictions (restrictions provided for by law and within the parameters of the Constitution). Much of the organisation and discussion surrounding protests now takes place on social media, which increases the anticipation and rallies people across different sectors of society. One of the largest student protest movements, #FeesMustFall is said to have originated on social media. This is so because social media is a commonly used tool for individuals to voice their concerns about different socio-economic issues.
Protests are considered to have an impact when they are well-coordinated and persistent. The impact of certain protests is determined by their ability to initiate a dialogue and garner attention from individuals in positions of authority. This fosters an ongoing relationship between regular citizens and those who wield power over them.
The environment in SA that influenced our political and social formulation has changed. However, protests continue to play a significant role in our democracy and should be assessed in light of current challenges. The rights outlined in s 17 are applicable to everyone no matter their social, political, or economic background. It is both a right and responsibility for all citizens to participate in decision-making processes. This is especially crucial today, as it allows individuals outside of the majority ruling party to have a say and hold the state accountable. While a well-functioning participatory democracy is typically marked by minimal protest activity, the right to protest is central to our constitutional democracy and serves as a symbolic part of our democratic processes.
Mpumelelo Ndlela LLB (UP) is a legal practitioner at Adams & Adams Attorneys in Pretoria.
This article was first published in De Rebus in 2024 (April) DR 9.
