10 May 2016
By Dr Martin Nsibirwa
South Africa in line with accepted international human rights standards recognises the right to assemble, demonstrate, picket and petition. Section 17 of the South African Constitution recognises the right in the following terms “[e]veryone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”. Often we refer to this right as the right to protest.
While the Constitution recognises the right to protest such a right is not absolute and has to be exercised within limitations as set by the law. The limitations are intended to ensure that in the exercise of the right to protest, the rights of others should not be infringed. Accordingly, the impact of protest action with regard to schools during recent events is concerning.
Every year thousands of protests take place in South Africa. In 2015, South Africa recorded in excess of 13 500 protests. The majority of these protests are peaceful and many pass without incident. Protest action comes under the spotlight when protestors infringe on the enjoyment of others’ rights. The recent protest actions in Vuwani and Mpumalanga have once again highlighted how in an effort to exercise one right, other rights can be infringed — in these cases the right of children to access education. More than a dozen schools have been burnt in acts of arson that started as protest action in Vuwani. The attacks on schools has resulted in destruction of teaching and learning materials. In Mpumalanga children are being prevented from attending schools because of protest action.
Interfering with children’s right to a basic education has a far reaching negative impact for society as a whole. Present day South Africa is still scarred by its history that did not afford equal education opportunities to its children and generations of South Africans were unable to acquire an education or professional skills. The challenges of that time were largely attributable to structured inequality and poverty. Many who attended schools did so in sub-standard conditions.
Post apartheid South Africa is offering children, even though some challenges still exist, an opportunity to have access to education. However, in order to ensure that children are able to realise their right to education, society as a whole has a role to play in safeguarding places of learning. Destroying schools in order to convey a message undermines the realisation of human rights. Access to a basic education helps to start the process of unlocking the individual’s potential and as such, schools should be treated as sacred places. Access to education enables individuals to know their rights and how these can be claimed. When protest action results in blocking children from attending school or culminates in acts of arson in which school buildings are destroyed, children suffer permanent damage and as a result South Africa’s efforts to advance human rights and ensure society’s progress suffer serious setbacks.
People’s right to protest is an important human right because it is intrinsically linked to other rights including the rights to freedom of association and freedom of expression. The Constitution guarantees all these rights. The right to protest affords individuals an opportunity to publicly air their concerns. Social protests have always been a powerful means of expression and exercise of collective will and power. The right to protest should however always be regarded as one of those rights that helps to reduce conflict in society even though on the face of it protests may appear as a confrontational mode of engagement. The key point to be made however is that claimants to the right to protest carry the responsibility to avoid infringing on the rights of others.
We are currently witnessing the ugly face of what protests should not be. Protests should not be carried out in a manner that undermines the rights of others, in the cases of Vuwani or Mpumalanga, where children’s right to receive a basic education have been seriously undermined by protest action. The exercise of every right should always happen with due regard to other rights. The Constitution expects everyone to have regard for all the rights it enshrines. The rights in the Constitution do not place an obligation on state authorities alone but they place an obligation on private citizens as well who should respect and uphold the human rights of their fellow citizens. This means that individuals must continually ask themselves whether in the exercise of their right they are not infringing on the rights of other people. When protestors resort to attacking people, destroying property, whether private or public they cease to be engaging in a genuine exercise of their right and descend rapidly into criminal action.
The acts of arson committed at more than a dozen schools will continue to negatively impact the affected children long after the protestors leave the streets. It is estimated that rebuilding of the more than a dozen affected schools in Vuwani will cost in excess of R400 million. These resources which could have been dedicated to further improving schools are now to be spent rebuilding schools. Besides the financial cost, the psychological costs on the thousands of affected children and school community is incalculable. Indeed while issues which concern the protestors may be of grave concern centrally relating to the well-being of the future generation, through such action we are teaching our children that resorting to unlawful acts is a normal way of resolving conflict — a cycle which South Africa is seeking to break. Additionally we issue a dire signal to society that attacks on the rights of children and other vulnerable groups are legitimate and condoned.
Protestors need to refrain from destruction of property in order to make their point. Acts of arson do not advance but rather undermine the realization of human rights. Protest action must be conducted in a manner that recognizes the rights of others and resort to acts of arson should not be embraced as the new normal.
Dr Nsibirwa is Senior Manager at the SA Human Rights Commission