In a landmark judgment on Monday, a full bench in the country’s highest court ruled that it is not illegal to demonstrate.
However, there is a fine line. In terms of the Gatherings Act, protesters can
exercise their right but in doing so must take in to account the rights of other people.
Members of the Social Justice Coalition asked the Constitutional Court to confirm section 12(1)(a) of the Gatherings Act. Their counsel argued that the act did not encourage people to exercise their right to demonstrate peacefully. It made people fearful of exercising that right, the court heard.
Their counsel submitted that the law was unconstitutional.
In terms of the Gatherings Act, a group of 15 or fewer people intent on protesting in a public place is defined as a demonstration, while any group bigger than that is a “gathering”.
For gatherings, the law is strict. No notice is required for a demonstration, but the convener of a gathering must give written notice to the local municipality, generally seven days in advance. It is important to know that when a convenor notifies the local municipality of a gathering, she is not asking for permission. Rather, the purpose of the notice is to enable the municipality and the convener of the gathering to decide on how to proceed with the gathering.
Who is a convener of a gathering? According to the Act, conveners are the people who organise and invite the public to gatherings.
When the Constitutional Court is asked to decide whether a law places an unconstitutional limitation on a fundamental right, it asks two questions: First, does the law, in this case Section 12(1)(a) of the Gatherings Act, make it harder for us to exercise our fundamental right in Section 17. Second, does the state have a good enough reason to do that?
The judges remarked everyone is entitled to exercise the right in Section 17 to express their frustrations, aspirations, or demands. Anything that would prevent unarmed persons from assembling peacefully would thus limit the right in Section 17. The court disagreed with the submission by counsel for the Minister of Police, that nothing in the Gatherings Act prevented anyone from protesting.
Equal education, as a friend of the court, emphasised the importance of protest for children who do not even have the ability of exercise their political rights through voting. For them, protest is truly the only means of participation in our democracy.
While the Minister of Police argued that notification of a gathering is important to allow for proper planning, it could not convince the court that criminalisation as a sanction for not doing so, is justified. It could provide no evidence that such a harsh sanction was limiting violent protests or criminal activity during protests because of a greater police presence, or indeed that it was saving the police money – all claims that they had advanced in defending the criminalisation of conveners.
While the court sympathised with the need for planning in the interest of public order and therefore for advance notice, it could think of various other means of encouraging conveners to give notice of gatherings without having to threaten them with criminal records. For example, administrative fines are often used in other countries to achieve the same objective.
But, it is not for the court to tell the legislature how to achieve its aim of encouraging the conveners of gatherings to notify the municipality in advance of an intended protest. That will be the lawmakers’ job. What the court did find, conclusively, is that the Constitution does not allow a law