Democracy is not mob rule
The front page of a newspaper (the Daily News) of 19 August 2010 reads "Patients turned away". On this page there were reports with the following headings "Protestors block access to hospitals in KZN", "Its 'war' on public services: Sadtu" and "injured matric pupils lay charges against strikers". These reports indicate that the public service strikers in pursuing have become militant and in some cases are resorting to criminal violence. Furthermore, the strike by public servants has become increasingly violent as the week unfolded. This is unlawful, undemocratic and unconstitutional.Section 17 of Constitution declares that every person must have the right to assemble and to demonstrate with others peacefully and unarmed, and to picket and present petitions.Violent protests and conduct that infringes the rights of other persons are therefore unlawful. It was decided in Acting Superintendent-General of Education of Kwazulu-Natal v Ngubo that the right to assemble and demonstrate implicitly extended no further than what was necessary to convey the demonstrators' message. The court also held that it was not possible to conceive of any situation where the right to assemble and demonstrate could be so extensive as to justify harassment, delicts or criminal acts. Democracy must be distinguished from conduct that constitutes mob rule.
Where strikers take the law into their own hands and where their conduct violates the rights of other persons they acting unlawfully and immorally. This is not in accordance with the letter and spirit of the Constitution and is not a manifestation of liberty but rather one of licence. Where this occurs, as has happened last week with the civil servants' strike, it must be condemned in unequivocal terms by government and civil society. Furthermore, it undermines the very fabric of democratic and constitutional government. In a democracy political and labour disputes must be resolved in a peaceful non-violent manner. There is also a profound responsibility on the trade unions to ensure that their members conduct themselves lawfully and they should not use inflammatory language, as Sadtu has done in saying the strike is "war on public services". Such a statement incites violence.
Government has a responsibility to protect its citizens against the violation of their rights. In this regard government must act with firmness and single mindedness of purpose. Unfortunately this has not occurred and there has been equivocation and ambivalence in response to the reprehensible conduct of the strikers. This constitutes a danger and threat to our fledgling democracy. The government dare not treat unruly strikers with kid gloves as they intimidate and assault law- abiding persons and as they trash the streets. A judicious equilibrium has to be maintained in a liberal democracy between the competing values of freedom of assembly and public order. Strikers do not have the right to create anarchy and mayhem in our society.
Our system of democratic government is at a significant cross road because the state has a duty to ensure public order. It cannot allow unruly elements in the trade unions to extort concessions using violence. This will set a most detrimental precedent for the future. Law and order is part of the rule of law which is essential for ensuring civilized values as set out in the Constitution.
South Africans, having achieved and created a democratic system of government at a sublimely great cost, must boldly protect the essence and legitimacy of our constitutional and political dispensation. It needs to be courageously defended against the predations of those in our society, who prove to be morally and politically unscrupulous, and who wish emasculate or destroy a great and meritorious Constitution, by using violent protests to achieve political and other objectives. What is at stake is the future of liberal democracy and the supremacy of the Constitution and all that it entails.
Prof George Devenish is a former professor of public law and a DA councillor.
He writes in his personal capacity.
19th August 2010
