||Freedom of Expression Institute 14 September 2006
The Freedom of Expression Institute is becoming extremely concerned at the repression and denial of free expression that many police believe they have the power and right to subject members of the public to. These acts of repression are always illegal.
Over the past few days, three such incidents have been reported to us, cases of police violence against unarmed citizens who have been, in some or other way, simply exercising their constitutional rights. The most recent of these incidents was the case of Durban's shack dwellers' movement, Abahlali base Mjondolo.
The FXI has repeatedly expressed concern about the manner in which the Regulation of Gatherings Act is being implemented, in ways that are illegal and often unconstitutional. Our recent research report on the Act shows that many of those charged with implementing the Act are not even conversant with its contents.
All three incidents bear out this contention of ours.
Yesterday, shack dwellers in the Kennedy Road settlement crammed into a hall in the settlement after hearing that three leaders of the shack dwellers movement had just been beaten up and arrested by police. When they heard from friends who were with the Abahlali leaders at the police station that bail had been refused, a group of women decided to march to the Sydenham police station. The decision was completely spontaneous and had no prior planning. Of course, it could not have been pre-planned since the arrests took place just a little while earlier.
According to various sources consulted by the FXI, a few minutes after the shack residents moved to the road, police arrived. They reportedly gave no warning to the marchers to disperse and immediately began shooting at the marchers with rubber bullets and live ammunition. Residents claim that police also fired live ammunition into the hall. Anyone seen on the road or moving between the shacks was shot at, residents told the FXI. A woman in her 50s, known as Zinovia, was shot in both legs.
The free movement and free expression of the shack dwellers was severely curtailed by police.
Soon after the alleged police attack on the settlement, a group of about 40 people that had gathered outside the Sydenham police station to wait for the hoped-for release of the Abahlali leaders were allegedly attacked by armed police who told them the 'gathering' was illegal. Some of those that had gathered there told the FXI that the police prodded them with the weapons and that some police had 'shotguns and machine guns'.
The FXI views the actions of the police both in the Kennedy Road settlement and outside the police station as illegal and unconstitutional. The attempted march from Kennedy Road to the police station was clearly a spontaneous action and hence no notification could be given to the police regarding the march as required by the Regulation of Gatherings Act. The Act does contemplate spontaneous gatherings and specifies how the police should respond to such gatherings as the one in Kennedy Road yesterday. In a case where no notice was given for a gathering, the police are obliged to make all attempts to contact the organisers of the gathering and negotiate how the gathering will proceed.
Even in a case where the police believe 'that the Police will not be able to provide adequate protection for the people participating in such a gathering or demonstration', the police may notify the convenor, restrict the gathering to a particular place, guide the participants along a safe route.
In cases where the Police have 'reasonable grounds to believe that danger to persons' exists from the gathering, may call on the marchers, in at least two official languages, to disperse. If marchers then do not disperse, the Police have the authority to disperse the marchers with 'the use of force, excluding the use of weapons likely to cause bodily injury or death'.
According to the Act, the only time that police may use weapons such as firearms against a gathering is
(d) If any person who participates in a gathering or demonstration or any person who hinders, obstructs or interferes with persons who participate in a gathering or demonstration-
* kills or seriously injures, or attempts to kill or seriously injure, or shows a manifest intention of killing or seriously injuring, any person; or
* destroys or does serious damage to, or attempts to destroy or to do serious damage to, or shows a manifest intention of destroying or doing serious damage to, any immovable property or movable property considered to be valuable.
The use of firearms in this case is only allowed 'if he (a policeperson above the rank of warrant officer) finds other methods to be ineffective or inappropriate'. And, even then, 'The degree of force which may be so used shall not be greater than is necessary for the prevention of the actions contemplated in subparagraphs (d)(i) and (ii), and the force shall be moderated and be proportionate to the circumstances of the case and the object to be attained.'
Clearly, the police involved in the operation against Abahlali base Mjondolo yesterday - both in Kennedy Road and at the Sydenham police station - were in violation of these provisions and, thus, acted illegally. Further, they acted in such a manner as to prevent citizens from exercising their constitutional rights to gather, associate and freely express themselves. These actions of police as if they are above the law is an extremely disturbing trend of late in all parts of South Africa.
On 5 September 2006, Oupa Mbhele, an official of the South African Transport and Allied Workers' Union in Gauteng, was wounded four times in his knees and lower legs and underwent surgery because of an 'unprovoked' attack by police who shot at him with rubber bullets from close range.
According to Satawu, Mbhele had been sent to the scene of a march to look into reports that some Satawu members had been arrested for rowdiness. At the time of the shooting he was asking police officers for the names of those arrested to verify whether they were Satawu members. Satawu officials say another police officer then approached Mbhele, holding a gun, and told him to move. Although Mbhele tried to explain what he was doing, the officer opened fire on him four times.
ORANGE FARM WATER CRISIS COMMITTEE
On 6 September 2006, thousands of residents from Orange Farm (a township south of Johannesburg) blockaded the Golden Highway, a major arterial road in Gauteng, demanding that the Mayor of Johannesburg, Amos Masondo, avail himself to residents in order to address the lack of service delivery in the township. The police, allegedly without warning, opened fire on the crowd with rubber bullets, hitting a woman on her leg and a man in his stomach and injuring 16 other people.
Some of those injured were not even part of the blockade, but were hurt when police allegedly entered Orange Farm, blindly shooting at residents in their homes. An 18-year-old boy was shot in the stomach while gardening.
Orange Farm residents are unified in their anger at the way in which the police responded to their peaceful gathering. They speak with contempt of the behaviour of the police, highlighting the fact that the police opened fire without any warning on a group of protesters that were doing nothing to intimidate them. While the police claim that they were responding to
being stoned by the crowd, residents strongly deny this. They point to the fact that a young pregnant woman was shot and that many were shot in the back as examples to prove this.
These incidents highlight an extremely worrying phenomenon: police that act outside of the law, while claiming to be upholding the law. The result is a frightening environment of repression developing within South Africa, with free expression constantly being in danger - especially the free expression of poor communities for whom their main form of expression is to take to the streets.
For more information, call:
Na'eem Jeenah (FXI Anti-censorship programme) - 084 574 2674 / 011
Simon Delaney (FXI Legal Unit) - 083 397 0057
S'bu Zikode (Abahlali BaseMjondolo) - 083 547 0474