On the 19 and 20 of February, the Freedom of Expression Institute (FXI) held a workshop with law clinics, legal advice offices and paralegal organisations to strategise on extending legal services on freedom of expression issues to areas and constituencies that remain marginalised and excluded in South Africa, such as rural women, farmworkers, refugees, migrants and asylum seekers. This workshop was part of a three year project supported by Atlantic Philanthropies. The Legal Resources Centre (LRC) was invited to the workshop and the FXI hopes that the Institute will be able to partner with the LRC on this project.

The purpose of this project is to consolidate the work the FXI has been doing with organisations of the rural poor, refugees and immigrants, to build capacities to claim their rights to freedom of expression and access to information. This project will focus particularly on the right to protest and other popular forms of expression, as a number of these groups have experienced particular problems with denial of this right, as well as problems of police violence, precisely because they are so stigmatised. As a small organisation, FXI does not have the capacity to take on cases from many different parts of the country, and hopes to resolve this problem by entering into partnerships with organisations such as the LRC.

This project became necessary because, in spite of claiming to be a single nation founded on a progressive Constitution, South Africa has many conservative, regressive tendencies. Xenophobia has become increasingly apparent; these sentiments are sometimes even promoted by political leaders in an attempt to mobilise support. Poor communities, especially those in rural areas, are still very marginalised and gay, lesbians and migrants within these communities suffer the worst forms of marginalisation.

Therefore, it is hardly surprising that at various stages in its work FXI has been approached by organisations representing the rural poor, refugees, and the gay and lesbian community complaining about various forms of censorship at the hands of the state, police, intelligence agencies and the media (especially the public broadcaster, the South African Broadcasting Corporation).

The right to protest has been under particular pressure. Since 2000, FXI has detected a sharp increase in threats to the rights to demonstrate, picket, petition and hold public meetings. These forms of expression are critically important especially for poor people for whom these are often the only forms of expression available to them and which they can afford. In fact, in the 2004/2005 financial year, over 5800 protests took place throughout the country, which averages 16 a day, according to the Ministry of Safety and Security. Of these 5800 protests, more than 1000 were banned. This is a worrying statistic and points to a trend that prohibition of gatherings may be becoming more commonplace.

While the Regulation of Gatherings Act makes it extremely difficult for police or local authorities to prohibit a gathering, there is mounting evidence of local authorities abusing their power and proscribing gatherings anyway. In the FXI's experience, some local authorities disrespect people's constitutional and legal rights and ban gatherings illegally, leading to spirals of conflict with the poor communities on the one hand and these authorities and the police on the other. When these communities march anyway, the police may use excessive force to disperse demonstrators. The FXI's in-house Law Clinic has handled a number of these cases.

Problems with respect to gatherings began to emerge in earnest in relation to gatherings against events such as the World Conference Against Racism (WCAR) in Durban in 2000 and the Word Summit on Sustainable Development (WSSD) in Johannesburg in 2002.

In 2004, more conflict broke out in various parts of the country, especially in peri-urban and rural areas. For instance, in the Free State a spiral of violence developed, engendered by a growing distance between councillors and residents coupled with the banning of initially peaceful demonstrations and state violence against protestors. In September 2004 a peaceful protest against poor service delivery in Harrismith led to police opening fire on fleeing demonstrators, and seventeen year old Teboho Mkhonza died. The demonstrators were calling for the resignation of councillors in the area after they failed to address the community's grievances about the lack of services and allegations of corruption in the allocation of government-subsidised houses.

In KwaZulu-Natal, in November 2005, the eThekwini Municipality prohibited a march of the Durban Shack Dwellers Movement, Abahlali Base Mjondolo that was due to take place by the Foreman Road shack dwellers, protesting against a lack of housing and service delivery. The ban was in violation of the Constitution as well of the Regulation of Gatherings Act. Other Abahlali marches have been banned, in spite of the fact that they won a case against the Municipality in 2006 for having illegally prohibited a march.

Even more recently, problems have also arisen in communities where incorporation into different provinces has become controversial, after the government decided to do away with cross-border municipalities. The Cross-Boundary Municipalities Act has seen both Moutse and Bushbuckridge incorporated into Limpopo from Mpumalanga, and Matatiele from KwaZulu-Natal to Eastern Cape. These communities complain about a lack of consultation, and have noted that even when they have made submissions 'the will of the people was never heard'. The South African Communist Party (SACP) has also complained that a number of their marches against poor service delivery in Matatiele and Moutse have been banned.

In the Limpopo province, mine affected communities have claimed widespread harassment of activists and excessive use of police force during gatherings. A number of these cases have been taken up by attorney Richard Spoor, who himself is being sued for defamation by Angloplat.

The right to freedom of diasporan communities is even more precarious than those of the communities mentioned above. Xenophobia against non-South Africans is rife, as the country has become a magnet for many African people seeking shelter from persecution and economic opportunities.

Stereotyping of refugees and foreigners is a serious problem in the media, with the tabloids especially perpetuating stereotypes (often they are portrayed as ‘aliens' stealing jobs from locals). Given the high degrees of violence against foreigners, this form of stereotyping is something that the country can ill afford. Those who are most badly affected are ordinary refugees and immigrants. Attempts to raise their voices against abusive conditions may be repressed. Some attempts to organise protest actions to denounce the poor living conditions of these communities have been repressed as the police seem to consider them undeserving of the rights that South Africans (ostensibly) enjoy.

For example, in July 2006 the FXI was approached by two leaders of the Ivorian community in South Africa. They had given notice to the Pretoria metro police of a march to the Embassy of Ivory Coast, demanding the resignation of Kone Boubakar, the Ambassador for Ivory Coast in South Africa. The march was prohibited at the 11th hour. The FXI advised them on how to take the prohibition on review, supplying the necessary affidavits and guiding them through the process at the Pretoria High Court. On urgent application, they were granted permission for the march, which went ahead on the same day, peacefully and without incident. The FXI has also been approached by the Biafran National Front to assist with a prohibited gathering, which was then allowed to proceed when the Law Clinic intervened.

The intention of this project is to ensure that legal capacity exists in other parts of the country to take up similar cases. The project will complement and hopefully add value to the work already being funded by the Reconciliation and Human Rights Programme, rather than to duplicate what already exists.

The FXI will do this by working with Law Clinics, Advice Offices and networks of paralegals to ensure that these organisations have a thorough working knowledge of the law in relation to freedom of expression and access to information. The target organisations will further be encouraged to develop paralegal skills in aspects of freedom of expression, and will develop a particularly in-depth knowledge of the Regulation of Gatherings Act. The FXI has found that when activists have a thorough knowledge of the Act, they are able to defend their rights successfully in their interactions with the police, so the intention is to ensure that paralegals are available to make similar interventions.

For understandable historical reasons, most post-1994 paralegal and advice office work focussed on socio-economic rights, especially the right to social security. This is also reflected in the caseload handled by Law Clinics as well. However, these rights cannot be realized without civil and political rights, as these are facilitative rights through which socio-economic rights will be realized.

Unless the free expression rights of marginalised groups and poor people are secured, the grievances that they raise around matters of service delivery, land reform, unemployment, etc, will not be heard and will therefore remain unaddressed. The FXI looks forward to more interactions with the LRC to this end.  

- by Jane Duncan (Executive Director of FXI)