Beware the forces of a false law and order

When government starts using words like “incitement”, “agitation”, “anarchy”, “illegal gatherings”, “illegal strikes” and “law and order” with great frequency, it is time to get nervous. These words evoke a repressive past as this is precisely the terminology used by the apartheid regime to justify repeated clampdown on protestors and strikers in the name of stability and order.

There is no doubt that elements of the government would like to use the full force of the law to silence Julius Malema and to get the mining industry back to work. There is also little doubt that force will not solve this problem, unless the state is prepared to continue to shoot protestors and strikers the way the police did a few weeks ago.

Fortunately, the government and its security forces are now restrained by the constitution. But this means that we (civil society) will have to hold them to that document. We will have to remind them that Malema has freedom to speak, to gather, to organise and to campaign and if you take away those freedoms without good reason and due process, you are taking them away from all of us.

If Malema is inciting crime and/or violence, then the authorities must spell this out and take it on. But I am made nervous by vague allegations and unspecificied charges. As far as I have seen and heard, he may be inciting strikes and protest and demands for higher wages; he is certainly inciting mining workers to demand that government and the mine owners pay more attention to their working and living conditions; he is certainly campaigning for a change in the presidency.

But whether or not he is crossing the line into illegality – and the state has the capacity to prove this in court – is not clear at all.

ANC secretary general Gwede Mantashe was quoted as saying this weekend: “Incitement is a criminal offence and it is written as such in the Constitution … Tolerance to incitement and agitation is something that can lead to anarchy.” Well, that depends on what you are inciting; there is certainly no restriction on “agitation”.

Charging and arresting Malema now will confirm suspicions that the law is being used for short-term intra-party political struggles; clamping down on striking mineworkers will only bolster a belief that the ruling party has been captured by black empowerment mining interests (an easy idea to hold when the names of the new generation of Randlords – such as Cyril Ramaphosa, Patrice Motsepe and Brigitte Radebe – are so visible in party circles).

The problems of Marikana are political problems and using repression to clear them out of the way would be succumbing to short-term temptation at a cost of long-term stability. It will not help to turn Malema into a martyr.

The test of tolerance in a democracy is one’s capacity to live with ideas, beliefs, campaigns and views which make one uncomfortable. The test of a democracy is that institutions are prepared to defend the rights even of those who would undermine them. This takes courage, but that is what is called for here.

The Marikana massacre showed us how quickly and easily constitutional rights can be thrown out the window. The US government under George Bush Jnr showed us this too, when they created elaborate constitutional tricks to justify torturing prisoners (and remember that no-one has yet to be prosecuted for this, except the whisteblower who exposed it and is facing up to 45 years). We are going to have to be firm and clear about protecting the rights of striking miners and dissident politicians and preventing the government from falling into the temptations of using force and limiting rights to deal with their political headaches.

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