Fundamental rights and democratic contestation: reflections on freedom of assembly in an unequal society

Henk Botha

doi:10.4314/ldd.v21i1.11

Abstract

CITATION: Botha, H. 2017. Fundamental rights and democratic contestation : reflections on freedom of assembly in an unequal society. Law, Democracy & Development, 21:221-238, doi:10.4314/ldd.v21i1.11.

Highlights

Demonstrations and protests are a regular feature of political life in South Africa
These narratives underplay the role of social mobilisation and contestation in the re-interpretation and re-enactment of constitutional guarantees. They tend to underestimate the extent to which fundamental rights are eroded by systemic inequality and neoliberalism’s governing rationality. They sit uneasily with the history of social protests in South Africa over the past decade, which appears to suggest that the representative institutions and participatory mechanisms created in terms of the Constitution have had limited success in overcoming the gap between the promise of universal citizenship and the continued marginalisation and dispossession of a substantial section of the population
The idea is, rather, to rethink these oppositions by recognising that power is constitutive of all political engagement, whether inside or outside of existing institutions; that protest action is often committed to universalist causes;[58] that parliamentary proceedings can become the site of agonistic politics, as Van der Westhuizen’s analysis shows; and that radical democracy requires a combination of extra-parliamentary struggles and strategies for effecting institutional change.[59]

Summary

INTRODUCTION

Demonstrations and protests are a regular feature of political life in South Africa. People take to the streets to protest against inadequate public services, interruptions in the supply of electricity, corruption, the violent use of force by the police, a lack of democratic accountability on the part of local government, hikes in student fees, outsourcing, etc. I put forward one possible answer to this question, namely, that the restrictive interpretation of freedom of assembly by Parliament and the courts, and its neglect in academic literature,[8] rest on certain assumptions about the kind of democracy instituted by the Constitution. These assumptions concern the relationship between: (i) the power of the people, as instituted and channelled through established democratic institutions, and the power of the people, as exercised outside of these institutions; (ii) representative and direct democracy; (iii) reason and power; and (iv) speech and action. I hope that, by examining and interrogating these assumptions, the article can contribute to a richer understanding of the possibilities and limits of demonstrations and protests in opening up spaces of democratic contestation

INSTITUTIONALISING THE POWER OF THE PEOPLE

BETWEEN DIRECT AND REPRESENTATIVE DEMOCRACY

CONTESTATION AND DELIBERATION

PRIVILEGING SPEECH OVER ACTION AND REASON OVER AFFECT

CONCLUDING REMARKS