HIV and Human Rights: The right to protest

NSP Review COMMENT:

Community healthcare workers are the backbone of South Africa’s health system. There is no doubt that this cadre of healthcare worker play a critical role in ensuring that people living with HIV and/or tuberculosis are diagnosed early, take their medication and access the health system when issues arise.
Their role is especially important in a province like the Free State, where medicine stock-outs, absent emergency medical services, long waiting times, staff shortages, and severe negligence warn of a collapsing healthcare system. Here it is especially important that community healthcare workers can continue to care for South Africa’s poorest and most vulnerable people. However under the leadership of Free State MEC of Health, Dr Benny Malakoane, 3 800 community healthcare workers lost their jobs in the first half of 2014. Instead of receiving the proper recognition and fair pay they deserve, they are now struggling to survive and the people they are meant to serve suffer without access to healthcare. In the next couple of pages we highlight the ongoing court case involving the #BopheloHouse94 as well the TAC’s ongoing efforts to improve healthcare services in the province.

In April 2014, the Free State Health Department MEC, Benny Malakoane, issued a four-sentence circular that, in effect, fired 3 800 people. The dismissed Community Health Workers, or CHWs, were the front line of primary healthcare, capable of bringing services to those who can’t reach health facilities – a cadre of workers upon whom the Free State’s poorest and most vulnerable depended. Yet, while their jobs were critical and gruelling, CHW pay was low, just over R1 000 per month for most and, in the Free State, they often went months at a time without being paid at all.

A group of CHWs organised to respond to their working condition, their sudden and unexplained dismissal, the MEC’s subsequent refusal to meet them and the general deterioration of the health system under the MEC’s watch. On a winter evening on 9 July 2014, about 130 women gathered at Bophelo House, the headquarters of the Free State Health Department. They intended to hold a vigil through the night until the MEC arrived at work the following morning, at which point they would once again request a meeting with him. The Public Order Police, the specialist police unit mandated to deal with crowd management, arrested the women in the early morning hours of 10 July for what they called an “illegal gathering”. More than 100 of the CHWs, many of them elderly, all of them unemployed, most of them poor and far from their homes, spent several days in jail, many without access to essential medication.

Over the intervening year, they were called to court on seven occasions, before the trial began on their sixth appearance—the trial would turn into a marathon, spanning a total of two grueling weeks. Each time they appeared in court, the CHWs travelled to Bloemfontein from all corners of the province, often hundreds of kilometers, leaving family responsibilities behind. They slept on church floors or benches in community halls and suffered conditions that one magistrate, after one of the CHWs fainted in a hot and crowded courtroom, called “inhumane and undignified”.

Eventually, the court moved the proceedings from the magistrate’s court to the high court – a room capable of accommodating all of the accused. From 6 to 10 July the trial finally got underway. The testimony from Public Order Police over those five days was shocking. They repeatedly explained how they routinely – as per a long-held institutional practice – make unlawful arrests, violate the rights to freedom of expression and demonstration, and use apartheid-era means of crowd control. In the course of their testimony, it became obvious that this case is about more than a disagreement between a few gogos and an MEC – it is about a serious threat to a right fundamental to a free society.

The Regulation of Gatherings Act:
The accused are charged with violating the Regulation of Gatherings Act, a 1993 law passed in the lead up to the 1994 elections marking the fall of apartheid. Today, the law remains the primary piece of legislation through which the right to assembly and protest, as provided in Section 17 of the Constitution, is managed. The law requires anyone who wants to hold a “gathering”, defined as a group of more than 15 people, to give notice to the police of their intent to do so. This requirement seems rather innocuous, even a good idea: it enables people to work with the police to ensure that demonstrators are protected and that people can exercise their rights safely. But in practice, across the country, police routinely use the law to prevent protest, stifle dissent and arrest those who speak out against power.

In the Free State, police have added their own interpretation to the way in which the legislation is abused. For context, one must understand what kind of conduct the law does and doesn’t criminalise: it is a crime to convene a gathering and fail to give notice to the police of such gathering; it is not a crime to attend a gathering for which no notice has been given.

In some very extreme circumstances police can prohibit a gathering from taking place. Gatherings can, for the most part, only be prohibited if the police receive “credible information under oath” of a threat that the gathering will result in “serious” disruption to traffic, injury, or “extensive damage to property” and the police will be unable to manage the threat. In contrast to an “un-notified gathering”, it is a crime to attend (or convene) a prohibited gathering.But, the understanding of this law by the police in the Free State seems to be that if there is a gathering of 15 or more people and the municipality has not been informed of and provided “authorisation” for that gathering, everyone at the gathering is guilty of a crime and should be arrested and charged with a crime carrying a sentence of up to one year imprisonment.

This amounts to a requirement, in essence, that people can only exercise their rights when given express permission to do so, a particularly frightening requirement in the context of the right to protest. This understanding of the law is eerily akin to apartheid’s infamous Internal Security Act and is diametrically opposed to the current state of the law under the Regulation of Gatherings Act. The police seem to be applying the law in this way across the province. Just recently, approximately 30 health activists in Reitz were arrested for similar reasons. It is abundantly clear that these arrests intend to stifle dissent and assembly, the precise rights the Gatherings Act is meant to manage and protect.

On 1 October 2015, Magistrate Z Thafheni convicted the Bophelo House 94 of attending a prohibited gathering. The Magistrate, in an impressive feat of contorted reasoning, found that failure to provide notice to police of a gathering renders the gathering “automatically prohibited”. On 2 October 2015, she sentenced the Bophelo House 94 to a fine of R600 or three months imprisonment, both suspended for three years provided that they do not violate section 12(1)(e) of the Gatherings Act. The Bophelo House 94 embraced the conviction as an opportunity to appeal to a superior court to clarify the law and ensure that police, prosecutors and magistrates across the province are no longer able to violate people’s right to protest in this way. The legal team is working on the appeal.