Responding to student protests: should the law be a tool of justice or violence?

03 October 2016 | Story Jameelah Omar
Many South Africans fear and mistrust the police.
Many South Africans fear and mistrust the police.

What is needed to enable South Africa’s universities to proceed with the academic year? The answer, according to some, is to deploy private security companies on campuses.

Several of those who support such interventions are at my own institution, the University of Cape Town (UCT). As a law lecturer, I find this disquieting. Using private security companies as an alternative to police when engaging with protesters ignores the context within which these protests are occurring.

I teach a number of students who were involved in 2015’s initial #feesmustfall protests. They came face to face with private security guards and officers from the South African Police Services. When I am teaching them about private security and public order policing, I must take their lived experiences into account. Not doing so would make my classes irrelevant for failing to go beyond the written word of the law.

When I was learning criminal procedure as a student, there was little contextual analysis. Criminal procedure is the practice of criminal law. It includes procedural rules about jurisdiction of courts, police powers and the conduct of a criminal trial. Historically, these topics were covered without contextual understandings of criminal justice, such as racial stereotyping in arrest and search and seizure.

Clashes between student protesters and armed security (whether public or private), as seen in the recent use of public order policing at Rhodes University, compel us to consider the role of use of force in the context of protest.

Law and order through force

In common discourse, the powers of the police to arrest are often not interrogated from the perspective of past – and more recent – abuse of power by the South African Police, renamed the South African Police Service (SAPS) in 1995.

Two recent commissions of inquiry have uncovered major structural and resource problems within the South African Police Services. But in practice there has been little engagement with the organisation’s institutional culture, training of police officers, or with its traditions of authoritarianism.

Some may ask at this point why the question of the SAPS enforcing law and order is controversial. Isn’t that its role? The legal answer should be: it depends on how we think about law and order.

In South Africa this is a loaded concept. Law and order doesn’t necessarily translate into safety and security for everyone. During apartheid, the police used force to perpetuate a particular ideology of law and order: the oppression of black people. Even now, it is indisputable that depending on where a person lives and their access to resources, they may enjoy better protection by the SAPS than others.

The effect of this is that even post-apartheid, most South Africans don’t trust the police. This is further complicated by the widespread use of private security companies.

Policing may require different strategies depending on the situation. For example, calling on the police to respond to a sexual assault on campus is very different to calling on them to deal with a protest.

Ideally universities should not call on private security companies to deal with either of those situations.

Institutions’ move to do so perhaps speaks to a mistrust of the police. But the use of private security leads to potentially the same consequences. The use of either the police or private security contains the implicit authorisation to use force.

Yet increasingly, even among legal experts, the potential problems of policing by force is absent when debating how security – state and private – should be employed.

Law as violence

Section 17 of South Africa’s Constitution enshrines the right to protest where it is peaceful and unarmed. Protest is then illegal where it is not peaceful and not unarmed. In such a situation, it is argued by some, the force of the law can be legitimately used to quell the protesters.

But a preliminary analysis of what “peaceful” and “unarmed” mean is required. It also requires an analysis of “violence”. “Peaceful” and “violent” and “armed” and “unarmed” are not necessarily binaries. We need to understand the space in between these concepts when interpreting the law. Questions of who has the power to decide issues of language and meaning ascribed to that language must be addressed in these debates.

Some of the issues raised by the protesting students relate to systemic violence as a result of a history of oppression that current students (and their families and communities) are still experiencing as a way of life.

Even if we were to operate from the assumption that the protesters have employed tactics of violence – and again I caution against the use of this language without understanding the context of power and inequality – responding with violence is not the answer.

Are university authorities consciously repeating the cycles of institutional force? Calling for security as the “only option” implies that all other methods of constructive engagement have been tried and failed.

If universities are to choose this route, it should at least be with the full knowledge and acknowledgement that they are advocating for law as violence. UCT should learn from the escalated situations on other university campuses in the past two weeks and continue to find non-violent resolutions.

As I plan my teaching for next year, I know I have to have better answers for my students about law as a tool to enable justice, rather than as an instrument of violence.

By Jameelah Omar, Lecturer in Criminal Justice, Department of Public Law, University of Cape Town. Image by ER24 EMS (Pty) Ltd, Flickr.
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