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SOUTH AFRICA: Rights groups take on law after Free State healthcare workers conviction

October 2015 DailyMaverick; The 94 accused in Bloemfontein hardly sound like criminals. On Friday, profiles of the healthcare workers were read to the court, describing their hardships since losing their jobs last year. Most joined the profession after experiencing illness, personally or through friends and family, and worked in fields such as HIV/Aids counselling, assisting disabled children and orphans, and advising communities on medication regimes.

Since I stopped working I am now bedridden with grief. The bills are piling up,” said one accused from Welkom.

After a year of court delays, the ‘Bophelo House 94’ were found guilty of contravening the Gatherings Act when 130 healthcare workers staged a peaceful vigil outside the Free State provincial health headquarters last July. The impact of the case could be far-reaching, a blow for the right to protest against a broken system.

This judgment essentially declares any gathering of people or protest to be unlawful,” said Treatment Action Campaign (TAC) general secretary Anele Yawa. “It makes a mockery of our constitutionally guaranteed right to peaceful protest. It is a judgment that you would expect in a police state, not a constitutional democracy.”

Yawa said the prosecution was aimed at punishing those who spoke out against unfair dismissal and the crisis in the Free State health system. “The arrests and the prosecution are a flagrant abuse of the state apparatus and aim to suppress healthy democratic dissent. We will appeal this judgment in the interests of all people in South Africa in order to make clear that the right to assemble cannot be violated in this way.”

The province dismissed 3,500 healthcare workers last year. After the workers were denied a meeting with MEC Benny Malakoane, some, mostly women and many of them elderly, led a non-violent overnight vigil before they were detained by police and locked up for 36 hours. Initially 130 were charged, but as the state refused to drop the charges some pleaded guilty to avoid harsher punishments and further trips to court. In total, the group has been to court seven times.

The accusations against Malakoane and the provincial health system are important. The TAC and other groups have called for the MEC to be fired and consistently pointed out problems in the Free State health system. In the eyes of the activists, the arrest, detention and prosecution of the healthcare workers is political persecution aimed at punishing dissent.

The defence for the Bophelo House 94 argued that their vigil was not prohibited. “According to the Gatherings Act, a gathering can only be prohibited in very specific, and severe, circumstances, which are set out explicitly in the Act, and through a certain process, also set out in the Act. In this instance, it is indisputable that the circumstances in which a gathering may be prohibited did not exist and the relevant procedure was not followed. The court did not find that the Bophelo House 94 posed any threat to public safety or to property during the vigil,” a TAC statement said last week.

The state’s lawyer noted that the vigil was peaceful but argued that the group should have applied for permission and that there was no urgency to the event. The magistrate judged that if there was no permission to protest, it was unlawful.

John Stephens from Section27 said if the judgment stands people can only exercise their right to protest if they receive express permission. “This understanding of the law is eerily akin to apartheid’s infamous Internal Security Act and is diametrically opposed to our constitutional dispensation,” Stephens said on Sunday. That 1980s apartheid law brought together past legislation limiting the right to gather to significantly curtail protests.

Civil society groups have often complained about the Gatherings Act. At its national summit this year, Right2Know said it would support strategic challenges to the law and amendments for a better legal framework on the right to protest. Right2Know’s Murray Hunter said the Gatherings Act provides some protection for protest in a climate in which it’s denied. However, he pointed out the bureaucratic and administrative hurdles the law creates to prevent protesting, which is a guaranteed right.

Possibly the biggest problems of the Gatherings Act is that it carries these criminal convictions or that it’s a criminal offence to violate the Gatherings Act in almost any way. So if you look at what happened with the Treatment Action Campaign and community healthcare workers in the Free State we’re talking about what is ultimately a peaceful protest,” said Hunter.

There was no serious harm done by this protest. The concerns and demands that were being raised were completely legitimate and I would say it’s a completely legitimate protest but these people face criminal conviction for having not jumped through the administrative hoops that are required by the Gatherings Act,” Hunter continued. “Effectively what we have is an Act that was passed in the dying days of apartheid responding to conditions, responding to a political time that is no longer with us and the Act is unable to tell the difference between what are legitimate forms of dissent of protest, and dissent and expression and a criminal act.”

Right2Know has put together a booklet on understanding the Gatherings Act to ensure applicants can protest but in the long-term it wants the laws to be modified to ensure the right to protest.

The Social Justice Coalition also wants aspects of the law declared unlawful. After 10 of its members were convicted for holding a protest last year over sanitation issues in Khayelitsha without giving notice, the group will challenge provisions of the Act in an appeal in the Western Cape High Court, in a bid to have the right to peaceful protest protected.

Before the trial of the Free State healthcare workers, Lotti Rutter from the TAC and Thuthukile Mbatha from Section27 noted the case of 60-year-old Ouma Chabangu. “On the one hand Ouma and her colleagues are victims of our increasingly vindictive state. They are victims of a Free State state apparatus that have been hijacked by narrow political interests,” they said. “On the other hand though, people like Ouma also offer hope to the rest of us since they refuse to yield to the flagrant abuse of power. MEC Malakoane and his cronies may not believe in our Constitution and in the rights enshrined in it, but Ouma and her colleagues do believe in it and are willing to fight for it – and we are committed to supporting them every step of the way.”

As Ouma Chabangu and her fellow healthcare workers have fought for their jobs and for improvement in a broken system, they’ve earned criminal records. If the law continues as is, she and others will continue to be criminalised, often on a political whim, for standing up to important societal challenges.


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