Universities must uphold the international right to protest
As more universities lose their public character, they are tempted to act as though they are purely private bodies, and their growing reliance on student fees and third stream income increases this temptation. As a result, they may think that they have the right to set their own rules for forms of democratic expression on campus, such as assemblies, with little regard for international human rights standards.
Universities also risk becoming less tolerant of criticism, as marketisation makes them more concerned with protecting themselves from reputational damage to maintain their private income streams.
These remarks are not pure supposition. Italian academic Lorenzo Cini has found in his research of student movements in Italy and Britain that the more marketised a university, the less tolerant it is of internal dissent. On the other hand, the more public a university is, the more open it is to negotiating with its internal critics.
Threats to rights and freedoms
How should protests be managed on campus, given these threats to basic democratic rights and freedoms? Earlier this month, the Department of Journalism, Film and Television and the Department of Communication at the University of Johannesburg in South Africa, explored this question in a seminar in the wake of the South African student protests.
Some of these protests have turned violent, which has prompted universities to increase security measures on campuses. The police and the State Security Agency have also become involved in monitoring and policing the protests. Critics of these measures have argued that securitising campuses creates more problems than it solves, while universities have argued that the measures are necessary to secure the rights of others on campus.
United Nations report
The seminar discussed the implications for universities of a recently released report on the proper management of assemblies, authored by the United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, and the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns (whose term of office has ended).
The report, which provides very useful guidelines for managing assemblies, was presented to the UN Human Rights Council earlier this year. It includes the inputs of over 100 experts and over 50 member states.
Its authors recognise that assemblies are important forms of democratic expression to ensure that power-holders are held to account. As a result, they proceed from the point that freedom of peaceful assembly is an inalienable right and not a privilege, which applies to all forms of assembly, including protests.
They argue that state actors should have positive duties to facilitate assemblies, limiting the right only on very narrow grounds and for a legitimate purpose (for instance, to protect public safety).
While the report is silent on the question of universities, its authors argue that managers of private spaces that serve a public function should treat them as public spaces when managing assemblies. By implication, the basic principles set out in the report should apply to universities, even if their precise legal identities remain unclear.
Free intellectual activity
Given that universities are public in nature (or are at least meant to be), and play an educational role at that, they have a particular duty to facilitate basic rights and freedoms. In fact, universities should act as thought leaders on the conditions for free intellectual activity, setting an example for other actors in broader society.
With regard to where assemblies should be held, the special rapporteurs argue that "assemblies, including spontaneous assemblies and counter-protesters should, as far as possible take place within sight and sound of their target".
They continue: "[Blanket] bans, including bans on the exercise of the right entirely or on any exercise of the right in specific places or at particular times, are intrinsically disproportionate, because they preclude consideration of the specific circumstances of each proposed assembly."
For the rapporteurs, if a protest is held in an area that is far away from the people or institutions that are the focus of the gathering, then the effectiveness of the gathering is reduced and its purpose undermined. The place of the gathering cannot be prescribed in advance; it depends on the particular circumstance of a gathering, which must be considered on a case-by-case basis.
Designated protest areas
This means that the designation of particular areas for protests is a disproportionate restriction on the right to assemble. Yet, universities have been known to confine protests to designated areas.
The rapporteurs also make it clear that conveners should not have to ask for permission to assemble. However, it is not unreasonable to expect them to notify the relevant authorities of their intention to do so, as this would give them an opportunity to make practical arrangements for the assembly.
The notification process should not be overly bureaucratic, though, and spontaneous assemblies should be recognised as a legally protected form of assembly. According to the report, “Failure to notify authorities of an assembly does not render an assembly unlawful, and consequently should not be used as a basis for dispersing the assembly. Where there has been a failure to properly notify, organisers, community or political leaders should not be subject to criminal or administrative sanctions resulting in fines or imprisonment”.
This means that universities should not take disciplinary action against convenors purely for a failure to notify, if the assembly was peaceful. Universities may also be tempted to place restrictions on content deemed to be offensive, to set a positive example to students.
A generally accepted principle of regulating assemblies, though, is that time, manner and place restrictions are far more justifiable than content restrictions, which must be used in only the most compelling of circumstances (such as hate speech or incitement to imminent violence).
According to the report, “Participants in assemblies are free to choose and express the content of their message. Restrictions on the content of assemblies may be imposed only in conformity with the legitimate limitations on rights outlined above …Where a content-based restriction is justified, authorities should take the least intrusive and restrictive measures to address the issue”.
This means that universities should prohibit the content of protests only when there is a clear and present danger that the content will incite harm. As a general rule, prior restraint on the content of protests cannot be justified.
The rapporteurs also argue that state actors must tolerate assemblies, and especially protests, even if they are disruptive. All assemblies are disruptive to different extents; however, these actors must tolerate temporary disruptions because the dangers to democracy of limiting this right are far greater than the inconvenience caused by the disruption.
However, universities have been known to prohibit assemblies that are merely disruptive. In the South African case, wide-ranging interdicts have prohibited disruptive protests, in spite of the fact that national legislation, the Regulation of Gatherings Act, sets the bar for police intervention at serious disruption. Even then, the police must enter into negotiations with convenors before using force to disperse the assembly.
The report notes that grounds for the restriction and prohibition of protests should be set out in law or policy, and should be narrowly tailored to prevent genuine threats to public safety. Limitations should not be used to deny the right unduly or arbitrarily.
In many countries, the police do not enter campuses as a general rule, as doing so is widely considered to be a socially unacceptable violation of university autonomy. As a result, universities may feel that they lack the level of force necessary to respond to violent protests, which may lead them to restrict protests more readily than state actors. They may also boost their on-campus security capacity with private security guards.
However, these arguments should not be used as a basis to pre-emptively limit the right to assembly beyond what the law allows for. Such limitations would be disproportionate as it anticipates a potential disturbance that may or may not happen. In any event, if protests turn violent, a university can still call the police onto campus. Rather, the presumption should be in favour of peaceful assembly.
The rapporteurs also argue that “…. [civilian private security services] should not perform policing-type functions in relation to assemblies. However, where this occurs, such services must respect and protect human rights and should comply with the highest voluntary standards of conduct”.
Use of force
They also note that when force is used, it should only be proportional to the level of threat to public safety. The main purpose of policing should be de-escalating the situation. As a general rule, peaceful protests should not be dispersed.
Furthermore, if protestors commit violent acts, then they should be held liable individually and severally: in other words, the whole assembly should not be made responsible for the actions of these individuals. Firearms should not be used for crowd control; neither should paramilitary units be deployed, as they are trained to use maximum force, rather than minimum force.
Yet on several South African campuses, inappropriately trained private security guards have meted out collective punishment to student protestors. They have even attacked journalists covering the protests, which violates their right to monitor and record these protests as recognised in the report.
While the public police’s actions have, at times, been more restrained than private security, they have also been known to use violence even against peaceful protests and engage in arbitrary arrests.
A paramilitary unit that was at least partly responsible for the Marikana massacre (the Tactical Response Team), and which has not been held to account yet for their role, has been visible on some campuses.
Human rights abuses
South African universities have defended their security responses to the protests as being necessary to secure public safety; but when measured against the UN report, it becomes clear that they and the state are responsible for a slew of human rights abuses.
Official overreactions have escalated the situation and fuelled protestor counter-violence. As attitudes have hardened on all sides of the conflict, violence apparently linked to the protests has become less sporadic and more organised (although the perpetrators still need to be identified). These escalations have been recognised elsewhere as predictable responses to overly securitised official responses to protests.
It is in the best interests of the higher education sector to be proactive on the special rapporteurs’ report, and stress test their policies on assemblies against it. The report’s contents have been distilled into 10 principles, with indicators for each principle, as well as a checklist that universities can use to determine their levels of compliance.
In the long run, if universities fail to uphold basic democratic rights and freedoms, then they are likely to cause themselves far more reputational damage than their critics. Such official self-harm could see universities losing moral authority, and intellectual energy shifting from universities and towards public culture.
In any event, this shift is already underway, given the precariousness of academic work. Once society’s most important conversations stop happening in universities, and happen elsewhere, then it is only a matter of time before they lose relevance and atrophy.
Jane Duncan is a professor in the Department of Journalism, Film and Television, University of Johannesburg, South Africa. Her most recent book Protest Nation: The right to protest in South Africa, has just been released by UKZN Press.