Constitution Watch 4/2019 Criminal Nuisance and the Right to Protest 18 February 2019 Demonstrations serve this purpose and another one too: bringing issues to the notice of the wider general public, serving as catalysts for public debate. Without the right to demonstrate, democracy is stultified. Interpretation of sections 58 & 59 of the Constitution Because freedom of association and freedom to demonstrate are so important to democracy, sections 58 and 59 of the Constitution must be interpreted broadly to give them the widest possible scope. This is laid down by section 46 of the Constitution itself, which states that “full effect” must be given to the rights and freedoms laid down in the Declaration of Rights [of which sections 58 and 59 form a part] in order to promote “the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom”. While laws may limit the freedoms, the limitations must be “fair, reasonable, necessary and justifiable in a democratic society …” [section 86 of the Constitution]. Put more briefly, as our Supreme Court did, the rights and freedoms protected by the Constitution must be interpreted broadly, and limits on them must be interpreted strictly and narrowly – and certainly not so as to nullify the rights and freedoms. Peaceful It should be noted that section 59 of the Constitution contains its own limitation: the section protects peaceful demonstrations, not violent ones. Peacefulness, however, is a relative term. All large demonstrations carry an incipient threat of violence simply because a crowd of people have gathered together to express their united support for or opposition to a particular cause. Demonstrations in a street may block traffic or prevent pedestrians from walking on a pavement, but that in itself does not amount to violence even if there is an implied threat that the demonstrators will forcibly resist any attempt on the part of traffic or pedestrians to force their way through the demonstration. Chanting or shouting by demonstrators, also, cannot be regarded as violence even if bystanders object to what is being chanted or shouted. The Constitution protects the right to demonstrate for unpopular as well as popular causes. In short, disturbance cannot be equated with violence. Demonstrations that create a disturbance are protected by the Constitution; after all, creating a disturbance is often the object of a demonstration. Demonstrators want the authorities and the public to sit up and take notice of their demands. A further point is that, according to a judgment of the Constitutional Court in South Africa, if some demonstrators resort to violence while the majority remain peaceful their demonstration is still protected by the Constitution: individuals do not lose their right to demonstrate peacefully simply because of sporadic violence committed by others. Public Nuisance and Freedom of Association and Demonstration From these principles the following propositions can be drawn: • It is generally wrong for participants in a non-violent demonstration to be arrested and charged with public nuisance, if what they are charged with doing was a legitimate exercise of their constitutional right to demonstrate.