Under Pressure

40 Pages·2016·1 MB·English

Issue 3
October 2016
AFRICA
Under Pressure
Shrinking Space for Civil Society in Africa
This edition of Perspectives Africa is published jointly by the offices of the Heinrich-Böll-Stiftung in sub-Saharan Africa.
ABUJA
NAIROBI
CAPE TOWN
Heinrich-Böll-Stiftung
The Heinrich Böll Foundation is a publicly funded institution that is affiliated with but
intellectually independent from the German Green party. From our headquarters in
Berlin and 30 overseas offices, we promote civic participation in Germany, as well as in
more than 60 countries worldwide. Our work in Africa concentrates on promoting civil
society, democratic structures, gender democracy and global justice. Together with our
partners, we work toward conflict prevention and search for solutions to the challenges
of environmental degradation and the depletion of resources. To achieve these goals, we
rely on disseminating information, creating a deeper understanding between actors in
Africa and Europe, and supporting global dialogue.
Contents
4 Editorial
6 Is South Africa Reverting to a Repressive State?
Jane Duncan
17 Interview
A View from the Ground: State-Civil Society Relations in South Africa
Chumile Sali
20 From Undemocratic Laws to Violence: How South Africa’s Mine-Hosting Communities
Are Silenced
Brendan Boyle
25 Interview
Shrinking Spaces for Nigerian Civil Society?
Eze Onyekpere
28 The Role of the State in Shrinking Political Spaces for CSOs in Kenya
Njeri Kabeberi
32 Activists in the Trenches: A Profile of Kenya’s Wanjeri Nderu and Ruth Mumbi
Edith Honan
36 Interview
After the Honeymoon: How the Sudanese Government is Stifling Civil Society
and the Media
Nuba Reports
Editorial
In what can be described as the biggest South African civil society organisations
crackdown on civil society since the end of and popular movements are generally able
the Cold War, activists, non-governmental to pursue their various causes freely. How-
organisations (NGOs) and social move- ever, there is an increase in the number of
ments across the world are facing verbal incidents of political repression in violation
hostility from politicians, new laws and reg- of the country’s liberal constitution. Police
ulations that curtail their ability to operate, brutality and the surveillance of activists by
and outright violence. Africa is no exception. intelligence services are cause for serious
Uganda has become the latest African concern. There are also threats to media
country to tighten state control over the freedom, instances where protests were
civil sector and curb dissent. Among other unlawfully blocked, and political assassina-
concerns, the NGO Act 2016 gives a govern- tions at grassroots level. In June, the infor-
ment-appointed NGO board the power to mation service Africa Confidential reported
revoke or refuse to issue the required per- government plans to introduce new restric-
mit for organisations whose “objectives are tive NGO regulations. Some observers link
in contravention of the law of the country”. these trends to the increased influence of
In Uganda, homosexuality is outlawed and the “security cluster” in the administration
punishable by imprisonment. headed by President Jacob Zuma.
As the articles in this edition of Per- It is however important to also acknowl-
spectives show, restrictive NGO legislation edge democratic successes. Buhari’s 2015
is being mooted across the continent. In election triumph marked the first time that
Kenya, President Uhuru Kenyatta’s admin- an opposition candidate came into power
istration has drafted amendments to the in Nigeria. South Africa’s 2016 local govern-
Public Benefit Organisations Act that would, ment election, which saw the opposition
among other things, limit foreign funding Democratic Alliance take major urban cen-
of local NGOs. Some organisations have tres from the ruling African National Con-
been temporarily shut down in the name gress, highlighted the country’s democratic
of anti-terrorism measures. Police brutality maturity. Nonetheless, the phenomenon of
has reached alarming levels, as highlighted “shrinking space” for civil society is in line
by recent nationwide protests against the with an overall slowdown in democratic
extrajudicial killing of human rights lawyer gains on the continent. In the latest Free-
Willie Kimani, along with his client, Josphat dom House report, only 59 percent of sub-
Mwenda, and their driver, Joseph Muiruri, in Saharan countries are categorised as “free”
June 2016. or “partly free”. This is still higher than in the
In Nigeria, the picture is mixed. Consid- early 1990s, but down from 71 percent in
ering himself a “converted democrat”, former 2008. The majority of these states are elec-
military leader and now elected President tive but not liberal democracies – in other
Muhammadu Buhari has sided with civil words, governments with a thin veneer of
society against legislation that threatened procedural democracy but little appetite for
their use of social media, while also acting substantive accountability.
with a heavy hand in his quest for peace and Although the increasing restrictions on
stability against Islamist extremism. civil society in Africa are driven by multi-
5
faceted and context-specific conditions, political and economic elites to account.
three recurring themes can be identified. Moreover, the combination of population
Firstly, the growth of China’s presence on growth, especially in Africa’s urban areas,
the continent has mitigated Africa’s politi- the increased mobility of people and ideas,
cal and economic dependence on the West and changes in the aspirations, expecta-
and enabled African countries to push back tions and values of the continent’s emerg-
against what some perceive as Western ing middle classes threatens to overwhelm
interference in their domestic affairs. Chi- the means of control of those in power. Ven-
na’s own economic success has also revived ezuelan economist Moises Naim identifies
and strengthened support for authoritar- these factors as contributing to the “decay”
ian models of growth. Secondly, the con- of power worldwide.
sequences of counter-terrorism measures This, of course, does not mean that civil
– often promoted by the West – have had a society can sit back to watch it all unravel.
debilitating effect on civil society. Thirdly, But it supports the confidence and hope
the Arab Spring uprisings against authori- that, in the long run, the struggle to safe-
tarian regimes in North Africa have left guard political freedoms will not be in vain.
governments in the rest of the continent
acutely aware of the potential power of civil Jochen Luckscheiter
society and popular resistance. Programme Manager
It is this last point that provides for some
optimism in the gloom. At least in some Layla Al-Zubaidi
places, the pushback against civil society is Regional Director
also the result of their successes in holding
6 Is South Africa Reverting to a Repressive State?
Is South Africa Reverting to a
Repressive State?
Jane Duncan
Since the Marikana massacre in 2012,
several journalists, academics and
media commentators have argued that most visible manifestation of this shift, as is
the normalisation of the military in domes-
South Africa is reverting to a repressive
tic policing functions, which suggests a
state. They have interpreted violence at
growing militarisation of society.4 However,
the hands of the South African Police
the huge public controversies over police
Service (SAPS) generally, and Marikana
violence and police militarisation, mask
specifically, as signs that the post-apart-
the fact that there are fundamental shifts
heid social order can no longer be held in in the coercive capacities of the state, away
check through consent alone. They argue from overt repression and towards less vis-
that the ruling African National Congress ible, more pre-emptive forms of repression.
(ANC) and other powerful actors have What are the indicators of this shift and why
is it significant?
concluded that naked violence is now
needed to stabilise increasingly frac-
tious social relations.1 Some have even From Human Intelligence to
used the term “police state” to describe Signals Intelligence
post-Marikana South Africa.2 As a police
state is one where the police act as a The first indicator is that intelligence work
political force to contain social dissent has become increasingly important to stabi-
using arbitrary force, it is an important lising social relations. Surveillance provides
manifestation of a more repressive state. the state with a politically low-cost form of
social control, as abuses are very difficult
How likely is South Africa to descend into a to detect. Political surveillance is part of an
state of full-blown repression? How likely is arsenal of tools available to the state to pro-
it that there will be more Marikanas? Need- file problem subjects, and to use this knowl-
less to say, being able to answer these ques- edge to stymie protests they may consider
tions will have a major impact on the future to be problematic. The state can use such
trajectory of the country’s politics. There surveillance, or the threat of surveillance,
can be little argument with the statement to create fear that organised violence will be
that South Africa’s democratic government used against perceived opponents.
under its fourth president, Jacob Zuma, At the same time, the fear of being
has strengthened the coercive capacities of watched may force people to self-police
the state, consisting of the police, the intel- their own behaviour.
ligence and the military and located in the In South Africa, the state has expanded
Jane Duncan is a professor in the Justice, Crime Prevention and Security Clus- its surveillance capacities over the past dec-
Department of Journalism, Film ter. In fact, it would appear that this Clus- ade. In 2003, the Thabo Mbeki Presidency
and Television at the University
ter has become the praetorian guards of issued a directive requiring an expansion
of Johannesburg. She was the
executive director of the Freedom an increasingly embattled presidency.3 The of the-then National Intelligence Agency’s
of Expression Institute, and has well-reported growth in the levels of police (NIA) mandate to include political and eco-
written widely on freedom of
violence against ordinary civilians and pro- nomic intelligence. In the case of political
expression, the right to protest
and media policy. testors and police militarisation are the intelligence, the NIA was to focus on “…the
Is South Africa Reverting to a Repressive State? 7
strengths and the weaknesses of political secrecy, recent history of abuse of this man-
formations, their constitutions and plans, date and inadequate reforms to increase
political figures and their roles in govern- public accountability.
ance, etc”.5 These changes led to the intel- The risk associated with human intel-
ligence services ballooning in size. A year ligence is that the identities of intelligence
later, signs emerged that intelligence opera- operatives deployed to spy on organisa-
tives were becoming embroiled in internal tions can always be uncovered, leading
factional battles in the ANC: a problem that to politically-costly scandals about intel-
was proved to exist by a Commission of ligence abuses. As a result, the intelligence
Enquiry, which partly blamed the culture community has taken advantage of the
of secrecy in the intelligence services as a digital “revolution” to shift away from using
source of the problem.6
Shortly after Zuma took office, the
domestic and foreign intelligence services
Shortly after Zuma took office, the domestic and
were centralised into the State Security
foreign intelligence services were centralised into
Agency (SSA). The political intelligence-
the State Security Agency (SSA). The political
gathering mandate has also allowed the gov-
ernment to normalise spying on domestic intelligence-gathering mandate has also allowed the
political groupings on the most tenuous of government to normalise spying on domestic political
grounds.7 A document leaked to the media,
groupings on the most tenuous of grounds.7
and apparently summarising the SSA’s
National Intelligence Priorities for 2014
(which are classified, although they should
not be) - and which are developed every human intelligence (intelligence gathered
year to guide the use of the state’s surveil- through physical means) to signals intel-
lance capacities - states that the SSA should ligence (intelligence gathered from com-
investigate and engage in counter-planning munications surveillance). It is difficult to
for a “so-called “Arab Spring” uprising prior tell whether South Africa has embraced this
to [2014 national] elections’.8 The SSA claims global shift, but it would be unsurprising
it will resort to the “maximum use of covert if it has. While the government’s targeted
human and technical means” to counter interception capacities are regulated in
these threats.9 The document’s citing of the terms of the Regulation of Interception of
Arab spring – a legitimate struggle against Communications and Provision of Commu-
authoritarianism – is significant, as it implies nications-related Information Act (Rica),
that this protest wave in the Arab region was mass surveillance remains completely
essentially illegitimate. In the South African unregulated in terms of the law, which pre-
context, the risk of such a priority straying disposes these capacities to abuse. In fact,
from the covert surveillance of illegal politi- not only does South Africa produce mass
cal activity into legitimate activities should surveillance technology, but the state has
be self-evident: a risk that is strengthened funded its development10 and allowed it
by the SSA’s overly broad mandate, excessive to be exported, including to authoritarian
8 Is South Africa Reverting to a Repressive State?
regimes such as Libya, where the equipment to members in the division having used the
was used to spy on Muammar Gaddafi’s surveillance capacities of the state to spy
political opponents.11 on journalists. Yet, in spite of its increasing
importance to policing work, there are signs
of Crime Intelligence having lost its effec-
From Militarised Policing to
tiveness, leading to a resurgence of organ-
Intelligence-led Policing
ised crime.15
SAPS has embraced intelligence-led
The second indicator, closely related to the policing for several reasons. Police violence
first, is the shift from militarised policing to is eroding trust between the police and
intelligence-led policing. As its name sug- communities, making it more difficult to
gests, this policing model uses risk assess- revert back to community policing.16 Yet at
ment as its main tool to direct policing the same time, SAPS cannot risk many more
decisions about where and how to inter- high profile shoot-outs with protestors, as
vene. The model is more recent than para- the long-term political costs will simply be
military policing, as it was conceptualised too great. So, it stands to reason that the
in Britain and the United States (US) in the SAPS would search for a policing model
1990’s, but it really gained currency after that still allowed them to contain dissent
the September 11 attacks on New York and using a less politically-risky approach, and
Washington. Intelligence-led policing relies intelligence-led policing provides just such
heavily on covert techniques for crime- a model.
detection, including paying informants,
spying on individuals and organisations,
From Post-hoc to Pre-emp-
the use of Closed Circuit Television (CCTV)
tive Repression of Protests
cameras, communications surveillance and
the interception of voice and data traffic.12
Intelligence-led policing does not nec- The third indicator is an increasing use of
essarily make human rights violations go pre-emptive methods of containing protests
away; it merely makes them less visible. through manipulations of the Regulation of
This form of policing encourages problem- Gatherings Act (RGA), to stop more protests
atic profiling of individuals or social groups from spilling out onto the streets in the first
that may resort to crime, which can lead to place. In a research study I led on the right
stereotyping of particular social groups as to protest in eleven municipalities17 - and
being predisposed to crime. Activists who which involved the physical collection and
are considered to be politically threaten- logging of municipal data about gatherings
ing to existing ruling groups may be placed and protests over a five year period (2008-
under surveillance to gain more informa- 13) – I found that none of the municipali-
tion about their activities and to intimidate ties studied received a clean bill of health. A
them, which risks chilling political activ- research team collected all notifications for
ity. The US police used intelligence-driven protests and gatherings sent to municipali-
policing to infiltrate organisations linked to ties in terms of the RGA: they yielded incred-
the anti-globalisation movement, to iden- ibly rich data about how many protests were
tify and isolate “troublemakers”.13 But like taking place relative to gatherings, the rea-
overt forms of violence, generalised surveil- sons for the protests, the protest actors and
lance techniques also erode public trust in municipal responses to the protests.
the state: in fact, the latter can do so more The municipal and the police statistics
readily than the former as surveillance pro- suggest that the majority of protests take
ceeds from the premise that states do not place peacefully and uneventfully, which is
trust their citizens from the outset. not the dominant image of protests either
In South Africa, the Crime Intelligence in the media or the public imagination.
Division of SAPS holds the key to this new In fact, from SAPS’s Incident Registration
policing strategy, so it is unsurprising that Information System (IRIS) database for the
this Division has become so powerful (and areas with the most unrest-related incidents
controversial) in recent years, as this polic- between 2009 and 2012 18, it became clear
ing model makes it the lynchpin of polic- that despite being labelled unrest-related,
ing strategies.14 Heightened power without most of the protests did not escalate beyond
heightened accountability is a recipe for barricade-building and tyre-burning, and
disaster. A case currently being heard in the in fact were recorded as being fairly inci-
Pretoria Commercial Crimes Court points dent-free.19 The protests recorded in the
Is South Africa Reverting to a Repressive State? 9
Peaceful versus unrest-related crowd management incidents
in South Africa – 1995 - 2012
14000
12000 11842
11601
10832
10156 10517
s 10000
t
n
e
d 8981
of inci 8000 8189 8299 7173 78667858 7993
ber 6000 6332 6224 7014 6631 6640 6342
m
u
N
4000 4019
2000 1882 1907
1494
1048 10701025 712 576 585 562 660 965 753 755 753 1-14974 1126
0 0
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013
— Peaceful crowd-management incidents — Unrest-related crowd-management incidents
municipal records constitute a humdrum to change how they administered the RGA.
of protests, taking place day in, day out This shift increased the already-onerous
throughout the country with little incident. bureaucratic obstacles municipalities put
Between the media and police hype about on protests, many of which already shared
“violent service delivery protests’, it is this an assumption that the notification process
wider picture of peaceful protests that is so in terms of the RGA was actually a permis-
often missed, and unsurprisingly so. The sion-seeking exercise, and that they had the
security cluster can use images of maraud- right to grant or deny “permission” to con-
ing mobs, apparently predisposed to vio- venors to engage in a gathering or protest.
lence, to create moral panics in the public This municipal misapprehension of the pro-
about protests, to turn the public against cess set the tone for how notifications were
protestors (even those whose demands are dealt with, both by the municipalities and
legitimate), and to justify heightened secu- by the police. Practices that limited the right
rity measures against them. unduly included a requirement on the part
Yet in spite of protests remaining largely of convenors to seek a letter from the institu-
peaceful, all the municipalities surveyed tion or person they were marching against,
instituted unreasonable restrictions on the guaranteeing that they would be willing to
right to protest, and these have curtailed accept the memorandum. The rationale for
this right to varying degrees. While the mis- seeking such an assurance appears to be to
application of the RGA has been a problem prevent frustration on the part of protestors,
at least since the early 2000’s20, a particu- which could boil over into violence. How-
larly significant shift became apparent from ever, it has also become a censorship device,
2012 onwards. In the wake of the local gov- where those who are being marched against
ernment elections, the Department of Co- can squash the protest simply by refusing to
operative Governance sent out a circular to accept the memorandum.
local governments that outlined proactive The City of Johannesburg requires pro-
measures that municipalities need to take to test convenors to seek permission from a
deal with protests. These measures included ward councillor to protest, and after the
“… [working] with the office of the speaker 2012 Co-operative Governance memo, they
[and] public participation units to ensure and the Mbombela municipality, instituted
ongoing engagement between councillors a filtering system to reduce the number of
and communities and residents’.21 Several service delivery protests, where conven-
municipalities used this memo as a pretext ors need to show that a meeting took place
10 Is South Africa Reverting to a Repressive State?
between the mayor’s office, the commu- The evidence supports a view of the state
nity and the ward councillor involved in put forward by Gramsci that it is not mono-
that community, or at the very least that an lithic, but is rather a site where ruling class
attempt was made to bring all parties to the alliances take place or even shift.25 In times
table to resolve the issues at hand.22 But this of significant political de-alignment, ele-
prescription is not lawful, as the RGA does ments of the state can even work against one
not prescribe what process people should another. Erratic repression is likely to occur
follow before they take to the streets. The when divisions have opened up within the
number of “approved” protests increased political elite, or between the political elite
in Mbombela once the filtering process and the bureaucratic layer: in such cir-
was introduced, suggesting that the poten- cumstances, spaces for alternative voices
tially “troublesome” protests did not even remained open, albeit constrained and sub-
enter into the system. But the municipality ject to reversal.
did admit that the condition had led to an Internationally, the academic literature
increase in the number of “unrest-related” has recognised the fact that ruling elites
have expanded their repertories of social
control beyond outright repression: as a
result, the literature has shifted away from
While the municipalities studied have gradually
focussing on the concept of repression,
closed spaces for the right to protest, this closure to that of pacification. According to Kein-
is highly uneven and subject to considerable scherf, pacification includes measures that
contestation. Spaces were much more closed where “…produce undisruptive and unthreatening
forms of collective action”.26 However, this is
the political and economic elite were united in their
not to say that repression as it is commonly
intentions to stifle protests.
understood, and pacification, are mutually
exclusive: in fact, they can be complimen-
tary strategies. For instance, the intelligence
protests, taking place outside the framework services can be used to separate out “good”
of the RGA, and that the police were more protestors from “bad” protestors, and the
likely to be heavy-handed against such a resulting protest policing may be either
protest. These were led mainly by individu- facilitative or militarised depending on the
als or organisations that were in dispute with type of risk management strategies that
the structures they were meant to negotiate the police identify through the intelligence
with, suggesting that an increasingly restric- gleaned.27 But the fact that the elites have
tive approach towards protests on the part of found it necessary to shift from more visible
the municipality was changing the character to less visible forms of social containment
of the protests, forcing them to become what at all, is not a sign of their strength; rather it
the authorities would consider “unlawful” is a sign of their weakness as they recognise
and driving up the potential for the protests the fact that they lack the capacity to repress
to become disruptive. openly. Why is this so? The next section will
While the municipalities studied have attempt to answer this question.
gradually closed spaces for the right to pro-
test, this closure is highly uneven and sub-
Organic Crisis: Growing
ject to considerable contestation. Spaces
Popular Capacity for
were much more closed where the politi-
cal and economic elite were united in their Independent Action
intentions to stifle protests and prevent
criticism and alternative forms of mobili-
sation: but this unity was not found uni- It seems fair to say that South Africa is mani-
formly across the municipalities. As Oliver festing more elements of a classic Gramscian
has argued, erratic government repression organic crisis. For Gramsci, crises become
arises not because the government has cho- organic when they are thrown up directly by
sen to be erratic, but because of inconsisten- contradictions in how the capitalist system
cies among political actors.23 Furthermore, functions, when they are dynamic in that
non-conventional actors are more likely to they are not confined to particular actors,
be repressed than conventional ones (such events, issues, or moments in time or place,
as unions or well-known political parties), and consequently when they are a process
as the security apparatus consider the for- rather than a momentary eruption. The
mer to be less predictable than the latter.24 demands being raised may be diverse, and