Address the cause of police brutality and the symptoms will abate

9 April 2020

A controversy has been sparked by the way in which police brutality and abuse is managing to keep deaths at the hands of violent police personnel at level pegging with the rate of mortality due to the Covid-19 pandemic in SA during the current lockdown and state of disaster.

What’s going on in the townships during the state of disaster is beginning to resemble the state of emergency declared by apartheid Minister PW Botha in the 1980s, according to an article by attorney Mzukisi Makatse on the Politicsweb site. He argues the great irony of this legacy in the current crisis is that black people again are the victims of state brutality. Makatse writes: ‘Interestingly, if tragically, our army and police treat white people with the highest levels of respect and dignity whenever the latter contravene these regulations. [This]is in stark contrast to the brutality and indignity that black people have been subjected to.’

He adds that the fundamental abuse of black people’s rights by some SANDF and SAPS zealots ‘is in itself a violation’ of the measures introduced by the government to protect South Africans, ‘and is totally unacceptable. It is a dereliction of their responsibilities as prescribed in our supreme law, the Constitution, and deserves unbridled condemnation,’ he writes.

Comment on this phenomenon in the Mail and Guardian bears mention:

‘Although there is a clear need for aggressive measures to address the spread of Covid-19, there is simultaneously a need to ensure that there is accountability and transparency in the development and implementation of these measures. With the present rapid expansion of state power, we need to be vigilant to ensure that any measures taken by the state are reasonable, justifiable and constitutionally-compliant, and that increasing regulatory creep does not extend beyond the proclaimed disaster period.’ Public interest lawyers Avani Singh and Michael Power add that the declaration of a national disaster does not permit the state and its security services to depart automatically from the rights entrenched in the Constitution. ‘Any departure must always be reasonable and justifiable in terms of the Constitution’s limitations clause, which includes a consideration as to whether there are less restrictive measures available to achieve the desired purpose of the limitation.’

Not to be outdone, the Democratic Alliance has weighed in with a press release penned by its shadow minister of police, Andrew Whitfield MP, which reads, in part:

“The Democratic Alliance (DA) is horrified by reports of an Independent Police Investigative Directorate (IPID) report which alleges that since the start of the Covid-19 lockdown operation, 2 people have died in police custody and 6 as the result of police action.

This staggering figure of 8 deaths in as many days is proof that Police Minister, Bheki Cele's approach of 'skop, skiet and donner' is undeniably harmful and completely at odds with the fight against the disease and the role that the police should play.

The report reveals a further 30 incidents where people have suffered due to some form of misconduct by the police and one incident of rape at the hands of a police officer. We call on the IPID to investigate these vile acts which have been perpetrated against the public without fear or favour and to ensure that the responsible officers are duly accountable.”

He goes on to invite the public to report police abuse and calls for:

“… The National Assembly to provide for stronger and stricter oversight over the national executive authority, organs of state and ensure the protection of the civil liberties of South Africans during the lockdown.

The DA also encourages the public to make use of our newly launched WhatsApp number and e-mail platforms, which South Africans can use to report acts of violence by law enforcement officers. Anyone who wants to report incidents of abuse by law enforcement officers can WhatsApp the DA on 067 977 9324 or e-mail [email protected].”

This DA press release prompted a sharp response from Accountability Now, under the heading:

 “Address the cause and the symptoms of police abuse will abate”:

“It is national policy, as per the NDP, that the police should be demilitarized.

It is a duly cabinet accepted recommendation of the Farlam Commission that the demilitarization be effected as a matter of priority.

It is the duty of the parliamentary police portfolio committee to exercise oversight over the minister of police who has never shown the slightest inclination to implement the lawful policies of the government of the day. Indeed, before he was dismissed by then President Zuma from the office of national commissioner of police, the Moloi Board of Inquiry into his fitness to hold that office described Cele as “dishonest and incompetent”. It also recommended that he be investigated for corruption. It is a mystery that he is allowed to grace the cabinet. And a disgrace that he has not been investigated for his corrupt activities around overly expensive leases for SAPS offices.

Instead of heaping symptoms of the brutality of the police onto IPID, the loyal opposition should address the cause by compelling the minister to demilitarize SAPS, which he can do at the stroke of a pen. The portfolio committee should have him on its carpet for not implementing national policy. If necessary, Judge Farlam can be asked to explain to the committee why he made his urgent demilitarization recommendation.

The president needs to explain to parliament, the portfolio committee and the nation why he keeps Cele in his cabinet when he has so poor a track record, does not implement policy and is so horribly out of step with the express presidential “be kind” instruction to SAPS and the military , given when he announced the lockdown.”

At the time of writing no response has been received to the email to the DA.

When the new order dawned in SA it was no longer necessary for a police force to be used as the blunt instrument for the repression of the majority of the inhabitants of the land. That new dawn brought with it a justiciable Bill of Rights, a commitment to respect human dignity and a system of governance based on openness, accountability and responsiveness.

The place of the old police force was taken over by the new police service. The Constitution itself contemplates the establishment of the SAPS (South African Police Service) and the clear break with the past is not only in the name of the organisation. The provisions of Section 205(3) of the Constitution are unambiguous:

“The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law”

The notions “protect and secure” are a far cry from “suppress and harass” which is what the old police force was expected to do in order to keep an unpopular, authoritarian and racist regime in place. The reports quoted from above all suggest that old habits of the police are hard to reform. The retention of their old habits can be understood as they are answerable to a minister who announced the lockdown with the words:

"Come 23:59pm tonight, life stops."

Unfortunately, the old “skop, skiet en donder” ethos of the old police force has not been eradicated in the police service. It is regarded, both by Corruption Watch and the ISS, as the most corrupt of government institutions. Its leadership is prone to jailing (Selebi) investigation (Phiyega and Cele) prosecution (too many to name – ask Paul O’Sullivan) and to constant rotation in a cadre deployment merry go round in which loyalty to party trumps merit and fealty to constitutional values.

For condoning the failure of Cele to implement government policy, the police portfolio committee, which is meant to exercise oversight, has a lot to answer for to the public. For retaining Cele in his cabinet, the president is also accountable to the people and to his party.

The NDP policy in relation to the police and the duly accepted recommendations of the Farlam Commission happen not to suit the preference of the minister. And that is that, “finish and klaar” as Jackie Selebi was fond of saying.

It is fervently to be hoped that some good will come out of the current lockdown: if it is a demilitarised police service properly led by honest and competent managers, who are promoted on merit and not as loyal cadres of the national democratic revolution, so much the better.

For this felicitous development to occur parliament is going to have to exercise oversight robustly; the policy theoretically in place is going to have to be implemented and the minister is going to have to accept that the police service is indeed a service, not a military force or some personal fiefdom. Assuming the minister is not put out to pasture by the president and replaced with someone else who is more attuned to the “kind” approach of the president to the lockdown.

Paul Hoffman is a director of Accountability Now