Illegitimate policing practices in a democratic state

NATALIE JAYNES

On 16 August 2012 the South African Police Service (SAPS) made international headlines when police opened fire on striking miners, killing some 34 and wounding 78 at the Lonmin-owned Marikana mine. It is an open question as to whether the SAPS will ever fully recover from the massive loss in public confidence following the Lonmin/Marikana incident. What, if anything, does it mean for reconciliation when those mandated to play a role in preventing and reducing crime and violence lose legitimacy?

Is there a relationship between reconciliation and police legitimacy? The South African Reconciliation Barometer suggests that there is. The Barometer employs six hypotheses to understand reconciliation. These hypotheses help to unpack the concept of reconciliation into measurable indicators. One of the hypotheses relates specifically to political legitimacy and suggests that legitimacy and accountability are good for reconciliation, and that their absence is damaging for reconciliation. If we apply this hypothesis to the current public sentiment towards SAPS then it suggests that the actions of SAPS matter for reconciliation. If we continue the logic of this hypothesis then it could be argued that to the extent that SAPS lose legitimacy and are not held sufficiently accountable for their actions, we will run the risk of weakening an already fragile reconciliation.

Even if reconciliation is not weakened, it is fair to suggest that some public good is jeopardised by diminished police legitimacy. The drafters of the TRC Report acknowledged this by making clear recommendations about the need to improve public confidence and trust in the police, particularly given the role of the police in propping up the apartheid state. Interestingly, the very issues that the TRC Report identifies as being central to regaining police legitimacy are the issues that continue to plague the SAPS, nearly 20 years into the country’s democracy.

While the 1994–99 period saw a strong push to institutionalize democratic policing practices, this momentum has not been sustained, and some have argued that positive efforts have even been reversed since 1999. Two broad areas are highlighted below – police use of force and weak SAPS leadership.

Use of force

Because apartheid-era policing was marked by the excessive use of force with little to no accountability or oversight, reform efforts placed a premium on establishing legislative obligations to control and limit police use of force and improve police oversight and accountability for abuses. In post-apartheid South Africa, police use of force and firearms is governed by the SAPS Act (No. 68 of 1995), the Firearms Control Act (FCA), and the Criminal Procedure Act (No. 51 of 1977). This legal framework places an obligation on the state and on police to protect citizens and exercise caution and restraint when using force. The SAPS Act articulates this obligation clearly: ‘Where a member who performs an official duty is authorised by law to use force, he or she may only use the minimum force which is reasonable in the circumstances’ (SAPS, 1995, s. 13(3)(b)). In addition, particular legislative provisions concern safe storage of firearms and types of weapon and ammunition to be used, all with the intention of limiting irresponsible use of firearms and unnecessary use of force (RSA, 2000, s. 120(3)(a–b); Operational Response Services, 2004; State President’s Office, 1994, s. 9(2)).

For example, the Criminal Procedure Act governs the use of force in effecting an arrest. Following an incident in 1999 in which a civilian shot and killed a fleeing burglary suspect, the law was challenged in the courts and was eventually found to fall short of constitutional muster (CCSA, 2002). The Constitutional Court ruled that the Criminal Procedure Act needed to be amended to reflect more clearly the principles of proportionality and least degree of force possible in effecting arrests. The proposed amendments were debated in Parliament and ultimately included in the Criminal Procedure Amendment Bill (B26-2012).

Since 2011, the SAPS has come under growing public scrutiny of its use of force and firearms. In April 2011, for instance, police beat and shot a schoolteacher during a protest march in Ficksburg in the Free State Province; the teacher subsequently died. The public outcry following the Ficksburg shooting led the South African Human Rights Commission (SAHRC) to investigate. In November 2012, the Commission released its report, which concludes that the SAPS had used excessive force, had violated the applicable legislative prescriptions, and had failed to deploy sufficiently trained and equipped members. The report recommends that the SAPS improve training of its members in the management of public gatherings. The findings of the SAHRC take on a particularly ironic and tragic hue given that the Marikana incident took place a few weeks before the SAHRC report was released.

In addition to incidents of excessive use of police force on duty, there are also growing concerns about off-duty police officers using their service firearms in domestic violence and murder–suicide. In fact, these kinds of incidents became so frequent as to lead to an official investigation in 2009. The results show that, in 80 per cent of the cases investigated, the murder weapon was a SAPS member’s service firearm. The study attributes the high prevalence of femicides committed by SAPS members to the high stress levels involved in their day-to-day working conditions and notes the lack of psychosocial support available for SAPS members. The report singles out the easy access to firearms as ‘the most worrying factor in femicides committed by SAPS members’ (ICD, 2009, p. 39).

SAPS leadership crises

At the leadership level, two of the four post-apartheid national police commissioners were found guilty of fraud and corruption between 2009 and 2011. In addition, the head of SAPS Crime Intelligence was suspended in 2011 after being charged with murder and fraud. There are also criminal investigations underway into the activities of an elite unit within the SAPS known as the ‘Cato Manor Hit Squad’.

A disconnect has also been apparent between the legislative commitments to democratic policing and statements by police and other government leaders. In 2008 Deputy Minister of Safety and Security Susan Shabangu made headlines when she addressed an anti-crime summit and instructed police, ‘You must kill the bastards [criminals] if they threaten you or the community’.

The current minister of police, Nathi Mthethwa, and former national police commissioner Bheki Cele have also used inflammatory language. Soon after taking office, Mthethwa called on police to ‘teach those people a lesson—to fight fire with fire’. Cele gained notoriety when he entered office and suggested that the laws governing police use of force be changed and made more lax. In addition to introducing ‘shoot to kill’ rhetoric, Mthethwa and Cele also reinstituted the military ranking system, which had been a marker of the apartheid-era police. This behaviour suggests that the old mentality and approach to policing remain ingrained.

While the SAPS should be central in crime and violence prevention efforts, its ability to serve this function has been constrained by a range of serious internal problems. Apartheid-era policing practices have been suppressed but not fully transformed, and significant work remains to ensure that the SAPS serves to reduce, rather than exacerbate, levels of violence. Whereas other sectors such as health and education are actively monitored through civil society activism, the policing sector remains in need of a strong, vocal and fiercely independent civil society watchdog body. Without sustained external pressure from civil society it is likely that policing in South Africa will continue to erode rather than bolster public goods like reconciliation.

Natalie Jaynes is a researcher at Small Arms Survey.

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