Constitutional Hill

Innocent until guilty

Clutching at straws?

Jan 4th, 2011
by Pierre De Vos.
75 comments

It might well be that Shrien Dewani is completely innocent and that he had absolutely nothing to do with the killing of his wife. However, for an innocent man he is behaving rather strangely. Instead of rushing back to South Africa to clear his name, he seems ever more desperate to avoid facing his day in court in South Africa.  It reminds one rather of a famous South African politician who made sure he never got his day in court to avoid having to explain why he took millions of Rand from a crook and then did favours for that crook.

Now the Sunday Telegraph reports that Dewani fears that he will not receive a fair trial in South Africa because he will be tried by Judge President John Hlophe. For anyone with even a passing knowledge of the South African legal system, this argument must seem laughable and even a bit desperate.

As far as I know, a trial judge has not yet been allocated for the Dewani case. It is therefore far from certain that Judge President John Hlophe will hear the case. Advancing arguments at this early stage about the impossibility of receiving a fair trial based on nothing more than the possibility that the accused will be tried by a certain judge seems, well, a bit desperate and unhinged.

But even if Hlophe decides to hear the Dewani case, this does not mean that Dewani will not receive a fair trial. Now, as we all know Judge President Hlophe is a judge who has been mired in controversy, and any accused appearing before him has a right to ask the judge to recuse himself on the basis that he would not receive a fair trial. The problem for Dewani would be that such an application is almost certain to be rejected — and rightly so.

Last month the Constitutional Court in the case of Benert v Absa Bank once again dealt with the issue of when a judge should recuse him or herself. In a judgment written by Chief Justice Sandile Ngcobo the Constitutional Court once again succinctly set out the legal position in South Africa on this issue:

It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.This case concerns the apprehension of bias. The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case. Or it may arise from the conduct or utterances by a judicial officer prior to or during proceedings. In all these situations, the judicial officer must ordinarily recuse himself or herself. The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial.9 And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial. The test for recusal which this Court has adopted is whether there is a reasonable apprehension of bias, in the mind of a reasonable litigant in possession of all the relevant facts, that a judicial officer might not bring an impartial and unprejudiced mind to bear on the resolution of the dispute before the court.

This means that the mere fact that a judge has previously acted in a controversial manner — as Hlophe has done — is not in itself ever going to be relevant. The question is whether a reasonable person with all the facts at hand, a person not animated by the racial prejudices of your average British national (or journalist), will have a real apprehension that the judge will be biased because of what the judge had done or said either before or during the trial.

Now, personally I might not want to be tried before Hlophe JP because I have been rather critical of him and I might well have a reasonable apprehension — rightly or wrongly — that Hlophe would find it difficult to be completely impartial and unprejudiced in hearing my case. But Dewani does not have any similar history with Hlophe. Neither is there any direct link between the controversies in which Hlophe had been  involved in the past and the Dewani case.

No reasonable person with all the facts at hand would therefore be able to convince any court in South Africa – and indeed a court in any other reasonably functioning democracy — that there are any grounds for a reasonable apprehension of bias by Hlophe in the Dewani case. Hlophe has not made any utterances about the case and neither can any of his previous actions or utterances be linked in any way with the facts or the circumstances of the Dewani case.

Dewani is, of course, free to rush back to South Africa to stand trial and if he were to be tried by Hlophe he would have a right at any time to ask for the recusal of the judge if anything happens during his trial that gives rise to a reasonable apprehension of bias on the part of Judge President Hlophe. Dewani would similarly be entitled to ask for the recusal of any other judge allocated by Hlophe to hear the case — but only if there are real reasons for Dewani to fear that he would not receive a fair trial.

In effect, these arguments presented by Dewani and his spin doctors are less about legal issues than about an attempt to win the media war. I suspect Dewani and his spin doctor Max Clifford has decided to try and create sympathy for Dewani by playing into fears and prejudices of the UK public about whether an Englishman could ever get a fair trial in “deepest and darkest Africa”. IF I was a member of the UK public I would be rather sceptical about this transparent move to tap into the racial prejudices of the  public or the erstwhile colonial master and would ask: if Dewani is innocent — as he claims — why is he not rushing to South Africa to clear his name?

There is no right to be presumed innocent

Nov 18th, 2010
by Pierre De Vos.
31 comments

In South Africa there seems to be one set of rules for politicians and another set of rules for the rest of us. How else to explain the statement of Public Services and Administration Minister, Richard Baloyi, that there is a growing chance the government will change the law to stop the practice of suspending officials on full pay for long periods when they are charged with misconduct or corruption?

You need to look at the provision for the suspension with pay as it is now. You might want to agree that before you suspend a person a preliminary kind of investigation is carried out. We need to assess the prima facie case. So you look at the merit of that … when does it merit suspension, what is the seriousness of this case.

Yet, when a politician is charged with corruption — after an investigation and after the NPA had concluded that there was a prima facie case against the politician that needed to be answered — nothing happens to that politician and we are told that we have a duty to assume that the politician is as clean and honest as Archbishop Desmond Tutu.

Take the case of John Block, ANC Northern Cape chairman and finance MEC. After his arrest, ANC secretary-general Gwede Mantashe said the party will not ask Mr Block to step down from his party position for the duration of his criminal trial. He further said it was the prerogative of Northern Cape Premier Hazel Jenkins to act in regard to Mr Block’s position in that province’s cabinet. Ms Jenkins has announced that she is fully behind Mr Block and will not suspend or fire him.

The reason given for this cowardly lack of action by both the ANC and the Premier against Mr Block was that he had a right to be presumed innocent until proven guilty and that it would be unfair to suspend or fire him. Yet every day officials are suspended (at the moment still on full pay) even though they had not been found guilty of committing any crime or breaching any rules.

In any case, it is utter nonsense to claim that a person has a general right to be presumed innocent until found guilty by a court of law. Section 35(3) of the Bill of Rights states that:

Every accused person has a right to a fair trial, which includes the right… (h) to be presumed innocent, to remain silent, and not to testify during the proceedings.

This means that every individual has a right to be presumed innocent by the court. This is part of an accused persons fair trial rights. A magistrate or judge who hears the case cannot assume that an accused is guilty merely because he or she is being prosecuted by the state.

This section does not bind those of us who are not going to decide on the ultimate guilt or innocence of an accused. It might, of course, be irresponsible for any of us to conclude that someone is a crook merely because he or she has been charged by the state. Although we might point out that there is a prima facie case against the accused (otherwise he would never have been charged), it might be morally wrong to assume the person is guilty, especially if we are not familiar with the evidence on which the decision to charge the accused was based.

It might also be risky to state that someone is a crook before he or she has been convicted because if that person turns out to be innocent or if the person is acquitted on a technicality, that person might be able to sue us for defamation if we had called him or her a crook.

But where we are familiar with the evidence (say, because the evidence was ventilated in another court case), and where we are brave enough to take the risk of being slapped with a defamation suit, we have every right to call someone a crook – even when that person has not yet been convicted of a crime.

The fact remains, where a person has been charged, the NPA is saying that there is a prima facie case against that person and that there is a strong suspicion that the person is a crook. Only the presiding judge will however be able to conclude whether the evidence show beyond reasonable doubt that the person is indeed a crook.

But as the Constitutional Court pointed out in the Sandersen case, where a person has been charged with commiting a criminal offense, that person has inevitably been tainted and a dark cloud hangs over that individual’s head. This is one of the unfortunate effects of being charged with a criminal offense. Even if one is eventually acquitted, a degree of suffering would have ensued.  In any event, a strong suspicion will linger that the person is a criminal and that is why charging a person can be such a grave thing to do.

Only a judge can remove that dark cloud by acquitting the accused. This is of course the problem with our President who took money from a convicted crook and did favours for that crook and was eventually charged with corruption. As he was never acquitted, we will never know whether President Zuma had the intention to be corrupt when he took money form that crook and did favours for that crook. We will always wonder whether our President was a crook himself or not. We will have every right to wonder about it and our President does not have the right not to have us wonder about his possible crookedness or not.

Section 35(3)(h) of the Bill of Rights cannot miraculously wipe out such serious suspicions against any politician (or anyone else, for that matter), whether it is John Block, Jacob Zuma or Masizole Mnqasela, a senior Member of Parliament for the Democratic Alliance (DA) charged with rape. In the interest of open and accountable government, such politicians have a duty to step aside until such time as they are either convicted or acquitted by a court of law who — unlike us ordinary folks — have a duty to presume that these politicians are innocent until the state has convinced the court that they are not.

This is the principle that applies to public officials who are suspended from their jobs. Why does the same principle not apply to politicians? Well, the answer is probably that politicians are the one’s who make and apply the rules and they therefore make and apply the rules so as to give themselves a special status and to claim for themselves a special “right” which does not exist in our Constitution.

Mr Block is the MEC for Finance in the Northern Cape, for goodness sake. He is in charge of the Province finances. The NPA claims that it has sufficient evidence to convict him of serious crimes of dishonesty. How can us ordinary people trust this man to deal with the Finances of the Northern Cape in an honest manner when such a dark cloud hangs over his head? The answer is we can’t and we have no duty to suspend all judgment until such time as a court either confirms the suspicion which have been created that Mr Block is a crook or clears his name.

He should step aside forthwith — along with all the other politicians who have been charged with a crime but have not yet been convicted or acquitted.

Bad day for journalists and politicians

Jul 1st, 2010
by Pierre De Vos.
31 comments

I was one of the many people who welcomed the “election” of Ebrahim Rasool as Premier of the Western Cape back in 2004. After suffering under the ineffectual leadership of that Charles Bronson lookalike Gerald Morkel; the unspeakable windbag Peter Marais; and the arch opportunist and apartheid era Military Intelligence operative Marthinus van Schalkwyk (now ironically a Minister in the ANC cabinet !), the Western Cape finally seemed to have an honest and caring Premier who campaigned to make the Province “a home for all”.

Boy, was I duped or what?

Yesterday it was reported that Ashley Smith, a reporter for the Cape Argus until April 2006, “came clean” in an affidavit submitted to the National Prosecuting Authority, alleging that he had been bribed by Rasool. Smith claimed under oath that he and then political editor of the Cape Argus Joseph Aranes used their positions as full-time staff members on the Cape Argus to assist Rasool’s campaign against political rivals, and that they received money from a public relations company that obtained provincial government contracts handed out by Rasool’s office without using the tender route.

Rasool, who is supposed to take up the position as South Africa’s Ambassador in Washington, issued a tepid denial of these allegations, saying that the allegations are old hat and had been dealt with before. But Smiths allegations are backed up by Rasools enemies in the ANC who have made similar allegations against Rasool in the past.

If the allegations are true, Smith, Aranes and Rasool could all face conviction for corruption in terms of the excellent Prevention and Combatting of Corrupt Activities Act 12 of 2004. If convicted, they could face heavy sentences, as the High Court is empowered by the Act to impose a sentence of up to life imprisonment for contraventions of the relevant sections of the Act.

Section 3 of the Act – which creates the general crime of corruption – is rather broad and has two components.

First, it targets any person who gives or accepts “directly or indirectly” a “gratification”, which is defined as including any money, gift, contract, benefit, position, employment or service. If it can be proven that Rasool had arranged for the PR company to receive contracts from the Premiers office (as alleged by Smith), this would satisfy the first part of the test for corruption as not only direct payments or benefits are targeted. Where a front company is used to channel the payment of money or the rewarding of contracts (as is alleged in this case), that will still fall squarely within the definition of corruption set out in section 3 of the Act.

Second, the “gratification” had to be given or received with the intention to achieve any number of specific goals. Where a gratification is given or received with the understanding that the person who received it would act in an illegal, dishonest, unauthorised, incomplete, or biased way, or that would amount to an abuse of a position of authority or that would amount to any other unauthorised or improper inducement to do or not to do anything, the parties will be guilty of corruption.

If the allegations by Smith are proven to be true, this second requirement would also clearly be met as the journalists would have acted in a dishonest, unauthorized, biased and improper manner by writing bad things about Rasools enemies within the ANC and good things about Rasool while they were supposed to report fairly and honestly about politics in the Western Cape.

Section 24 of the Act further makes it easier for the state to prove its case. As long as it can prove that a “gratification” was given or received, it could be assumed that this was given or received with the intention to corrupt – unless the accused can produce evidence that raises reasonable doubt about this link.

A prosecutor would therefore have to show that the PR company did indeed receive contracts from Rasool’s office and that the journalists did indeed write stories favorable to Rasool and detrimental to his enemies in the ANC. Once this has been done, Rasool and the journalists would have to provide evidence that cast reasonable doubt on the link between these two events.

Two issues arise. First, given the fact that these explosive allegations have now been made under oath, will the police and the prosecuting authority investigate the matter properly and will they bring charges against Rasool and the journalists – despite the fact that Rasool is a well-connected member of the ANC and Ambassador designate to Washington? Or will Menzi Simelane strike again and make sure that these rather troubling allegations go away?

Second, can Rasool plausibly take up his position as Ambassador to Washington with these very serious charges of corruption hanging over his head? Rasool has, of course, not been convicted of any crime. Perhaps these allegations are all part of a dark plot by his enemies. But it seems to me untenable that he could properly represent South Africa in the USA while this dark cloud hangs over his head.

Surely the best way to deal with these allegations would be to investigate them properly and – if they seem plausible – to prosecute Rasool and the journalists who will then either be convicted or have their names cleared by the court. If Rasool is innocent, he might also want to explore the possibility of suing the Cape Argus and Smith for defamation in order to clear his name.

In the absence of such steps, Rasool would clearly not be fit to become the South African Ambassador in Washington. If President Zuma is serious about corruption he will have to withdraw the appointment until the matter has been cleared up. Any bets on whether this will happen? I guess it will depend on internal ANC politics, rather than on whether the President is committed to stamping out corruption or not.

On torture and human dignity

May 10th, 2010
by Pierre De Vos.
76 comments

As many “enemy combatants” (a non-legal term if ever there was one) imprisoned by USA forces will tell you (if they were ever released from indefinite detention without trial), torture is probably the worst infringement of one’s right to bodily integrity as well as one’s right to human dignity.

The mental image of naked man shivering on the bare cement floor of a water-drenched cell with a black bag over his head being water-boarded while CIA or Military Intelligence operatives try to force him to make confessions about things he had never done and knew nothing about, serves as a reminder of why the protection of human rights is so vital for the establishment of a humane world. 

In fact the ban on torture is one of the few international human rights norms that has acquired the status of a rule of customary international law that can be enforced against any country – regardless of whether that country has signed and ratified any of the human rights treaties.

In the light of the above, I was rather shocked to read that six detectives from the elite crime-fighting unit – the Hawks – have been arrested for torture. You will all recall that the Hawks have replaced the Scorpions, which was disbanded after some ANC members at Polokwane expressed concern about the ability of the Scorpions to investigate and arrest ANC members for corruption.

Weekend Argus report says the men – who have been dubbed ‘the untouchables’ – have appeared in the Klerksdorp Magistrate’s Court, charged with serious assault. Captain Tsietsi Mano, Captain Ishmael Taung, Warrant-Officer Petros Tshiponyane, Sergeant Samuel Kutumela, Constable Godfrey Pebane and Constable Lucas Mosala were released on R500 bail each. They are alleged to have used apartheid-style torture methods on a group of bank robbery suspects. All are members of the Klerksdorp Organised Crime Unit.

Now it might of course be that these Hawks are innocent, that they have never tortured anyone and that they are merely the victims of a conspiracy by the Dark Lord Sauron or some other dark forces in the media or counter-revolutionary judges who get together late at night dressed up in chicken suits to conspire against the poor innocent ANC members driving around in million Rand cars, wearing R250 000 Breitling watches and living in R15 million mansions. I am sure the truth will emerge at their trial – if a trial is ever held.

What concerns me is that so far no politician (from any political party) has expressed concerns about the fact that members of our elite crime fighting unit have been charged with torturing suspects. As Jacob Zuma and his supporters kept on reminding us during his long battle to ensure that he never had to answer corruption charges in court and never had to be Jackie Selebi’d under cross-examination, suspects are innocent until proven guilty by a court of law.

But although these suspects must be considered innocent until proven guilty, members of the Hawks are alleged to have tortured them. God only knows what physical and mental pain might have been inflicted on these suspects. One can only look on in horror at the deathly and hypocritical silence on the part of ANC leaders about this turn of events. Imagine the Scorpions had been charged with torturing Jacob Zuma after his arrest – just imagine the outcry! 

Now, at the time when the Scorpions were killed off, many supporters of President Jacob Zuma – some of them senior leaders in the ANC – argued that the Scorpions had gotten out of hand. They pointed to the “Hollywood-style” raids on the premises of Zuma and his lawyer and the alleged leaking of information to the media which, so they claimed, infringed on the human dignity of Zuma and other high profile ANC leaders.

This concern for the human dignity of Zuma and other ANC leaders might have been touching if it was not so hypocritical and so bereft of principle. It was based on the anti-Rule of Law notion that “some animals are more equal than others” and that ANC leaders have a more urgent claim on the right to dignity than anyone else. (Some would say it illustrated the widely held belief in the ANC that its leaders are mostly above the law.)

The silence on the part of ANC politicians about the allegations of torture against the Hawks is also telling. It suggests that if a unit targets ANC members and use “Hollywood-style tactics” (which, the last time I checked, did not constitute a human rights abuse – unlike pulling out somebodies finger nails or burning their genitals with a blow torch) that unit will be disbanded. But if members of a unit are charged with committing serious acts of torture on individuals who happen ”only” to be common garden variety criminal suspects and not ANC Kebbilists and tenderpreneurs, then that unit will be left alone.

So as long as the Hawks stay far away from cases of corruption involving any ANC politician, its members will be safe. There will be no grumbling of “Hollywood-style raids” and no one will say a word about any Hawks being convicted of torture and how terrible that is for the protection of the human dignity of anybody. 

I might be wrong, of course. Maybe as I write ANC leaders are preparing a policy document on the disbanding of the Hawks to be tabled at the General Council later this year. Maybe there are some principled people who think that torturing someone is a bit more serious than indulging in “Hollywood-style raids” and “humiliating” politicians by leaking information about their nefarious activities to the press.

Then again, maybe not.

After all, criminal suspects who are destined for high office in the ANC are “innocent until proven guilty” (even when someone else had been convicted of bribing them and we all know they took money from that crook and then did favours for that crook in return). Those ”special” suspects also have a human dignity more exulted than even that of Princess Lindiwe Sisulu. But if you are not a blue blood, politically connected, Julius Malema-loving, tenderpreneur, then you can be tortured because you are just a criminal, scum of the earth, and someone whom the police is invited to shoot and kill. You are a bastard (or is that “a bloody agent”?) and you need to pay for your alleged crimes even long before you are ever convicted by a court of law.

The double standard in all of this is of course breathtaking. (It is even more hypocritical than Helen Zille claiming that allegations of sexual harrasment against Lennit Max was a private affair while Jacob Zuma’s sex life was a matter for public consumption). It emanates from people who have lost any sense of morality and who believe that power is its own morality, that those in power have a divine right to rule and that “ordinary” criminal suspects without connections to the rulers have no rights at all.

Be afraid, be very afraid

Mar 3rd, 2010
by Pierre De Vos.
62 comments

So, imagine you are driving home late at night in your BMW. You hear a screeching of tyres and see two overweight men pointing their guns at your head. You panic and – as if you are now sitting behind the wheel of one of those malfunctioning Toyota’s – your car accelerates. Bam! Bam! In two minutes you are as dead as Brett Kebble – but not from “assisted suicide”.

The police who shot and killed you will never be prosecuted – at least not if the new Draft Bill aimed at amending section 49(2) of the Criminal Procedure Act is passed by Parliament. The police officers in their unmarked car will say that your BMW (or one that looks just like yours) was used as getaway car in an armed robbery and they were trying to arrest you – and that will be the end of the matter. Your wife, husband,  or children will have to learn to live without you – albeit in fear of also being shot and killed by the police at a later stage.

So much for your right to life and bodily integrity and the right (so often invoked by President Jacob Zuma) to be presumed innocent until proven guilty. Those rights are obviously reserved for politicians driving in blue light convoys, with their thuggish bodyguards carrying black bags to hood enemies of the state. According to the Minister of Police, ordinary citizens do not enjoy those rights because, who knows, they might just be criminals.

The Draft Bill contains two important proposed changes which will make it far easier for the police to shoot and kill people without having to think too hard about whether this is reasonable or necessary.

First, the prosed amendments to section 49(2)(a) would allow the police to kill a suspect in order to protect themselves or the public from serious bodily harm – even when it might not have been immediately necessary to do so. In other words, as long it would have been necessary at some point before or during the arrest to kill the suspect to protect anyone from serious bodily harm, the killing would be lawful.

The police would also be able to kill a suspect not only when it is necessary to protect someone’s life or to protect someone from grievous bodily harm, but now also when it would have been necessary to protect someone from “serious bodily harm”. However, it is not clear what the difference between “grievous bodily harm” and “serious bodily harm” might be (except perhaps that the former is more difficult to spell and pronounce).

Second, the amendment to section 49(2)(b) would also allow the police to kill anyone who is reasonably suspected of having committed a crime involving the possibility of seriously harming anyone if they believe there was no other way of arresting the suspect “at that time or later”. So, if a police officer has reason to believe you have been involved in a serious assault on anyone, or you have been involved in an armed robbery and there are no other reasonable means to arrest you on the spot (as opposed to going to your house later and arresting you there), they can kill you right there, finish and klaar.

These amendments attempt to simplify the circumstances under which the police can shoot and kill suspects. They would also make it far easier for the police lawfully to kill suspects during an arrest. It tries to circumvent the problem of a lack of police training, by minimizing the requirement for  split-second decision-making by police officers making the arrest. Officers will not have to decide whether killing the suspect is immediately necessary and will also not have to decide whether there is a substantial risk that the suspect would cause imminent serious harm to anyone.

As long as the suspect was reasonably suspected of having committed a crime involving the threatening of serious bodily harm and as long as it was necessary to kill the suspect in order to effect the arrest of the suspect on the spots (say, because the suspect decides not to stop when ordered to do so), the police can shoot first and ask questions later.

The amendments are not only illogical but clearly also unconstitutional. Maybe I am missing something, but it does not seem logical for the law to state that the police can kill a suspect “if there are no other reasonable means of carrying out the arrest”. If they have killed the suspect, they would not be able to arrest him or her as one cannot arrest a dead person. The proposed amendments to section 49(2)(b) must therefore be read to mean that the police need not worry about whether it would be possible to arrest certain suspect at a later date. They would be able to kill the suspect on the spot if it would not be possible to arrest him or her right there and then.

Scary stuff.

The amendments are most probably also unconstitutional. As I have explained before, in the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The proposed amendments would not require the police officer to take into account “all the circumstances” before deciding whether it would be reasonable and necessary to shoot and even kill a suspect. However, this is exactly what the Constitution requires. The amendments would tilt the scales in favor of extra-judicial police killings (a bit like the Vlakplaas hit squads but this time sanctioned by law) and will not pass constitutional muster.

The drafters of the Bill obviously failed to distinguish between cases where it would be permissible to shoot and injure a suspect in order to effect an arrest and cases where it would be permissible to shoot and kill that suspect. The Constitutional Court has made it clear that the latter would only be lawful in limited circumstances and that only the least degree of force to carry out the arrest  would be allowed.

By repeating the wording of point (h) above out of context, the drafters probably thought that the amendments would pass constitutional muster. But they failed to take into account the rest of Kriegler’s summary and have not realized that it does not give the police a blank cheque to shoot and kill suspects merely because they are reasonably suspected of committing a crime that threatened serious bodily injury.

The Constitution requires police officers to decide in each case what degree of force is reasonable and necessary to effect an arrest. The proposed amendments wants to do away with the necessity for officers to make this judgment call. This makes the amendments unconstitutional.

If we start killing our own people we all lose

Nov 13th, 2009
by Pierre De Vos.
21 comments

Politicians seldom admit to the existence of, or even embrace, complexity. Admitting that problems are complex (whether one is in government or sitting on the opposition benches) confuses people and can create a perception of indecision or even weakness (just ask Public Enterprises Minister, Barbara Hogan), so politicians often opt for easy sound bites (Julius, are you there?) and quick fix solutions.

They believe the public is stupid and will think the politicians are doing something about a problem when they announce a new initiative or an amendment to the law – even when the quick fix is going to change nothing or make things worse.

But surely voters are not stupid. (Well, some are suspiciously daft – More than one percent of voters did vote for the African Christian Democratic Party in April, but maybe they were so blinded by their hatred for homosexuals that they could not think straight.) That is why quick fix solutions will often backfire and at some point voters will turn against the politicians who have sold them a dud policy or programme or have promised them the world and delivered nothing.

Sadly, Fikile Mbalula, the Deputy Minister of Police, has not learnt this lesson. Yesterday he took time out from fighting with his Minister to tell us a lot of shocking nonsense, trying to convince us, as my grandmother would have said dat perdedrolle eintlik vye is (that horse turds are actually ripe figs).  

Firstly, defending plans to give officers greater licence to use lethal force, he said that it was unavoidable that innocent civilians will get shot in the crossfire between police and criminals. “In the course of any duty the innocent will be victimised,” Mbalula told reporters in Parliament. “In this particular situation where you are caught in combat with criminals, innocent people are going to die not deliberately but in the exchange of fire. They are going to be caught on the wrong side, not deliberately but unavoidably.”

Well, tough luck then. Those of us who are not important enough to be protected by VIP cops (at a staggering cost of R300 000 a month to us taxpayers), will just have to take our chances then. Instead of dodging criminals, we will now have to dodge both criminals and trigger happy police officers. We will also have to fork out millions to pay for all the civil claims from the family members of all the innocent civilians unlawfully executed by the police.

Second, Mbalula also said the promised amendments to section 49 of the Criminal Procedure Act would be tabled in Parliament next year, but would not amount to an overhaul of the act. In essence, lawmakers would change the act “in terms of emphasis on the word ‘necessary’” to remove ambiguity in the law, the deputy minister said. He gave no further details.

Section 49 states that if someone suspected to have committed a serious or violent crime resists arrest, the police may “use such force as may in the circumstances be reasonably necessary to overcome the resistance or prevent the person concerned from fleeing”. 

There does not seem to be any ambiguity there, but some have suggested that the Minister plans to change the law in such a way that individual police officers will not easily be held accountable when they shoot and kill civilians. Talk is that the amendment will aim to limit the necessity of individual police officers to use their discretion when they start shooting. There will be a rule that can be mechanically applied and as long as the police officer sticks to the rule everything will be fine – even if a few hundred civilians are murdered in the process.

The problem is that the Ministry cannot easily broaden the scope of section 49(2) in this manner as the exercise of a discretion is inherently required by our Constitution. In the Walters case, Kriegler J set out in admirably clear language what the Bill of Rights require from any such section, and I quote:

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

The problem for the police (and for the Minister) seems to be that this approach requires police officers to do that rather difficult think, namely to think and to use judgement in stressful situations where the wrong decision could have fatal consequences. The ethos of a human rights culture – as the Kriegler judgment makes clear – will always require police officers to exercise a discretion, as it requires them to weigh various factors and make  a decision (in a split second) about whether it is allowed to shoot and kill a person believed to be a suspect.

No matter how the Ministry tweaks the word “necessary”, it will not be able to remove this burden from police officers without changing the Constitution. The suggestions by the Ministry that it would be able to change the wording of section 49(2) to “clarify” section 49(2) and to provide clear rules not requiring the exercise of a discretion, is just plane daft.

The way to help the Police is NOT to change section 49(2) – which will give police officers a false sense of security and will lead to more Police Officers being charged with murder or culpable homicide – but rather to train police officers. A police captain was quoted in the paper this week as saying that you cannot teach police officers how to exercise this discretion and that it is all about having the right instincts. Bollocks.

In the same way that one can train a rugby team to improve its attacking and defensive abilities, one can train police officers to help them make better judgements in cases where they find themselves in stressful and potentially dangerous situations. This kind of training should include both a theoretical and a practical component. Police officers must actually be trained to understand what the law requires (not very difficult, but obviously something that bamboozle many in the police force as well as in the Ministry). Then they must be trained to sharpen their skills to apply the law in practical situations.

This kind of training, of course, requires, human and financial resources and may take time. It is a complex issue.  So, instead of doing something that will be difficult but will really make a difference, the Ministry wants to change the law. In the end this will not help us or the police. We will all become more frightened of the police while police officers themselves will wrongly think they can now act like cowboys – until they find themselves in the dock for murder.

Shoot to kill? Maybe some good will come of it

Nov 10th, 2009
by Pierre De Vos.
84 comments

Yesterday a policeman allegedly shot and killed a three year old child sitting in the back of a car. Atlegang Phalane, 3, was hit by a bullet while seated in the backseat of a white Hyundai with his uncle, Bongani Mchunu, around 6pm on Saturday. The car was parked outside a relative’s house in Klipfontein View Extension 2, north-east of Johannesburg. Atlegang died instantly.

We all knew this kind of tragedy would happen. In fact, it has been happening for generations in our violent society. But for a while after the advent of our democracy and the renaming of the Police Force to the Police Service, most of us thought that it would come to an end. After all, members of a Police Service operating under the discipline of the Constitution are supposed to catch the criminals and not to shoot and kill innocent civilians. Everybody – so our Constitution promises us – has a right to life, bodily integrity and to be presumed innocent until proven guilty before a court of law.

Maybe we should thank the politicians who, with their careless talk, have alerted the media to the fact that the Police often shoot innocent civilians. They have been killing our mothers and fathers, our sons and daughters and brothers and sisters, our boyfriends and girlfriends, our community leaders and social movement activists in the name of upholding “law and order”.

Now, many of us are squeamish to confront the fact of widespread extra-judicial killing by our stressed and trigger happy police officers because we fear that pointing this out might embarrass the ANC government or give sustenance to the real criminals. As long as one of our own is not killed, we turn a blind eye to extra-judicial killings by the Police. This is either because we want to believe the Police behaves much better now than during the apartheid era (and to some extent they do) or because we want to cheer on the killings by the Police for teaching the “criminals a lesson” (if we fear “the criminals” and want to protect our lives and the wealth we amassed during apartheid).

But suddenly this complicit silence about the abuses of the Police have been shattered by the politicians. No wonder the chattering classes are so cross with the ANC politicians for blabbering on about the need for the Police to “shoot and kill the bastards”.  They have disturbed our hypocritical and complacent silence on this sensitive topic.

It all started last April when then Deputy Minister of Safety and Security, Susan Shabangu, told cops: “You must kill the bastards if they threaten you or the community. You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect.” Ever since, politicians have spoken about the need for the police to shoot “criminals” (by which they mean civilians suspected of committing crime and hence – like President Zuma – entitled to be presumed innocent until found guilty by a court of law) and members of the media have been reporting on horrific incidents where innocents civilians have been killed by the Police.

Of course, some politicians have been particularly brazen and stupid. Instead of allowing us to continue pretending the Police only shoot criminals and not innocent victims, the politicians have spoken about the need to amend section 49 of the Criminal Procedure Act to beef up the powers of the Police to defend themselves against armed criminals. To be fair, this talk of a need to amend section 49 is such nonsense that one wonders whether the politicians and the police commissioner who indulge in it have been smoking something they should not have. (Or maybe they indulge in one cup of tea too many before they speak on these matters?)

First, in terms of the common law, anyone (including cops and ordinary South Africans) acts lawfully if he or she shoots and kills somebody in self-defense. This means that if one’s life is actually threatened by someone else, one can shoot and kill the person endangering one’s life in order to save your own life. If one does so one would not have acted unlawfully and would thus not be guilty of any crime.

Second, section 49(2) of the Criminal Procedure Act provides the police with wide powers to shoot and even kill criminal suspects. The section reads as follows:

  • If any cop attempts to arrest a suspect and the suspect resists the attempt, or flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use the reasonable force necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing.
  • A cop is also justified to shoot and kill a suspect when he or she believes on reasonable grounds (a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.

This means that if a cop arrests a suspect he or she can use appropriate force (short of killing the suspect) to effect the arrest if the suspect resists arrests or flees. It also means that he or she can shoot and kill a person reasonably suspected of committing violent crime if the Police officer reasonably believes that the suspect was dangerous and was likely to cause harm to someone if he or she was not arrested.

Cops cannot randomly shoot and kill civilians suspected of trivial non-violent crimes. Cops can definitely not shoot and kill anyone who was not made aware that the cop was trying to arrest him or her. When the police opens fire on the passengers in a car without having indicated to the passengers that they had to stop and that they were the subject of a potential arrest the individual member of the police is acting unlawfully and can be prosecuted.

But section 49 provides quite wide cover to Police officers to shoot anyone as long as a member of the Police can show that he or she had some suspicion that the individual had committed a crime, that the officer wanted to arrest the person and that the person fled or resisted arrest. Long before the politicians started nattering on about the need for the Police to be able to shoot and kill “criminals”, the Police killed hundreds of innocent South Africans every year. Those of us not killed by the Police have just not noticed. As long as the Police officer “only” shot poor and black men or women without friends in the media, and as long as the Police left the political VIP’s, the blond American tourists and the rich and well-connected alone, they would hardly ever be prosecuted for murder.

Maybe something good will still come out of this irresponsible talk by the politicians. Now that members of the media have discovered the shocking fact that us ordinary South Africans who are not blond and studying Actuarial Science at Stellenbosch University, are not related to Rugby players or the President, are not famous or well connected, that we are the regular targets of extra-judicial Police killings, maybe the Police will be trained to act like a Police Service and not like the members of a Police Force in a fascist state.

This will only happen if us ordinary citizens – the one’s who are the potential victims of Police violence – stand up and demand a responsible Police Service who are not trigger happy. Now, maybe if the Police accidentally kill a few Fifa representative speeding along the highway, or a few blond American tourists or USA consular officials, the media will really come to the party and something will be done. Meanwhile, be afraid, be very afraid. Our Police officers have guns (and bullets) and they are ready to shoot YOU.

Innocent until proven guilty – but only when you are a politician

Aug 3rd, 2009
by Pierre De Vos.
35 comments

The newly appointed National Commissioner of Police, Bheki Cele, seems to have a very short memory. Just a few months ago he was one of the politicians who regularly attended the various court appearances of Jacob Zuma – who was then still an accused in a criminal trial. Then Cele and everyone who knew which side their bread was buttered on and wanted a cabinet post, an ambassadorship to the French Riviera or a lucrative government tender, reminded us all that in South Africa an accused person must be presumed innocent until proven guilty in  a court of law.

But now that Zuma is safely ensconced in the Union Buildings and Cele is trying to win applause from the peanut gallery, clamouring for (an impossible) quick-fix crime solution, it seems as if Cele has conveniently forgotten about section 35 of our Constitution. Now he wants the law to be changed to allow the Police to “shoot to kill criminals”. With “criminals” Cele means accused persons (such as Zuma was until recently) who have never been tried or convicted of any crime. In other words, he wants police officers to have the power to kill innocent civilians without having to bother with the fair trial or the procedural safeguards that Zuma and his supporters demanded for the President.

One rule for politicians, another for ordinary citizens. And then people who should know better applaud this kind of police-state talk.

According to a Cape Argus report, Commissioner Cele said the police needed to match the firepower of criminals and to use “deadly force”. In the process, he wants to create a country “where people aren’t told they’re safe, but actually feel safe”. He said the call to revisit section 49 of the Criminal Procedure Act, which provides grounds for justifiable homicide, had been made because police officers spent more time working out what the law allowed than actually using it in a quick response. According to the report, Cele said the law had placed the burden on individual police officers when faced with using firearms in retaliation, and that he agreed with the Minister of Police that the onus should be on the SAPS as an organisation. “Don’t make it the problem of the individual,” he said.

It is worth noting that section 49 of the Criminal Procedure Act was amended after the Constitutional Court in the Walters case found that the previous version of this section did not comply with the requirements of the Bill of Rights, including the guarantee to the right to life (a rather important right guaranteed by our Constitution) and was not justifiable in terms of the limitations clause. The Court then set out the permissible law regarding the use of force by the Police.

(a) The purpose of arrest is to bring before court for trial persons suspected of having committed offences.

(b) Arrest is not the only means of achieving this purpose, nor always the best.

(c) Arrest may never be used to punish a suspect.

(d) Where arrest is called for, force may be used only where it is necessary in order to carry out the arrest.

(e) Where force is necessary, only the least degree of force reasonably necessary to carry out the arrest may be used.

(f) In deciding what degree of force is both reasonable and necessary, all the circumstances must be taken into account, including the threat of violence the suspect poses to the arrester or others, and the nature and circumstances of the offence the suspect is suspected of having committed; the force being proportional in all these circumstances.

(g) Shooting a suspect solely in order to carry out an arrest is permitted in very limited circumstances only.

(h) Ordinarily such shooting is not permitted unless the suspect poses a threat of violence to the arrester or others or is suspected on reasonable grounds of having committed a crime involving the infliction or threatened infliction of serious bodily harm and there are no other reasonable means of carrying out the arrest, whether at that time or later.

(i) These limitations in no way detract from the rights of an arrester attempting to carry out an arrest to kill a suspect in self-defence or in defence of any other person.

That is why the present section 49 does not preclude the use of force by Police officers and attempts to strike the right balance between protecting the rights of accused persons (who like Zuma might never be found guilty of any crime!) and the interests of society. It states:

If any arrestor attempts to arrest a suspect and the suspect resists the attempt, or flees, or resists the attempt and flees, when it is clear that an attempt to arrest him or her is being made, and the suspect cannot be arrested without the use of force, the arrestor may, in order to effect the arrest, use such force as may be reasonably necessary and proportional in the circumstances to overcome the resistance or to prevent the suspect from fleeing:

Provided that the arrestor is justified in terms of this section in using deadly force that is intended or is likely to cause death or grievous bodily harm to a suspect, only if he or she believes on reasonable grounds (a) that the force is immediately necessary for the purposes of protecting the arrestor, any person lawfully assisting the arrestor or any other person from imminent or future death or grievous bodily harm; (b) that there is a substantial risk that the suspect will cause imminent or future death or grievous bodily harm if the arrest is delayed; or (c) that the offence for which the arrest is sought is in progress and is of a forcible and serious nature and involves the use of life threatening violence or a strong likelihood that it will cause grievous bodily harm.

So the law as it stands does allow the police to use deadly force against individual criminal suspects who – like Zuma – must be presumed innocent until convicted of a crime in a court of law, but only in certain circumscribed situations. These situations are not limited to one’s where the police act in self-defense or in the defense of the lives of others. Police officers are also allowed to shoot and kill suspects if there is a substantial risk that the suspect will flee and then seriously hurt or kill someone else or where an arrest is in progress and the suspect violently resists arrest.

Cele seems to want the Police to have the right to shoot and kill any South African citizen without having to have to think about it first or to have to explain their individual decisions that led to the killing of a suspect. Many South African’s gatvol of high crime rates might applaud this sentiment, but they have to remember two things.

First, the sentiment is profoundly anti-Bill of Rights and anti-constitution. The Constitutional Court has already set the limits regarding the use of force by police and Cele’s proposal will only be viable if we change the Constitution. Maybe we can dispense with that silly provision that says every accused is innocent until proven guilty at the same time? Or what about scrapping the right to property?

Second, the sentiment is dangerous and will – if implemented – turn us into citizens who fear their police (instead of into citizens who respect the Police). Every night one would be driving home from dinner with fear in one’s heart because one would know the police could shoot and kill you right there, claiming afterward you looked like a dangerous criminal. If you happen to walk home from a shebeen after an argument with the friend of a police officer about the merits of Kaizer Chiefs strikers, you might find yourself dead on the pavement, shot by a police officer doing his buddy a favour knowing that he would never have to explain his killing of a “criminal” to anyone.

We will not address the crime problem by allowing police officers randomly to shoot innocent citizens. One will begin to address the problem by training an efficient and hard working police force who can investigate crimes without bungling even the most basic of procedures. We must rather teach the police officers how to read and write, how to use forensics to solve crimes, how to infiltrate criminal gangs and smash them by gathering evidence that will stand up in court, and leave this dangerous cowboy stuff for police states. I hear the Police in North Korea is quite effective and I am sure they also have a shoot to kill policy.

USA v SA public morality

Dec 10th, 2008
by Pierre De Vos.
101 comments

It’s not often that I would argue that South Africa could learn something from a politics in the USA (those weirdos have, after all, voted for George W Bush twice in a row) but I was struck today by the difference in the way allegations of corruption by senior politicians are being dealt with in these two countries.

On the one hand we have KwaZulu-Natal Provincial Health Minister Neliswa Nkonyeni (not to mention our own Dear Leader who can’t seem to find his machine gun anywhere), who was arrested on Wednesday, and will face charges of corruption, fraud and additional charges under the Public Finance Management Act when she re-appears in court in January. The Mail & Guardian reports:

Nkonyeni was warmly greeted by colleagues, well-wishers and supporters in court. The courtroom was jammed with journalists, court staff and onlookers. Nkonyeni’s supporters broke out in song and chanted in protest against what they perceived as the delay to the start of court proceedings.

Health department spokesperson Chris Maxon said Nkonyeni would continue her duties as provincial health minister.  “She has not been charged yet and she is presumed innocent until proven guilty. When we got to court today, the prosecution was playing another ball game, saying they are not charging anyone with anything, but on January 22 they may place charges.”

On the other hand we have news from Illinois, in the USA where Governor Rod R. Blagojevich was arrested and accused of putting a newly vacant seat in the United States Senate up for sale. There political leaders in the state on Wednesday joined growing calls for his resignation and, as the New York Times reports, sought ways to neutralize him in the meantime, by stripping him of appointment authority or even impeaching him.

Meanwhile, political leaders across the state, including the attorney general, the lieutenant governor, and legislative leaders, reacted to the charges against Mr. Blagojevich with a chorus of shock and dismay, and urged that the governor step down immediately.

Mr. Blagojevich (pronounced bluh-GOY-uh-vich), a Democrat, was arrested at his home at dawn Tuesday on charges of conspiracy and soliciting bribes. A lawyer for the governor said he denied any wrongdoing.

Two countries and two completely different responses. Both countries have a Bill of Rights which guarantees accused persons the right to be presumed innocent until proven guilty. But in the USA, the arrest of the Governor immediately led politicians – across party lines – to call for his resignation despite him not having being convicted of any crime.

In South Africa, the arrested politicians (Zuma, Nkonyeni, Yengeni) become heroes despite facing serious charges. This is the difference between a country with a developed sense of public morality and a country where public morality is completely absent from the body politic. In the USA Mr Zuma could never have become the leader of the ANC. In South Africa, Mr Zuma will become the next President of South Africa.

President elect Barack Obama (who served as a Senator for Illinois), immediately sought to put distance between himself and the governor during brief remarks on Tuesday afternoon.

“I had no contact with the governor or his office, and so we were not — I was not aware of what was happening,” Mr. Obama said. “And as I said, it’s a sad day for Illinois. Beyond that, I don’t think it’s appropriate to comment.”

In South Africa, Tony Yengeni is carried shoulder high to the gates of jail and accompanied  to those gates by senior leaders of his own party. Mark my words Mr. Blagojevich will resign in the next few days to fight his case in court. However, in South Africa, when then President Thabo Mbeki dismissed Jacob Zuma as Deputy President after Schabir Shaik was convicted of bribing Zuma, there was an outcry from various quarters. After all, these people said, Mr Zuma is innocent until proven guilty.

Nobody in the US is suggesting that because Mr Blagojevich is innocent until proven guilty it would therefore be unfair for him to have to resign. It is taken for granted that when one is charged with corruption one’s political career is effectively over. If Mr Blagojevich’s friend had been convicted of bribing him he would not have had a snowballs hope in hell of remaining the Governor.

This is a rather sad juxtaposition and says much about what a broken and damaged society we are and how our society lacks the basic public morality required for the effective functioning of democracy.

That said, the reason why US public morality is of a higher order has nothing to do with the fact that the US is a developed country, or that the majority of people living in the US are Western or white (as some racists might argue). It has everything to do with self interest. All politicians in the USA know that to survive they have to distance themselves from politicians accused of corruption. But because the ANC has such a dominant position in South Africa, ANC politicians have become arrogant and rightly or wrongly believes that they need not adhere to the kind of public morality prevalent in the US.

Over time this attitude will come back to haunt the ANC as slowly but surely more people will come to associate the ANC with corruption and immorality. Jacob Zuma admitted as much yesterday when he spoke to reporters in Namibia. But because of the needs of the ANC to pander to the short term self interest of individual politicians, nothing will be done to deal with this until it is too late.

Only time will tell how long it will take before it is indeed “too late”.

Police to be shielded from the law?

Dec 1st, 2008
by Pierre De Vos.
36 comments

The Cape Times reports this morning that the ANC wants to protect members of the South African Police Service from being dragged into court “to clear their names” when a criminal complaint is filed against them. According to the report:

[T]he party has proposed that a revamped Independent Complaints Directorate (ICD) deal initially with all criminal complaints against police.

ANC members, who discussed the issue during a meeting of the conference’s peace and stability commission yesterday, argued that police should not be subjected to the same treatment as “ordinary criminals” when faced with being charged with a crime.

This amounted to the “criminalisation” of officers simply because they were accused of an offence, one delegate said. A delegate who attended the discussion said the proposal meant, for example, that if an officer “shoots someone who poses a danger to the public, (the ICD) will … determine whether to refer the case for further investigation and prosecution”.

If this report is correct, it would be rather worrying for several reasons. First, several reports over the past few years have indicated that police members, frustrated by their lack of power and status in the community and because of a lack of training, often abuse their power and act in a high handed or even illegal manner when they are called upon to arrest suspects or fulfill their ordinary functions.

A new system that would protect police officers from the law by requiring the ICD first to investigate police misconduct and preventing the prosecuting authority from bringing criminal charges against police officers unless the ICD has first agreed to this, would send the wrong signal to police officers. It would suggest to them that they are not bound by the law in the same manner than the rest of us. Surely this is a recipe for police abuse, as police officers would begin to think that they will be protected from prosecution – no matter how unlawful their actions?

Surely we do not want the police to behave in the same manner as during the apartheid era when it was a law unto itself? Once one goes down that slippery slope, how long before we have another Vlakplaas or a BSB? It seems to me like this proposal is really playing with fire and may create a police force feared by the population and far removed from justice.

Second, the Constitution creates a single prosecuting authority and gives power to that “to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings”. It also states that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”.

The proposals discussed at the ANC Indaba will surely infringe on the duty of the prosecuting authority to institute criminal proceedings and to prosecute without fear, favour or prejudice as the prosecuting authority will now only be able to act once the ICD has given the green light for such actions against a police officer. It will therefore more than likely be unconstitutional to shield the police in this fashion from criminal prosecution.

Third, it also seems to run counter to the Rule of Law, entrenched as a founding value of our society in section 1 of the Constitution. The Rule of Law establishes the principle that all must be equal before the law and that no one must be deemed to be above the law. But the proposals would give special treatment to police officers and would elevate them above ordinary citizens and would treat them differently regarding criminal prosecutions. Once again, this therefore seems constitutionally problematic.

Crime is obviously a serious concern in South Africa and the police is currently not as effective as it could be in combating crime. Giving police more leeway to bend the rules might make us feel good about the fight against crime – unless we happen to be the poor innocent sod on the wrong end of police brutality or abuse, of course – but it will not make a real difference to the combating of crime.

What is needed is a better trained and better managed police force. We need more police out on the streets doing the beat; more police who can investigate crimes, gather the information and build winnable cases. We do not need more police officers ready to shoot to kill suspects (who must be deemed innocent until proven guilty by a court of law) or break the rules to rough up suspects or mistreat the citizens of South Africa.

The proposals as reported represents a populist response to the very difficult question of how to improve policing in South Africa. It will not work and will, eventually make us all less safe because we will begin to fear the police again as we did in the apartheid days. Those who do not learn from history are condemned to repeat it, so the saying goes. Someone should remind the ANC of this rather bleak fact.

← Earlier Posts