Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
20 March 2008

Human Rights day, police brutality and transformation

Maybe I am turning into an old fogy, but I could not really get very upset about the alleged brutality of the police when they raided several bars in Stellenbosch at the beginning of this month. It is true that the video’s on YouTube clearly shows that the police acted in an extremely high handed and even violent manner, but compared to other incidents of police brutality this was mild stuff.

The only reason why this even even made it into the paper was because those affected were mostly rich white kids with cellphone cameras, the same people who buy and read the mainstream newspapers who reported on the incidents.

For example, it is shocking to read the following summary of police brutality in the 2007 report from Amnesty International:

Torture and misuse of lethal force against crime suspects continued to be reported, in a context of high levels of violent crime and police fatalities. Corroborated cases involved members of the South African Police Service (SAPS), particularly from the Serious and Violent Crime Units (SVCU), torturing suspects with suffocation and electric shock devices, as well as kicking and beating suspects. Several detainees died as a result. Interrogation sessions sometimes took place in informal locations. Torture equipment was found on the premises of the Vanderbylpark SVCU after a court-ordered search.

After reading this report, and recalling earlier brutal action by the police against Landless People’s Movement activists during the last election and the raid on refugees at the Central Methodist Church in Johannesburg, the alleged assault by police of some students in Stelenbosch, although abhorrent, seems perhaps less important.

However, as we approach human rights day it might be appropriate to ask why some members of our police still behave in this way despite the fact that the Bill of Rights guarantees for everyone the right to human dignity, the right to freedom and security of the person (which includes the right not to be tortured) and the right to bodily and psychological integrity.

In the apartheid years the police had, what one British report memorably called, a confessional style of policing: they caught people who they thought were “troublemakers”, tortured them until they confessed, and then secured convictions on the basis of such confessions.

Some would say that given the extremely high levels of crime in South Africa, there is nothing wrong with this approach. After all, criminals are brutal and kill many police officers every year, so what is wrong with the police “retaliating” by roughing up or even torturing a few criminals.

Ironically, some of the same people who argue like this would remind us, sometimes vociferously, that Mr Jacob Zuma is innocent until proven guilty. But if he is innocent until proven guilty, so is every single person ever caught up in a police raid or ever tortured by the police. When we allow police – through our active support or through our silence – to abuse the rights of some citizens we are inviting them to abuse the rights of every single one of us.

One of the greatest problems, as I see it, is the way in which the transformation of the South African Police Service (SAPS) has been handled. Given the nature of our transition to democracy the state was never overthrown and the same state institutions were merely taken over by the new government. Admirably the ANC government took some brave steps during the transition in an attempt to transform the SAPS and to instill a human rights culture in the Police.

But in the tussle between the old apartheid police culture and the to-be-established human rights culture, the old culture won hands down. After all, it is far easier and emotionally more satisfying for the understaffed and demoralised police to throw their weight around and to “get bacK’ at people they think are criminals, than it would be to actually do the hard police work required of building sound cases that would stand up in court.

And thus, as the new leadership found out, it was far easier to replace the white leadership of the SAPS with a black leadership than actually to change the police culture. And once the faces changed, talk of the real transformation of the police subsided and police brutality increased once again – although the SAPS is, of course, not nearly as bad as the deathly apartheid police.

At the heart of this story, I think, is a lesson (I always wanted to be a preacher so here goes!) of how difficult it is to effect the real transformation that the Constitution requires of our society. Changing the colour of the faces in charge of an institution does not automatically change all the bad habits of that organisation and may even give new legitimacy to those habits and to the institution.

Even where real efforts are made to change the very character of the state to bring it into conformity with the “letter and spirit” of the Constitution, these efforts are often only partially successful and those spearheading them become demoralised and give up. Then suddenly transformation becomes nothing more than changing white faces with black faces while the authoritarian culture of the institution essentially remain in tact.

On human rights day maybe we should think again about the kind of deep transformation of our society and its institutions that the Constitutional Court sometimes says our Constitution demands of us. We should ask why this kind of transformation seems to have stalled on many levels and in many institutions. We should, perhaps, revisit our use of the transformation mantra and should not bandy it about merely (although that is important) to mean the changing of the racial composition of the people staffing the various institutions in need of transformation.

I am not too optimistic that “real” transformation will happen in the SAPS soon, because the authoritarian and brutal police culture is too deeply rooted, the clamour from the public to do something about crime too loud, and the dangers faced by police officers every day too severe to make this possible. Which means we face more and worse police brutality in the future that would make complaints by Jacob Zuma about the abuse of his rights by the Scorpions look laughable and even absurd.

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