As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
There are extremely high levels of violent crime in South Africa which disproportionately affect poor people. Consequently, many South Africans support the idea that the police should be allowed to break the law when confronting (some) criminal suspects, and that they should not hesitate to execute (some) criminal suspects if they believe these suspects deserve to die. No wonder, then, that some South Africans have cheered on Bheki Cele, the new Minister of Police, when he said the police should ignore the human rights of (some) “criminals”. I suspect neither the Minister nor those who support him realise that this view endangers the lives of every single South African.
After the police massacred 34 striking mine workers at Marikana (according to evidence at least some miners were executed in cold blood), I was surprised at how many South Africans (of all races) justified the actions taken by the police. Some of the most common arguments provided for supporting the massacre was that “the miners” had previously murdered police officers, and that they were dangerous and would have attacked and killed police officers if the police had not killed them first.
These arguments were based on two basic assumptions, neither of them holding any water.
The first assumption was that in certain circumstances individual police officers or commanders must have a right to decide whether a criminal suspect is guilty of a crime and thus have the right to impose an appropriate penalty on that suspect, which includes the death penalty. This, the individual police officers or commanders can do without hearing or weighing up any evidence, but merely by assessing the situation based on factors such as whether an individual “looks threatening” or carries a gun.
The second assumption was that because the police had concluded (but at the time had not produced any credible evidence to back up this conclusion) that some unidentified striking miners had been involved in the murder of police officers, it was perfectly acceptable for the police to punish all striking miners collectively by shooting and killing as many of the striking miners as they deemed fit.
I was reminded of these highly problematic and, quite frankly dangerous, views when I read earlier this week that Police Minister Bheki Cele told police officers to ignore the human rights of criminals. ENCA reported that Cele said:
Human rights are for people not for animals/ogres, because if you take a gun and plan to go and shoot a police officer who is off duty … then you are not a human… I agree with human rights activists and I know about human rights, but for me, that’s where I draw the line. You now become an animal/ogre and we need to treat you like an animal/ogre if you behave like an animal/ogre. We will treat people like people if they behave like people.
This statement by the Minister does not reflect the current legal situation and is also factually false. The Minister is encouraging police officers to ignore the law (something they are not entitled to do and for which they can and should be prosecuted) when they deal with some “criminals”.
The statement is also false, as police officers almost exclusively engage with “criminal suspects” who have not been convicted of the crimes that the police think they are guilty of. The police are almost never confronted with “criminals” and from a legal perspective calling criminal suspects “criminals” and encouraging the police to treat such suspects as criminals may lead to the police taking over the job of the courts – finding such suspects guilty and punishing them – without any of the safeguards that protect innocent people from being wrongly punished.
The law does not stop any of us from looking at the available facts and concluding that somebody is probably guilty of having committed a crime. As I have written before, while a judge or magistrate hearing a case has a constitutional duty to presume that an accused person is innocent until proven guilty by the state, that duty is not imposed on the rest of us.
But this does not mean that any of us is permitted to take the law into our own hands by punishing somebody we suspect may be guilty of a crime. The law insist that an individual should first be found guilty by a court of law before that person is punished in the appropriate manner.
That is why it would be outlandish for the police to storm into former President Jacob Zuma’s house and shoot and kill him, just because they might have concluded that he is guilty of corruption. It would also be outlandish for the police to abduct Zuma from his house, and then to lock him up indefinitely in a dungeon, just because a police officer has decided to follow the Minister of Police’s command to ignore the human rights of “criminals” (by which he meant “those suspected of committing criminal offences”).
Somebody should only be punished for committing a crime after he or she has been convicted of committing that crime after the conclusion of a fair trial. This requirement protects society against the abuse of power by the police or from vigilante “justice”. Where we explicitly or implicitly grant police officers the legal right to try and then punish criminal suspects based on untested evidence, we invite the police to abuse their power and to terrorise innocent citizens.
As the police already wield enormous power, this poses a threat to the well-being and the lives of every single person in society. When police are told that “criminals” have no rights, they are really told that not a single citizen who finds him or herself in the wrong place at the wrong time (and is thus confronted by a police officer eager to catch and punish “criminals”) have any rights at all.
Of course, in a society in which racism is deeply embedded and in which the lives of black people (especially of poor black people) are often not valued as much as the lives of wealthy white people (as the Marikana massacre and the societal and government response to that Massacre have shown), poor and black people will be disproportionately harmed when police officers are told to disrespect the human rights of “criminals”.
There is another reason why the police should obey the law and should not use excessive force beyond that permitted by the law when apprehending criminals and defending themselves and the public. In South Africa, we have abolished the death penalty as a form of punishment. When police officers ignore the law, treat members of the public as sub-human, and shoot and kill potentially innocent people, they are in effect imposing the death penalty extra-judicially. The police themselves then become violent criminals: instead of protecting the public, they become a danger to the public.
You might think that it is not the end of the world when police break the law to apprehend or even kill criminal suspects – until your innocent partner or child is shot and killed by a trigger-happy police officer who decided that your partner or child is a “criminal”, is thus “sub-human”, and therefore not entitled to have his or her rights respected. Statistics show that there is a distinct possibility that police officers will get it wrong and that they would arrest, shoot and even kill innocent individuals.
According to the South African Police Service (SAPS) annual report for the 2014/15 financial year, the police in that financial year paid out more than R9 billion in civil claims to the public for wrongful arrest and for wrongfully causing injury or death to members of the public. In the same year, claims of more than R26 billion were pending against the police for wrongful arrest and for wrongful injury and death caused by the police.
The 2014/15 SAPS annual report reiterates that the police regards the causes behind the rise in civil claims as a lack of compliance by the police with standing orders and a high rate of unlawful arrests and detentions. The 2014/15 annual report adds that “[c]itizens have become more aware of their rights and are enforcing them vigorously”.
These lawless actions by the police occur even though police officers are permitted to defend themselves (and are even permitted to kill suspects) when they are attacked and their lives are in danger. They are also allowed to use reasonable force to arrest criminal suspects if the force used is proportionate. What police officers are not permitted to do is to shoot and kill criminal suspects to “punish” them, or to arrest suspects when they have no legal basis to do so.
Criminal suspects do have rights, regardless of what the Minister of Police might say. They have rights, because if their rights are not protected, then none of our rights are protected. In the words of justice Chaskalson in S v Makwanyane (in which the court invalidated the death penalty):
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The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of [those] who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.