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.
Comparisons between events in current day South Africa and the apartheid era are almost always unhelpful, callous and intellectually lazy. While, on a rhetorical level, these kinds of comparisons can be quite effective to stir up outrage and angry emotions, they almost always disregard the obvious fact that the political and legal contexts today differ profoundly from that of the pre-democratic era.
We now live in a constitutional democracy (although some bittereinders, other racists and conspiracy theorists like to deny this obvious fact) with a democratically elected and hence legitimate (albeit far from perfect) government. Citizens can have their rights enforced by the courts and there are other constitutional and legal mechanisms available to them to effect change in their own lives and in their communities. If we are critical of the government we will normally not be locked up (as often happened during the apartheid era), and if we demand answers from our government who fob us off with yet another lame Commission of Inquiry, chances are that the Security Police will not come to poison us or arrest us (as they often did during the apartheid years).
No matter how incompetent, heartless or corrupt some members of our government or other state agencies may appear to have become, they are not “worse than the apartheid government” or “worse than the apartheid police” because they are members of a democratic order and not part of an oppressive, racist system which perpetuated an ideology which was declared a crime against humanity.
So, when commentators compare the Marikana massacre to the Sharpeville massacre of 1960, I cannot help but cringe and bristle at the intellectual laziness and/or the moral amnesia inherent in such a claim. No matter how wrong-headed and opportunistic our leaders appear to be and no matter how bloody-minded and uncontrollably violent our Police have acted, they remain part of a democratic state whose government can easily be voted out of office at the next election if us voters decide that we do not like what the government party has become and what it is doing and saying (or not doing and saying).
This does not mean that we cannot and should not criticise our leaders in government or the members of the SAPS (including the Police Commissioner). It does not mean that we should not insist that our political and other leaders provide us with credible explanations and answers about why the Police massacred 34 miners with machine guns and that we should not demand that our leaders deal swiftly and wisely with the crisis without cheaply and opportunistically trying and exploit the events for political gain (as all political parties – from the ANC to the DA and everyone in-between – seem to be doing at present). It does not mean that we should not expect the Police leadership and our politicians (who are in positions of power and influence) to show some respect for the dead and for the soon to be established Commission of Inquiry by not making inflammatory or obviously self-serving statements without providing evidence to back this up.
When one reads that Police Commissioner Riah Phiyega stated on the weekend that officers should not be sorry about the shooting near Lonmin in Marikana (a shooting in which the Police killed at least 34 people by spraying them with machine gun fire); when one reads that she told a press conference that “this is no time for blaming, this is no time for finger-pointing” before providing a detailed argument for why the miners are to blame for the massacre and why the Police merely acted in self-defence; then one has to ask whether she is up to the job and whether she should not perhaps first take a course or two in formal logic and rhetoric before taking on any other high level job.
On the weekend Phiyega also told Police Officers at the funeral of a Policeman killed in the conflict that:
The safety of the public is not negotiable. Don’t be sorry about what happened…. We confront, every day, heartless criminals who are gunning for our lives…. You can put yourselves in danger a thousand times and come out unscathed or just once and not make it. You never know in advance how things will turn out and that is our line of work.
Why claim that this is not a time for finger-pointing if one was going to proceed to exonerate the Police and to point fingers at the so called “murderous” strikers? Did Phiyega really imply – as the article suggests – that the miners threatened the safety of the public and that they are all heartless criminals? If yes, where is the evidence to back up such extraordinary claims and why make such claims shortly after pleading with everyone not to point fingers?
Or did Phiyega only mean to say is that now is not the time to point fingers at the Police and at those who were actually involved in the massacre or had given orders which led to the massacre? President Jacob Zuma made a similar statement, suggesting that he was also pleading with the public not to ask difficult questions about why the Police shot at fellow citizens with machine guns. (“We must avoid finger-pointing and recrimination,” said the President.)
But hell, in a democracy, it is not only our right but our duty to ask the difficult questions; to demand more information; to look critically at the self-serving statements made by the Police about how they acted in self-defence; to demand that the Police either stop slandering the miners or provide detailed proof (and making bald assertions does not equal proof – no matter what the Commissioner might have been told by her Generals). It is also our duty to ask why our government had not gotten involved earlier in the dispute and our duty to mock the Lonmin leadership for claiming that its leaders were all either in therapy or in hospital and therefore unable to give us their seemingly tawdry side of the story. Yes, we should be sceptical of any version put forward by either the Police or the miners and we should not jump to conclusions, but that does not mean that we should somehow stop thinking and stop asking questions.
And, yes, I have to admit: despite everything I wrote at the start of this piece, when I read the various statements by the Commissioner I had to work hard not to equate these self-serving and contradictory statements with similar statements made back in the nineteen eighties when an unspeakable Police Commissioner by the name of General Johan van der Merwe (who later received amnesty from the TRC for his involvement in criminal activities), always attempted to exonerate the Police when they had been involved in some or other massacre while arguing that those who asked difficult questions about the killing of protestors by the Police (those prone to “finger-pointing”) were unpatriotic or – worse – “traitors”, “terrorists” or “communists”.
Of course, I am not equating our current Police Commissioner with the morally tainted General van der Merwe. That would be far-fetched and completely wrong-headed. But I am pointing to similarities in the manner in which those in power all over the world seem to try and exonerate themselves and their officers from any accountability for any kind of massacre by demanding a free pass for the Police while making wild and (as yet unsubstantiated) allegations against the relatively powerless victims of the massacre.
In a democracy the Police cannot get a free pass. Their actions must be subjected to scrutiny. Unlike the strikers on that hill, the Police have automatic weapons and training in crowd control, they have sophisticated communications specialists with easy access to the media who can communicate with them in the language that most journalists understand, namely English, they have powerful political support from the Minister of Police. The miners have little or none of these advantages and they are relatively powerless against the propaganda efforts that can be mounted by Lonmin, by the Presidency, by the well-connected National Union of Mine Workers and the South African Communist Party leader Blade Nzimande who has already issued a statement claiming the Union is being funded by BHP Billiton to scupper Zuma’s chances of re-election at Manguang (well, I added the last bit about Mangaung myself).
It might turn out that the lives of all the Police Officers who took part in the massacre were really in mortal danger as some now claim. It might turn out that the Police were well trained and that the various responsible politicians did all they humanly could to avoid the massacre. It might even turn out that it was reasonable for the Police to open fire with machine guns on the crowd – although this is almost impossible to fathom in the absence of evidence that the Police had come under sustained gunfire from a group of miners armed to the teeth with guns.
But no matter what transpires, it does not absolve ordinary citizens from the duty to ask the most difficult and uncomfortable questions from the Police and from our government. That is not only our right, but our duty. And no one has a right to stop us from doing so by claiming that in this time of mourning now is not the time for asking questions, for pointing fingers or for recriminations.BACK TO TOP