An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
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.BACK TO TOP