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.
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.BACK TO TOP