Every case has two sides and whether any of the aforementioned incidents initially led members of the SAPS to believe they had a right to act in the manner they did, is irrelevant. What is of importance is how members of the SAPS used their powers and how the SAPS train and instruct their members to act.
Law enforcement institutions and police agencies are, in principle, entrusted with a state’s most intrusive powers to limit fundamental rights and freedoms. These include the powers to arrest and detain, to violate privacy and ultimately to use force – in some instances even deadly force – to achieve its objectives. This is no different in South Africa. The SAPS, as a component of national security, is mandated by the Constitution to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of South Africa and their property, and to uphold and enforce the law. They are accordingly afforded certain powers in terms of national legislation to be able to fulfil this mandate. The SAPS and policing in South Africa are, however, subject to the Constitution and the rule of law, which means that legislation regulating policing and the use of these intrusive powers, can be justified only within the prescripts of the Constitution.
As opposed to our pre-1994 past in which, according to the Constitutional Court, “security forces were, for the most part, law unto themselves [who] terrorised opponents of the government of the day with impunity and often in flagrant disregard of the law”, the Constitution today provides for a set of principles which govern national security – including policing – in South Africa. These principles, among others, provide that national security must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and to want and to seek a better life. It also determines that national security must be pursued in compliance with the law, including international law and is subject to the authority of Parliament and the national executive. In addition, the Constitution, in no uncertain terms, governs the conduct of security services, including that of the SAPS. In this regard, section 199, for instance, provides that the security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on South Africa. It also provides that no member of any security service may obey a manifestly illegal order and no security services, nor any of their members, may, in the performance of their functions, prejudice a political party interest that is legitimate in terms of the Constitution; or further, in a partisan manner, any interest of a political party.
In terms of section 7 of the Constitution, the Bill of Rights is a cornerstone of democracy in South Africa, enshrining the rights of all people in our country and affirming the democratic values of human dignity, equality and freedom. Accordingly, and in terms of section 7(2), “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”. These provisions are of particular importance to the SAPS as they provide the context in terms of which section 199 and national legislation must be interpreted.
In the Maxwele-case, the South African Human Rights Commission (SAHRC) reiterated the importance of section 7 when it recommended that the Minister of Police and the SAPS should acknowledge the supremacy of the Constitution and the rule of law – as well as the duty of the State in terms of section 7(2) to respect, protect, promote and fulfil the rights in the Bill of Rights. In this case members of the Presidential Protection Unit (PPU) of the SAPS arrested and detained Mr Maxwele for allegedly gesturing with his middle finger at a convoy of police vehicles that were reportedly transporting President Zuma. After having conducted its investigation, the SAHRC found that the SAPS had violated a number of Mr Maxwele’s fundamental rights when they, among other actions, “forcefully bundled” him into a police vehicle, “head-covered”, “leg-tied” and “interrogated” him, after which they searched his home without a warrant or reasonable grounds. However, instead of recognising their shortcomings and implementing the SAHRC’s recommendations, the Minister and the SAPS unsuccessfully appealed the findings before the SAHRC on technicalities and subsequently challenged the SAHRC’s finding in the High Court. Even after the High Court dismissed that appeal, the Minister and the SAPS have still not complied with the SAHRC’s recommendation.
Almost a year after the Marikana-incident, which is still being scrutinised by the Farlam Commission, the Civilian Secretariat for Police published the new Green Paper on Policing for comment. The Green Paper was possibly the ideal opportunity to provide for a strong and unambiguous policy aimed at establishing a human rights culture in the SAPS. It appears, however, that this opportunity has not been seized. Although the Green Paper includes various references to the need for democratic policing, it does so in a manner that appears to assume that such a human rights culture has already been established in the SAPS. Judging by the increasing number of reports regarding police brutality and excessive use of force, it could certainly be argued that the SAPS has not yet achieved that objective.
The Green Paper gives much more attention to “transformation” in a comprehensive section that calls for the development of “a clear strategy for transformation that does not exist as a separate or stand-alone strategy, but one that is incorporated into, and reflected in the overall strategy of the organisation”. However, there is no similar section that calls for a strategy to instil a human rights culture in the SAPS. The Green Paper, nevertheless, deals with the SAPS’s “legal authority to use force in achieving its constitutional mandate”. However, it does so in terms of “policy guidelines and regulations” – instead of legislation – but does not do so within the context of the need to respect the dignity, fundamental rights and freedoms of those whom the SAPS are supposed to protect. In a rather telling introduction to the section dealing with “ensuring effective policing”, the document states that “policing in democratic societies operates in a space between their constitutional framework and the legal framework that defines how they must operate”. Whether this was merely an error of drafting or a Freudian slip, one would not know. The SAPS may clearly not operate in a space between the Constitution and the law – but in terms of the Constitution and subject to the law.
The Marikana-incident could arguably have been prevented had the Minister and the SAPS adhered to the recommendation of the SAHRC, calling for the SAPS to act, teach and require their members to act, in accordance with the Constitution and the law. The Minister and the Commissioner must ensure that policies and strategies of the SAPS are based – in no uncertain terms – on respect for the Constitution. Unless they ensure that recruitment procedures, training programmes and standing operating procedures are designed to instil a human rights culture at all levels of the organisation, Marikana will sadly not be last we hear of the SAPS allegedly operating and acting in a space between the Constitution and the law.
by Adv Johan Kruger, Director: Centre for Constitutional Rights