Moreover, the CFCR welcomes the recommendation that a full criminal investigation be launched into possible criminal liability of all members of the SAPS and other individuals involved in the incidents. In addition, we welcome the recommendation that an inquiry be instituted into the fitness of the National Commissioner of Police and the North-West Province’s Provincial Commissioner of Police to hold office.  

Section 7 of the Constitution provides that 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 the provisions related to national security and policing must be interpreted.

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 power 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. However, in South Africa, the Constitution, in no uncertain terms, governs the conduct of security services, including that of the SAPS. In this regard, section 199 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 service, 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. Moreover, section 206 requires a member of the Cabinet to be responsible for policing and national policing policy which is in line with constitutional values, rights and principles.

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 ensured that a human rights culture was created in the SAPS so as to respect, protect, promote and fulfil the rights in the Bill of Rights. 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.

When it comes to policing and human rights, prevention is the best cure. First, it is crucial that the National Commissioner of Police and other heads of departments in the criminal justice system are appointed based on qualifications and relevant experience, rather than on political considerations. Secondly, the Minister of Police and the National Commissioner of Police must ensure that policies and strategies of the SAPS are based – in no uncertain terms – on respect for the Constitution and the Bill of Rights. Thirdly, it is crucial that, apart from ensuring high policing standards, a human rights culture is fostered within the SAPS. Frankly, unless the Minister and the Commissioner ensure that recruitment procedures, training programmes and standard operating procedures are designed to ensure a professional service, and instil a human rights culture at all levels of the organisation, the Marikana-incident will sadly not be last of this kind.

By Adv Johan Kruger, Director: Centre for Constitutional Rights