The CFCR also welcomes the Minister’s assurance given during his Budget Vote speech that the SAPS will be demilitarised as recommended by the National Development Plan. It is surely in the interest of everyone in South Africa to have an effective, professional and dedicated police service – one that is valued, respected and supported by society.
However, in order for a society to have faith and trust in their police service and other law enforcement agencies, these agencies must not only be effective and professional, but must be seen as protectors of human rights. Respect for and the protection of human rights – as required by section 7 of the Constitution – is fundamental to a democratic society based on the rule of law. It is also a prerequisite for genuine and lasting law and order in a society. Accordingly, the Constitution determines that the security services – including the SAPS – “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 the Republic“. Incidentally, the Minister’s announcement of a “comprehensive review of the SAPS Act to align it with the Constitution” (although, any Act inconsistent with the Constitution is, in principle, invalid) may be an ideal opportunity to incorporate into the SAPS Act such provisions necessary to make effective, comprehensive and continuous human rights training mandatory for all SAPS officials.
The Constitution requires the police service, as referenced by the Minister, to “prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law“. However, police officials who violate human rights in the execution of this mandate do not contribute to the maintenance of public order and security, but rather undermine and destroy it by eroding public confidence and trust. They impede effective prosecutions, isolate and alienate the police service from the community and exacerbate civil protest. Moreover, they often result in the guilty going free and the innocent being re-victimised by a criminal justice system that is supposed to protect society.
According to the Universal Declaration of Human Rights, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion… that human rights should be protected by the rule of law“. The SAPS and other law enforcement agencies will only be viewed as successful and trustworthy if they conduct themselves within the context of a human rights culture as required by the Constitution – a culture which the Minister will hopefully prioritise and command as a fundamental requirement for measuring effectiveness of policing in South Africa.
By Adv Johan Kruger, Director: Centre for Constitutional Rights