By Phephelaphi Dube: Director, Centre for Constitutional Rights
The Minister of Police last week, speaking at the relaunch of the Tactical Response Team, stated that “Even if you do not have a warrant of arrest‚ slap them. Break the law progressively and let me worry about court cases.” He further used language unbecoming for the Centre for Constitutional Rights’ readers, to drive home the point that the South African Police Service (SAPS) must use excessive force and at times act unlawfully, to apprehend violent criminals.
The Minister of Police’s views are delivered in the context of a nation with one of the world’s highest crime rates, however, policing must still be underpinned by human rights considerations. In this regard, human rights are derived from the inherent dignity of all persons. It is vital that the SAPS act within the confines of the law at all times. Additionally, the SAPS needs to respect the principle of legality, necessity, proportionality, non-discrimination and humanity. This means that in responding to crime, the SAPS should only use the necessary force in order to apprehend criminals. The SAPS Act too, is cognizant of this legal principle, given that its preamble enjoins the police service to uphold and safeguard the fundamental rights of every person, as guaranteed by the Bill of Rights in the Constitution.
Of course, the SAPS are often called to make this judgment in split seconds and under dangerous circumstances. The Constitutional Court in 2002 in S v Walters defined the parameters under which suspects may be shot. The judgment made allowance for potentially deadly force to be used to arrest a fleeing suspect when the suspect committed a crime involving the infliction or threatened infliction of serious bodily harm, regardless of whether the suspect posed an immediate threat of serious bodily harm to others at the stage of arrest. The Minister of Police’s words fail to reflect the Constitutional Court’s nuanced understanding of the use of force by the SAPS. This nuance ensures that the SAPS can bring dangerous criminals to trial. Suffice to say, a balancing act between the rights of criminals and those of the society as a whole must be reached. This requires that the circumstances of a specific incident and constitutional norms and values be weighed against each other. Constitutional values are thus an ever-present requirement, even in the apprehension of individuals who have committed heinous crimes.
It is not the first time that similar sentiments from Police Ministers have been voiced. The erstwhile Deputy Safety and Security Minister, Susan Shabangu was quoted as saying “You must kill the bastards (criminals) if they threaten you or the community. You must not worry about the regulations”. Former National Police Commissioner, Bheki Cele, wanted the Criminal Procedure Act to be amended to allow the SAPS to “shoot to kill” criminals without worrying about “what happens after that”. South Africa has enough examples of such heavy-handed policing, of which perhaps the SAPS involvement in the Marikana killings of 34 striking mine workers in 2012 serves as the most jarring reminder in recent history.
SAPS policing needs to evolve to become more proactive in combating crime, as opposed to the reactionary and heavy-handed responses by the responsible officials. The seeming tradition of the SAPS to appeal to aggression, violence and lawlessness clearly has made little to no impact on the crime rates. This speaks to a need for the SAPS to change its tactics with regard to how crime and criminality are addressed. There should be more community engagement, particularly in communities most vulnerable to crime. There exist bodies, including the Civilian Secretariat for Police (CSP), mandated to conduct civilian oversight of the police, and the Independent Police Investigative Directorate (IPID), mandated to investigate complaints involving the police. Both the CSP and IPID are meant to be independent bodies, but the effectiveness of each office is in doubt due to inadequate funding and resources, as well as political interference. Settling civil claims, as the Minister of Police suggests, cannot be solution for addressing human rights violations by the SAPS. It is a travesty that the civil claims lodged against the SAPS amounted to R14.672 billion in the 2015/16 financial year, of which R290.9 million was paid by South Africans.
Effective policing within the context of the Constitution and an entrenched human rights culture in policing requires a concerted effort. South Africans need the assurance of the Minister of Police that crime will be effectively tackled, but such assurances cannot serve as dog whistles for lawlessness in crime fighting. It must be noted that the Minister of Police is prone to making rash statements, seemingly without regard for the power which his office wields. His remarks may very well spark flames of lawlessness in policing. The Minister and the National Commissioner have a constitutional duty to ensure that the SAPS performs its functions in accordance with the Constitution and the law.