When the state fails

2007-12-17 00:00

The return of “necklacing” to the Cape Flats coincides with the usual announcements that safety and security measures will be enhanced during the forthcoming holiday season. The question is how effective will such measures be — and if they are effective why can they not be implemented thoughout the year? Is the resurgence of vigilantism an indication that the state is failing to carry out one of its most fundamental duties — the duty to protect lives and property?

The gory details below the headlines of the necklacing incident reveal that a suspected robber was burnt to death by disgruntled neighbours of his intended victims; disused tyres were used as fuel for the fire — not a “traditional” necklacing, but nevertheless an indication that vigilantism finds favour among some of the beleaguered inhabitants of the Western Cape.

These developments come hot on the heels of police accusations that the Mayor of Cape Town, Helen Zille, is associating with known vigilantes in her co-operation with Padlac (people against drugs, liquor and crime), which is seen in some quarters as a successor to the now semi-dormant Pagad (people against gangsterism and drugs). Although the mayor was arrested while participating in a Padlac-organised march, for which the necessary permission had been obtained, the charges were withdrawn and her civil claim for damages for wrongful arrest is pending.

It is perhaps apposite to reflect upon the conditions in society which give rise to the levels of frustration, and indeed anger, permitting vigilantism to flourish. When the Constitutional Court decided that capital punishment is unconstitutional in our progressive democracy it spelt out what needs to be done. In his judgment Justice Arthur Chaskalson, then President of the Constitutional Court, later Chief Justice, held: “The high level of violent crime is a matter of common knowledge and is amply borne out by the statistics … The power of the state to impose sanctions on those who break the law cannot be doubted. It is of fundamental importance to the future of our country that respect for the law should be restored, and that dangerous criminals should be apprehended and dealt with firmly. Nothing in this judgment should be understood as detracting in any way from that proposition.”

Building upon these sentiments Justice Laurie Ackermann said: “Members of the public are understandably concerned, often frightened, for their life and safety in a society where the incidence of violent crime is high and the rate of apprehension and conviction of the perpetrators is low. This is a pressing public concern.

“However important it undoubtedly is to emphasise the constitutional importance of individual rights, there is a danger that the other leg of the constitutional state compact may not enjoy the recognition it deserves … [In] a constitutional state individuals agree (in principle at least) to abandon their right to self-help in the protection of their rights only because the state, in the constitutional state compact, assumes the obligation to protect these rights. If the state fails to discharge this duty adequately, there is a danger that individuals might feel justified in using self-help to protect their rights.”

The Bill of Rights entrenches the values of human dignity, equality and freedom in our Constitution. The state is obliged to respect, protect, promote and fulfil these rights. In particular “everyone has the right to freedom and security of his person — which includes the right … to be free from all forms of violence from either public or private sources.” All this is foundational to our democratic and open society in which the government is based on the will of the people and every citizen ought to be equally protected by the law.

The current surge in vigilantism would appear to be due to the perceived failure of the state to properly discharge its duty, through the efficient administration of the criminal justice system, to ensure that criminals are apprehended and convicted as necessary conditions precedent to their punishment.

International comparisons reveal that vigilantism does not thrive in societies in which an appropriate amount of resources and skill is brought to bear upon the administration of criminal justice through the adequate provision of policing, prosecution services, courts of law and correctional facilities.

The two most basic duties of governments in modern nation states are, firstly, to protect the country against foreign aggression and, secondly, to protect and secure inhabitants and their property by the prevention, combating and investigation of crime and the maintenance of public order.

The South African “arms deal” has more than adequately catered for the threat of foreign aggression. On the second aspect the same is not the case. The police are understaffed, ill-equipped, inadequately trained and under-resourced. Too often senior appointments are made because of political affiliation rather than skill and experience. The courts, staffed by ever fewer judges, are inundated and inadequately resourced, while correctional facilities are corrupted over-crowded hell-holes in which criminality is promoted rather than corrected. Unfortunately there does not seem to be any “justice deal” under consideration by those currently in power in South Africa.

It is accordingly not surprising that vigilantism is resorted to by some of those who consider that the state is not keeping its end of the bargain. In the absence of adequate state protection lynch mobs, self-appointed vigilante committees and groups and kangaroo courts gain in popularity.

Judge Navsa in the Supreme Court of Appeal noted: “Law and order break down even further with catastrophic consequences when vigilante action is resorted to … Law enforcement agencies will do well to note that inaction and apathy on their part lead to this kind of behaviour.”

It is a central task of the government to nurture respect for the rule of law in all inhabitants of the land. This is best done by creating a standard of law enforcement under which people do not feel the need to resort to self-help and vigilantism. The Ministry of Justice is embarking on the first steps towards a massive new investment of human and material resources in the criminal justice system. It needs the support of the public, the legal professions and civil society organisations in this endeavour. Any failure to bring to bear the necessary will and skill could well result in the anarchy which flows from unchecked vigilante action.

It is as well to remember that problems of lawlessness are not new in South Africa. Consider the poetic prose of Alan Paton in Cry the Beloved Country published in 1949: “Have no doubt it is fear in the land. For what can men do when so many have grown lawless? Who can enjoy the lovely land, who can enjoy 70 years, and the sun that pours down on the earth when there is fear in the heart?”

— The F.W. de Klerk Foundation.

• Paul Hoffman is the director of the Centre for Constitutional Rights.

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