The increasing number of blatant human rights violations committed by some members of the South African Police Service (SAPS) exhibits an alarming trend which has to be addressed by the Government as a matter of concern. However, despite incessant media reports, the SAPS and the Independent Police Investigative Directorate (IPID) continue to refer to these incidents as isolated cases. On the contrary, this increasingly violent behaviour is more likely indicative of tacitly accepted practices within the SAPS organisational culture and failure by police management to take responsibility for, and adequate action against such practices.
According to media reports and internationally-broadcasted video footage of the most recent incident, a Mozambican citizen, Mido Macia, was apparently constrained by SAPS-members and dragged behind a police vehicle following an alleged traffic violation and subsequent "resisted arrest". Macia was later found dead in the holding cells of the Daveyton police station in Benoni.
Although Commissioner Phiyega in an ensuing statement said that: "All SAPS members are expected to respect and uphold the law at all times and avoid at all costs any conduct that makes us violators of the law", she concluded by stating that "the SAPS [distanced] itself from any member who [did] not uphold the code of conduct and the ethos of the SAPS".
This is exactly the problem. The Minister, the Commissioner and the SAPS are not at liberty to "distance" themselves from the conduct of their members on duty. Instead, they have a constitutional duty to ensure that the SAPS acts, teaches, and requires its members to act in accordance with the Constitution and the law.
In 2010, the Centre for Constitutional Rights, on behalf of Chumani Maxwele, lodged a complaint with the South African Human Rights Commission (SAHRC) against the SAPS. In that case, members of the Presidential Protection Unit of the SAPS arrested and detained Mr Maxwele for allegedly gesturing with his middle finger at a convoy of police vehicles which was reportedly transporting President Zuma. During that incident - as with the case of Mido Macia - Mr Maxwele was also alleged to have resisted arrest.
The SAHRC, after conducting an investigation, subsequently found that the SAPS had violated a number of Mr Maxwele's fundamental rights when they, among others, "forcefully bundled" him into a police vehicle, "head-covered", "leg-tied" and "interrogated" him where after they searched his home without a warrant or reasonable grounds. The Commission also found that the Minister of Police acted in an unreasonable and unacceptable manner by initially failing to cooperate with the Commission in its investigation. In addition, the Commission found that the Minister should be held vicariously liable for the acts of members and employees of the SAPS who are found to have been acting within the course and scope of their employment.
The SAHRC consequently recommended that the Minister, on behalf of the SAPS formally apologise, in writing, to Mr Maxwele for their unlawful and unconstitutional behaviour and that the Minister should provide a report to the Commission indicating his plan towards implementing the recommended remedies, namely: that the Minister and the SAPS 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. The Commission also recommended that the Minister should indicate the steps he would take in terms of section 199(5) of the Constitution to ensure that the SAPS acts, teaches and requires its members to act in accordance with the Constitution and the law.
However, instead of recognising their shortcomings and implementing the SAHRC's recommendations, the Minister and the SAPS unsuccessfully appealed the findings on technicalities and, to date, are yet to implement all recommendations. Had the Minister and the SAPS effectively implemented those recommendations, subsequent incidents such as the killing of Andries Tatane in Ficksburg; the killing of 34 miners at Marikana; countless allegations of brutality by the SAPS Tactical Response Team (notoriously known as "amaBerete"); and now, the death of Mido Macia, may well have been averted.
The State and its organs such as the SAPS have a constitutional duty to respect, protect, promote and fulfil the rights in the Bill of Rights. Accordingly, the SAPS must effect their constitutional powers and authority - whether in preventing, combating and investigating crime; maintaining public order; or protecting and securing the inhabitants of South Africa and their property - within the confines of the Constitution and other legal provisions such as powers of arrest and use of deadly force. Regardless of the challenges which they may face from criminals, SAPS-members must function within the ambit of the Bill of Rights and the law - and the Minister and Commissioner, vicariously liable for the acts of SAPS-members acting within the course and scope of their employment, must see to it.
The Constitution requires an effective police service which is trusted by law-abiding people and feared by those who violate the law - not because of its brutality or ruthlessness, but rather its professionalism and righteousness. As such, inhuman, cruel and outright illegal means aimed at increasing "effectiveness" may never again become part of policing in South Africa. An effective and respected police service will instead result from better training and investigation techniques, effective crime-scene preservation, adequate victim support, proper case management, strong anti-corruption measures and an entrenched human rights culture. Still, unless the Minister, the Commissioner and the SAPS effectively implement the SAHRC's recommendations as set out in the Maxwele-matter - thereby committing to the promotion of a human rights culture within the SAPS - more lives are likely to be lost at the hands of those who are supposed to serve and protect us.
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