MARIKANA: the case for political culpability

2015-08-22 09:33

DESPITE its inevitable limitations, the Farlam Commission report, when linked to the broader policing context, and ministerial interference in the post-massacre work of Independent Police Investigative Directorate (IPID) points to political culpability for the death of 34 people. Commissions make findings based on evidence placed before them and in this case, the evidence was corrupted by systematic concealment and falsification by police management. Furthermore, its initial mandate to investigate the role of the Department of Mineral Resources or any other government department was subsequently withdrawn.

The findings against the police are damning. The tragic events of August 16, 2012, were a direct consequence of the “inexplicable” decision of Major- General Zukiswa Mbombo, the North West provincial commissioner, endorsed by the national commissioner and other senior management members at a secret meeting held late on the eve of the massacre.

While the national commissioner must bear responsibility for what happened, it is essential to look beyond her role at reasons for Mbombo’s decision. The then minister of Police, Nathi Mthethwa, is also liable by virtue of his office. Marikana was yet an example of all that is wrong with policing, a state of affairs for which successive executive members of the government and commissioners should share responsibility, including the politicisation and re-militarisation of policing, the promotion of a shoot-to-kill policy, the rewarding of incompetence with promotions, and their failure to act against systemic police brutality.

The case against the police

In the run-up to the killings of August 16, 10 people (miners, security personnel and police) had been murdered during an unprotected strike at Lomnin. Large groups of strikers, armed with traditional weapons regularly gathered on small hills (koppies) demanding that mine management meet with them about their grievances. Senior police members with experience in crowd management, together with mine security, were in the process of implementing a “minimal risk” plan to persuade the miners to disarm and disperse. Without consulting with these members, Mbombo, lacking any requisite experience, took the sudden decision to change to a “tactical” option forcibly to disarm, disperse and arrest the miners on August 16 (D Day). The decision was not dependent on there being any escalation in the violence.

There was no legal basis for the action which followed. In addition to international norms, domestic laws stipulate that police should use minimal force, and lethal force only as a last resort if lives are endangered. The level of concealment of evidence, and lying by senior members — even to the extent of contradicting each other — is mind boggling, as was the ignorance of some senior members of policing policy and a crucial standing order (262). Despite deaths being anticipated (four mortuary vans were commissioned and 4 000 additional R5 rounds were ordered), first aid preparations were grossly inadequate.

With one exception, the fatalities occurred in two different places, termed scene one and scene two. At scene one, 14 men died on the spot and three died in hospital after 1 327 live rounds of R5 gunfire was unleashed on them. Apart from military assault weapons being unsuitable for crowd management, the fact that they were on automatic fire was widely condemned, with even a police colonel admitting gross negligence. The firing continued for about a minute after first cease fire call. The leading group of strikers would have moved towards the (Tactical Response Team) TRT line to escape teargas and stun grenades fired from behind them. Four members of the second group of miners were at such a distance from the TRT they could not have posed a threat to them. Many of the injured appeared shot from behind.

The shooting at scene two (described as koppie 3) occurred 14 minutes after the first shooting, with 14 men dying at the scene and three dying in hospital. Chaos reigned at scene two, with different units firing towards each other and a complete loss of command and control on the part of the police. Given the police’s garbled and contradictory version of events, interference with the scene of the crime, and the lack of adequate forensic and ballistics evidence, the commission was unable to make a finding and referred the matter for investigation under a senior prosecutor assisted by independent experts.

The vast majority of deaths (and injuries) were caused by R5 automatic fire and although other units (e.g. NIU and POP) were present, the TRT appears to be the main culprit. Established by the previous commissioner of police, the TRT operating in KZN soon acquired a reputation for brutality that had been drawn to the attention of SAPS management months before Marikana. Some of their activities involved assault, abuse and destruction of property, and when IPID attempted to bring the culprits to book, TRT management failed to co-operate in the holding of ID parades. Recommendations by IPID that disciplinary proceedings be taken against some members were ignored by the provincial commissioner.

The case against the politicians

The commission was unable to answer the question of why there had been this inexplicable change of plan because “at the highest level”, the police had decided not to provide it with the true version of what happened at the meeting. This even to the extent of preparing an inaccurate set of minutes and testifying in support of them. Mysteriously, the memory stick recording the meeting had been lost.

What was known (but not initially divulged by the police) was that during “extraordinary” discussions with Lomnin management, Mbombo had referred to concerns that management could be seen as capitulating to Amcu (the new union supported by strikers that was in competition with NUM). There were also concerns about the role of Julius Malema, who had been expelled from the ANC, and who seemed to enjoy the confidence of the strikers, to the extent that he might be able to take credit for any breakthroughs made. Mbombo also mentioned that Cyril Ramaphosa — then an ANC NEC member with business interests in Lomnin — had called the minister of police, Mthethwa, urging that the police deal with the situation.

Ramaphosa’s subsequent defence was that he was concerned about the loss of lives in what he maintained was a “purely criminal” matter. Lacking any prima facie evidence to the contrary, the commission declared that his intervention was “not improper”, or that it would have influenced the SAPS subsequent conduct.

Given his own background in trade unionism, it does seem strange that Ramaphosa should claim that the matter was purely a criminal one for since the rolling mass action of the early nineties strikes have usually been accompanied by violence and, in some cases, deaths. Why had he not urged management to meet with miners and to desist from ordering miners to work despite the danger they faced in doing so? Did he not know about the squalid living conditions, and that Lomnin had failed to honour an agreement with the Department of Mineral Resources to build 5 000 houses for miners?

Based on his international experience, Dutch policing expert Kees de Rover told the commission it was likely that, given the economic and political ramifications of what was happening at Marikana, the police would be guided by the executive in reaching such a decision (and he indicated that two senior SAPS members — who emerged with more credibility during the hearing than their colleagues — agreed with him). There was, of course, no evidence to support this view given the manufactured paucity thereof. The commission was thus unable to make a finding against Mthethwa.

Experience in working on policing issues for the past 25 years supports De Rover’s position that the directive came from the executive. There is political interference in policing at all levels of government that is linked to the conflation of the interests of the governing political party and those of the state, which should, in a democracy, be kept separate.

Leaving aside the intervention by Ramaphosa, events at Marikana posed a problem for the ANC itself because an Amcu victory might further erode support for NUM — an important component of its alliance partner Cosatu — and any credibility Malema earned would be at the expense of his erstwhile party. Given political interventions in policing, including the deployment of two party heavyweights as commissioners, how likely is it that Riah Phiyega would have been appointed to her position had she not been pliable enough to take political instructions?

Executive members of the government also played a crucial role in covering up after the event. The commission berates IPID for its lack of independence, but that independence exists only on paper for it relies on SAPS crime-scene management and ballistics. However, it does on occasion use private pathologists, which is often essential because there are insufficient specialists at state facilities due to the disastrous handling of forensic mortuary services by the Department of Health.

Shortly after the massacre, an inter-ministerial committee ordered the bodies of the victims to be removed to a state facility some distance away, and for all 34 post mortems to be completed within two days. X-rays of the bodies, which are crucial in autopsy findings relating to bullet wounds, were not made available to the doctors tasked with performing the rushed autopsies. It is not surprising that the commission was left in the dark about events at scene two and that there was disagreement between one of the doctors working under extreme pressure and an independent expert about the instrument used to kill one of the victims.

The way forward

Six weeks after the release of the Farlam report, the focus is on whether the prime scapegoat, Phiyega, will bite the bullet of redeployment (or a golden handshake) — and probably be replaced with another political deployee. Despite the calls by the commission for demilitarisation, the military ranks remain, as does the anti-constitutional policing culture that spawned the Marikana excesses, including routine brutality and torture.

Only when policing is depoliticised and appointments are made on merit, and when IPID is removed from the control of the police and given the resources to be independent, is our constitutional policing culture likely to start a slow and long overdue change. There is no sign of any will to make such changes.

• Mary de Haas is the KZN violence monitor

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