Police and Marikana’s legacy

2014-11-27 06:45

November 14 was the last sitting of the Marikana Commission of Inquiry.

By the end of March next year, the report of the commission should be submitted to President Jacob Zuma.

It will hopefully be released to the public shortly thereafter.

As is widely acknowledged, the commission has faced serious obstacles. This included systematic efforts by the police to conceal from the commission the truth about the circumstances surrounding the mass killing of striking miners on August 16 2012.

This has been tied to a narrative and adhered to by police lawyers to the very last minutes of the commission, in terms of which police maintain that they did nothing wrong at Marikana.

Despite the obstacles it has faced, the commission appears to have been a positive and substantial process that has tried to examine the facts about an extremely traumatic set of events in a manner that is both sensitive to those directly affected and fair to the parties involved.

Notwithstanding the obstacles the commission has faced, it would therefore appear that we can look to the commission to make findings not just that the massacre was a “tragedy” (as has been argued by lawyers representing the SA Police Service, SAPS), but that it was profoundly wrong and that, in effect, police were responsible for a major atrocity.

But although it is headed by a judge, the commission does not have the authority to find anyone guilty of a crime. The commission may recommend that a number of police officers should be investigated with a view to prosecution.

But in so far as any police officer might eventually be prosecuted, this will depend on an investigation by the Independent Police Investigative Directorate.

But from what we know about these kinds of investigations and prosecutions, it is realistic to expect they will not necessarily translate into more than one or two police officers being convicted.

Any police officers convicted may not necessarily be convicted of serious crimes and may receive relatively light sentences.

Rather than showing the commission process to have been a failure, what this indicates is that the criminal justice process is not an effective mechanism for holding police accountable for the use of force.

Prosecutions are likely to have little impact on the police and be ineffective as a means for addressing the legacy of Marikana.

Likewise, any recommendations that the commission might make for the SAPS to pay compensation to the families of those killed and injured, will simply be a cost that is transferred to the taxpayer.

It has also been proposed that the commission make recommendations for a memorial and that the process of establishing such a memorial should involve bringing the various affected parties together in order “to have a healing effect”.

But once again, participation by the SAPS in this process will not necessarily require that it moves beyond its internal narrative of self-exoneration and comes to terms with the fact that it bears primary responsibility for an atrocity that amounts to a mass human rights violation.

Notwithstanding possible prosecutions, the payment of compensation and some form of memorial, what is likely is that the established narrative of self-exoneration will embed itself within the SAPS.

So the only way in which the SAPS can meaningfully engage with what happened at Marikana is by means of a new leadership that accepts that the SAPS acted in a manner that was profoundly wrong and initiates a process through which the SAPS engages with this fact at

an institutional level. This would include putting forward a profound apology from the SAPS to the victims, and all South Africans, for the massacre.

It would also require establishing a process through which the findings of the commission are explained and discussed within the SAPS and disciplinary measures instituted for those who acted wrongly.

Even if it does this, most – if not all – of the SAPS members who were involved in the massacre are likely to remain in the SAPS and may face little in the way of disciplinary sanction.

Some of them must have been deeply traumatised by the atrocity that they participated in. As things stand, there is no space for them within the SAPS to be allowed to admit to or engage with this fact.

It will be necessary for the SAPS leadership to admit that the SAPS acted wrongfully in order to open the way for SAPS members to admit, even if it is only privately, to the fact that they participated in a terrible crime and to thereby open themselves to the possibility of remorse.

This will not necessarily contribute to ensuring there is justice, but might enable them to recover some of their own humanity.

Bruce is an independent researcher who focuses on crime and policing

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