Apartheid State v 2. 0 : The new and improved Police State

2016-05-02 20:41

As alluded to in my previous post about the #RuReferenceList , my focus this week is on South Africa’s emergence as one of Africa’s most visible police states  in the 21st century.

As we have seen from the recent protests at Rhodes and elsewhere across the country, the ever increasing use of force by the South African Police Services (SAPS) on unarmed and peaceful protesters remains a sad part of everyday life in South Africa. If one is to be fairly objective and frank, then the reality is that the threads of the Apartheid State remain firmly woven into the constitutional democracy that is enjoyed today. I would go as far as suggesting that South Africa has in recent years, exhibited undeniable traits of being a police state. But how dare I make such a statement? Let’s look at the facts before getting emotional.

What is a police state anyways?

At the heart of a police state is the use of force and repression by the police to limit the freedoms and rights of civilians. In other words, a country with a police force or branch of the security services that limits the freedoms and rights of civilians by using force and violence repeatedly is a police state. The usual excuse given to justify such use of force is that the police will be acting to restore peace and order or more broadly, for national security. It’s fairly important to recognise that Hitler used the same excuse, Mussolini used the same excuse and so did the Apartheid State.

History is replete with examples of these type of states. Some of the more notable police states include the then Soviet Union, North Korea and of course, Apartheid South Africa.  The advent of democracy did not end the heavy handedness of the State. Most of us tend to think that a democratic and constitutional state cannot possibly be a police state at the same time but I beg to differ. In my view, it is possible to have a ‘constitutional police state’ and modern examples of these include both South Africa and Zimbabwe. You see, a police state is seen best by its deprivation of liberties, freedoms and rights and brutally so. It is therefore quite possible to have a constitution that creates these rights but be a police state because the state does not secure and protect these rights. Of course having the two seemingly contradictory terms also indicates that the constitution is not given effect to. Having a constitutional police state also means that the said country is a few steps from being a failed constitutional republic because if it wasn’t then there would be no arbitrary limitation of rights and liberties especially through the use of violence. Rights are not absolute and that is not in dispute but their limitation in a constitutional democracy is done by set procedures in the constitution and not forcibly by the police or any other security branch of the State. For the greater part of its lifespan, the modus operandi of the Apartheid State was simple: to limit basic rights of citizens through the use of violence.

Connecting the dots …

According to Groundup , statistically , the SAPS is more lethal than their counterparts in the USA .Two essential features of a police state are present in post-Apartheid South Africa. These features are the curtailing of fundamental rights and doing so by means of violence or the threat of violence. One would have expected that the culture of state violence against citizens would end with the ‘death’ of the Apartheid State but instead what we have seen is a resuscitation of this kind of violence across the country. In 2012, 34 miners were shot dead and another 75 injured in what is now referred to as the Marikana Massacre. The Farlam Commission’s report aptly shows the problem with policing in South Africa. The miners exercised their right to strike where they demanded a wage increase and this protest resulted in the loss of life because of the excessive use of force by the SAPS.

An alarming number of service delivery protests are accompanied by the use of excessive force. Protesters are teargassed, shot with rubber bullets and in some cases there have been accusations of live bullets being fired. The 2015 #FeesMustFall protests also saw disturbing cases of the police attempting to disperse protesting students by using excessive force. Pictures of students who were injured by the use of such force were circulated extensively on social media and yet the situation remains the same. The use of force is not the only issue – the arbitrary arrests of protesters is also becoming a grand feature of our constitutional order. A number of students were arrested during the protests in 2015 but statistics show that at least 90% of those arrested were never charged with offences or alternatively had charges dropped because of insufficient evidence to prosecute on. This again, points to a police state where the use of arrest or the threat of it is used to intimidate citizens not to exercise their rights. I have no doubt that most of the arrests are not made with the intention of a successful prosecution but rather intimidating the protesters into backing down.

Perhaps the most disturbing aspect of the last student protests at Rhodes are the images of the Rhodes VC pleading with the police not to fire at protesters. One has to ask the obvious question, when will this kind of action come to an end? How different is the response of the State (through the police) from that of the Apartheid State? How does one begin to explain to their children that in 2016, students were arrested, shot at and teargassed as they were protesting to end rape culture at their university? How is it justifiable that communities that protest against poor service delivery are met with teargas and rubber bullets just for merely blocking roads? Ironically, protests were one of the primary tools used to put pressure on the Apartheid State but instead of the State protecting its citizens, it is doing exactly what the Apartheid State did.

Sadly, when one looks at the track record of police in recent years, it is evident that the oppression and indignity referred to are still an ever present reality that is not being dealt with as urgently as it should. Part of the problem is the continued existence of the Gatherings Act (an Act that should have ended with the era under which it was drafted but Parliament has been too busy to revisit this). It has been a shield for many such arrests but surprisingly, even it does not provide a ground of justification for the kind of force we have seen. The Act does allow for the use of force only when it is absolutely unavoidable and as a measure of last resort. The Act also qualifies the degree of force by insisting that it should be proportional to the threat presented by protesters. In other words, the Act requires that the use of force is appropriate for the harm present. The use of force in the Act is not to crush a protest or deal with supposed illegalities of the protest but rather to avert any possible harm present for instance, the use of violence by the protesters that could result in injury or death. Before this action however, the Act lays down several stringent steps that the SAPS must take before using that force. Without getting into specifics, it is very clear that these steps have not been taken when force is used. Having been to three such protests where the police used excessive force, I can also suggest that we have not seen the kind of violence envisaged by the Act that would justify the degree of force that has been used.  In short, the use of force by the police at most protests simply qualifies as illegal conduct and yet the State has not decisively acted in a way that curbs this.  What makes this force more unacceptable is that the protestors are unarmed and largely peaceful.

Who cares what kind of State it is?

The danger with continuing on this slope is that countries like Zimbabwe started on the same path before blatantly disregarding the rule of law. University of Zimbabwe student leaders were often imprisoned in the 90's for the uprisings and protests started. It was not uncommon to find the riot police being sent to crush any protests on campus. Resultantly , the University has not seen active student activism since then because the State managed to silence voices of dissent . It's easy to sit back and say it won't happen here but that is probably what was also said back then . All it takes is to turn a blind eye to such issues until there is eventually such a fear of police that neutralises any thought of speaking up.

What we have seen with the SAPS is that it is a police force that is a law unto itself, crushing fundamental rights of citizens while the custodians of the rights of those citizens remain quiet and indifferent. It was business as usual for government while students were being indiscriminately fired at or arrested.  One of the recommendations made by the Marikana Commission was that the police need to be trained adequately to police in a manner consistent with the Constitution but this has not been done and such is the culture of 'unaccountability' and lawlessness that bedevils the SAPS. Indeed the SAPS needs to completely revisit how it responds to protests in a democratic South Africa and institute the reforms slated in the Commission’s report. The government must condemn this use of force in the strongest terms and be seen to act against it if it is to regain the respect of the masses. I shudder to think how many more lives will be lost until the government realises that there is a huge problem with policing in South Africa. I don’t have the answer to when this will happen but one hopes that the Marikana Massacre will never play out again in a democratic South Africa. Surely this would be a befitting tribute to the lives lost during that massacre.

Perhaps the State should be reminded that “If the people cannot trust their government to do the job for which it exists –to protect them and to promote their common welfare-all else is lost.”

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