/ 8 July 2011

Police told to apologise to jogger

Police Told To Apologise To Jogger

The Human Rights Commission (HRC) has told Police Minister Nathi Mthethwa to apologise to Chumani Maxwele, the Cape Town jogger who showed President Jacob Zuma’s motorcade a middle finger and was allegedly detained, hooded and interrogated by his bodyguards.

The commission released its findings on Thursday. The Centre for Constitutional Rights lodged a complaint on Maxwele’s behalf in March last year.

Members of the police VIP protection unit bundled Maxwele into their vehicle after he pulled a zap sign at the cavalcade as it drove past him in Cape Town in February last year.

The commission found that the unit’s members violated Maxwele’s constitutional rights to human dignity, freedom and security, privacy, freedom of expression, peaceful and unarmed demonstration, and political choice.

The police also infringed his rights as a detained person, it found.

The commission also criticised the police’s initial failure to respond “timeously and substantively” to its correspondence on the case, calling it “unreasonable and unacceptable”.

In spite of repeated requests for the police to respond to the commission’s inquiry, it failed to do so.

The police argued that, because of pending civil and criminal court cases launched by Maxwele, it could not respond to the HRC’s many requests.

There is no criminal case but Maxwele has launched a civil case against the police, which has yet to be assigned a court date.

The Mail & Guardian reported previously that HRC chairman Lawrence Mushwana was prepared to hold the case “in abeyance” pending the outcome of the court proceedings, but the Centre for Constitutional Rights disputed the legal basis of the police’s argument.

“It is the commission’s view that, although this matter is before a court of law as a civil damages claim, it involves in the main a dispute over human rights and thus falls within the scope and mandate of the commission,” it said in its report.

It also noted that the complaint to the HRC predated the civil suit, which was lodged only in September 2010.

Based on Maxwele’s undisputed complaint and the investigation conducted by the commission, it called on Mthethwa to apologise.

“The minister of police on behalf of all the members [or] employees who were involved in the incident [must] make a full, written apology to Maxwele, for their unlawful and unconstitutional behaviour,” the commission said — and it must be done within 30 days.

It also required the police personnel involved to ensure that they “accept the supremacy of the Constitution” and the duty of the state to protect and promote the Bill of Rights.

It recommended that the police service must take steps to ensure that its members, especially those in the unit, acted in accordance with the law and the Constitution.

Maxwele said that he was pleased and relieved that the rule of law had been upheld. The case was an “important matter of principle”, he said.

Nichola de Havilland, the director of the Centre for Constitutional Rights, said she was thrilled that Maxwele’s dignity had been restored.

“Equally, this has restored faith in the HRC as a chapter nine institution,” De Havilland said.

The ruling had also brought finality to the question of whether the commission could make a ruling on a case that was before the courts.

“The findings also go towards addressing a greater malaise within the police force, which is the attitude of intolerance and [the belief that it has] unfettered power,” De Havilland said.

Zweli Mnisi, the spokesperson for the minister of police, said he could not verify whether the HRC had sent a formal communiqué to the ministry to recommend that Mthethwa apologise to Maxwele.

He said that Maxwele had publicly indicated that he intended to sue the ministry, but had not yet served the police with any court papers.

“In all fairness, in a matter before the courts both sides of the story must be heard. The minister is the executive authority of the SAPS, therefore he is not operationally involved in any arrests of any person. To ask him to apologise on what we view is a pending matter would be inappropriate.”

Mnisi said the police, however, maintained the “absolute respect for this important chapter nine institution.”