The new Police Bill balances human rights with the need to combat crime, writes Azhar Cachalia
t is probably true that crime has become the factor which occupies the minds of South Africans more than any other issue in our new democracy. As the police, courts and communities battle to deal with the problem, we constantly hear arguments for the need for more police powers to combat crime. Calls for the reimposition of the death penalty and the denial of bail for arrested suspects are now commonplace. This, of course, raises the question as to whether we will succeed in creating the human rights culture so many people have fought for.
It should be borne in mind that South Africa is not the only country that has grappled with the tension between creating a human rights culture, on the one hand, and combating crime effectively, on the other. Our Constitutional Court has, in two inspired judgments, outlawed the death penalty and declared unconstitutional a provision in the Criminal Procedure Act which imposed a burden of proof on an accused person to show that a confession made to a magistrate was not made voluntarily.
In this latter case, the Court found that, by placing the burden of proof on an accused person, his right to remain silent as well as his right not to be compelled to give evidence against himself was violated. However, it is important to emphasise that the Court explicitly recognised the pressing social need for the effective prosecution of crime and noted that, in some cases, the prosecution may require reasonable presumptions of law to assist it in this task.
In so noting, I believe the Court sent out the correct signal for the need to maintain a human rights culture while acknowledging the need of the authorities (police and prosecutors) to have sufficient powers at their disposal to combat crime.
In assessing whether the legislature has got the balance right and not conferred excessive power on the authorities, a court will scrutinise a law to ensure that it is reasonable and justifiable in an open and democratic society based on freedom and equality and, further, that the essential content of the right has not been negated. In some instances, such as where the fundamental rights of accused persons are involved, the authorities will have to show that, in addition to being reasonable, the intrusion into the accused person’s rights is also necessary.
The about-to-be-published Police Bill confers certain powers on the police to deal with various problems. In assessing whether these powers will survive constitutional scrutiny, the Ministry of Safety and Security will, if required, have to persuade the Constitutional Court that these problems are of pressing social concern and that the way the laws have been drafted meets the requirements set out above (reasonableness and justifiability).
Section 13(2) of the Bill requires a member of the SAPS to use “only the minimum force which is reasonable in the circumstances” to exercise any power or perform any duty under the Act. While this is no more than a restatement of the common law position, its inclusion in the draft will perform an important educative function within the service.
Section 13(6) of the draft Bill empowers the National or Provincial Commissioner “where it is reasonable in the circumstances in order to restore public order or to ensure the safety of the public in a particular area” to effect the cordoning off of a particular area. The area may be cordoned off for a period of 24 hours, during which period the police may, without warrant, conduct searches in the area.
This section empowers the police to deal with the problem that has been confronted in many areas where large numbers of arms come into the area and virtual war zones develop, which makes policing impossible and the safety and security of persons become seriously threatened.
The drafters have built in certain safeguards to minimise the abuse which may occur when the police are compelled to use this power. Firstly, only the National or Provincial Commissioner may order the cordoning off. Secondly, the cordoning off period cannot exceed 24 hours. It is to be expected that the National or Provincial Commissioner will only use such a wide power if there is a request from the community or a community policing forum in the area and the National or Provincial Commissioner accepts that there is no other way to restore public order or to ensure the safety of the public in the area.
Section 13(7) and section 13(8) empower the police to set up roadblocks to assist in the detection and combating of crime and to conduct searches at such road blocks. These powers also infringe the rights of persons under the Constitution, which guarantees freedom of movement and privacy. Again, it is the view of the drafting team that these powers are necessary for the police to effectively perform their duties. An important provision and safeguard is that where any member executes a search at a road block, such member “shall, upon demand of any person whose rights have been affected by any (search or seizure)” exhibit to such person the written authorisation for the setting up of the road block.
The police have powers under numerous pieces of legislation to deal with particular problems. The Criminal Procedure Act, the Drugs and Drug Trafficking Act and the Arms and Ammunition Act confer certain powers on the police. The powers set out in the Bill are in addition to the powers which exist in any other
In conferring additional powers upon the police in the draft Bill, the drafting team looked very carefully at whether these powers were required. Having decided that they were, the drafters had to ensure that these powers would survive Constitutional scrutiny. In so doing, we were consciously alert to the guideline set by the Ministry of Safety and Security of building a human rights culture on the one hand, while effectively combating crime on the other.
Whether the drafting team achieves this delicate balance will be up to Parliament in the first instance and, ultimately, if necessary, the Constitutional
Azhar Cachalia is advisor to the Ministry of Safety and Security and chairperson of the Police Bill drafting