Using a State of Emergency to combat crime puts the solution in the hands of the problem, argues Nicholas Smith
SHOULD the government declare a State of Emergency in an attempt to deal with the crime epidemic? Probably not, but this is a complex question so we first need to define our terms. The “crime problem” is, of course, not just one problem. Crimes as disparate as carjacking, domestic violence, vandalising property, and cheque fraud may all constitute an attack on the democratically elected order. But they do not have much else in common.
Calls for a greater police presence are not likely to be a response to the problem of domestic violence. When people ask for a referendum on the death penalty to deal with crime, they mean violent crime, not white-collar crime. We do, as individuals and interest groups, have different concerns, and they may not all be susceptible to the same, or any, short-term solution. We may, however, assume that an Emergency is being suggested as a short- term solution to the problem of violent street crimes.
A State of Emergency may, in terms of the Constitution, only be declared by means of an act of Parliament, and only when “the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency …” The present persistent and pervasive crime wave might be styled “disorder” and there are certainly many of us who feel it is a public emergency. A State of Emergency must also be necessary to solve the problem. That is the difficult question.
The essence of a State of Emergency is the derogation of certain fundamental rights – for example freedom of expression, freedom of movement or the right to be brought before a court not later than 48 hours after being arrested.
Clampdowns on the media and detention without trial are the aspects of an Emergency that South Africans are most used to. And we are in no hurry to experience those again. Detention and censorship provided the means and opportunity for state-sponsored terrorism. And the corruption brought on by near-absolute power was complete. The rotten-apple theory, in terms of which a police force is considered basically sound, save for one or two crooked or over-zealous members, clearly had, and has, no application in South Africa.
The South African Police was more than just an instrument of oppression, but it was that too successfully for transformation to be an easy feat. The new members of the South African Police Service are, by Commissioner George Fivaz’s own admission, largely untrained and unskilled. The management problems facing Fivaz are apparently sufficiently overwhelming to make even American super-cop William Bratton nervous. But it is this police force that would have to run the Emergency.
What would it do with increased powers but no new resources? We know that there is still a lot of torturing going on. Would an Emergency make it easier for that to happen and for other forms of violence and corruption in the force to flourish?
Or could an Emergency facilitate the cleaning up of the police force so that its many excellent members could get on with their main function?
This last possibility would have to be the point of departure, but it would be a daunting task as there are too few trained replacements and too many ready to listen to the idealistic voice of the Police and Prisons Civil Rights Union. A chaotic State of Emergency is not a happy prospect – better at least to have an unconstrained press to monitor the chaos that exists already.
The Department of Justice also does not seem able to perform even its normal tasks. What could it contribute to a programme of short, sharp State of Emergency shocks where it would have to perform in 21 days and then in renewable three-month periods? It is precisely our criminal justice system that is collapsing – would it really help to give that same system more powers, possibly allowing it to become less accountable?
Is anyone sanguine about the available alternatives? I hope not. Those calling for immediate solutions may have off-the-wall ideas like putting prisoners down mine shafts or the organisation of vigilante groups. Or they may have more plausible (but ultimately, I think, wrong) suggestions, such as the declaration of an Emergency or the introduction of stiffer penalties. Both groups are right about one thing: we cannot sit and wait while the socio-economic causes of crime are sorted out.
The academic sources that inform Bratton’s zero-tolerance policies have grasped at least one criminological truth: socio- economic reform and development does not necessarily diminish a country’s crime problem. In country after country in Western Europe and elsewhere, increasing affluence saw increases in crime levels, leading criminologists to declare an “etiological crisis”. Crime has to be confronted directly. But sensitively. Prominent British criminologist Jock Young, who introduced the notion of the etiological crisis, also speaks of a crisis in penality and we all know that our prisons are not functioning well.
We may have to rely, in the end, on small incremental changes such as those initiated by groups like Business Against Crime. We will all have to make a contribution – in our schools, churches, universities and so on, to building a law-abiding culture.
The commissioner must continue to look for an immediate response to the bank robberies, burglaries and hijackings that paralyse us. He must avoid gimmicks and demand more substantial support from the government. The ruling party must start thinking seriously about whether it can afford, in its midst, the presence of people who are unlikely to inspire a commitment to a scrupulously law-abiding lifestyle. Any suggested solution that involves the curtailment of civil liberties must be more thoroughly justified than recent proposals have been.
Nicholas Smith is a lecturer in constitutional law at the University of the Witwatersrand