The former secretary for safety and security, Azhar Cachalia, an habitué of detention cells in the bad old days, is credited with perhaps the most insightful comment about our police.
Comparing his experience of them under, first, apartheid and then in our young democracy, he is reputed to have said: “We used to think the police were brutal but competent. Now we know they were brutal because they are incompetent.”
He was implying that competent police are unlikely to feel the need to resort to brutal methods. To this we can add our own questions: does a competent police or security service need powers to hold suspects under conditions that might enable or encourage it to brutalise answers out of those suspects? And should an incompetent police force be allowed such powers?
These two questions are relevant to assessing the government’s suggestion that, in order to combat terrorism and crimes against the state, we reintroduce a form of detention without trial for purposes of interrogation.
These questions would be relevant in any society. But they are all the more so in ours, given the gross abuses of detention without trial by the apartheid government and the patent shortcomings of our police service and other security agencies.
As we well know, prosecution and detection rates are very low. And it is not difficult to reason why. One in three of our 18 000-odd detectives has received no formal detective training. One in four of our 126 000 police is functionally illiterate and thus unable even to take a witness statement. And tales of ineptitude seeping out of the ranks of our spies are not reassuring.
There are, basically, three factors which have driven the government to suggest new anti-terrorist legislation. The first is the disparate character of our legislation bearing on the issue. It is currently spread across 22 different laws at a time when the world trend is towards each country drawing up a single, omnibus anti-terrorism Act that creates a specific offence of terrorism rather than relying on the common law.
Most of our apartheid-era security laws, 34 in all, were repealed in 1996. What remains is one section (54) of the old Internal Security Act – which defines an act of terrorism and provides for the same sentence as for treason – and 21 other laws dealing with areas like civil aviation, nuclear energy and the like.
The second factor pushing the government to suggest a new law on terrorism is that the existing legislation curtails our ability to act against someone who may be guilty of a terrorist act against a foreign target. This, among other weaknesses in our existing legislation, makes it difficult for us to meet our international treaty obligations.
So far, so good. This is unexceptionable reasoning. The case for an omnibus anti-terrorism Act looks compelling. Why not straighten out our law and meet our international partners halfway?
The controversy arises out of the third factor motivating the government’s view. It is the one with which we are all most familiar, namely the growing list of terrorist incidents on our soil, notably in Cape Town. From comments by Minister of Safety and Security Steve Tshwete, it is clear that it is these bombings that immediately lie behind his suggestion that the proposed omnibus law should contain a section that reintroduces detention without trial for the purposes of interrogation.
A draft Bill suggesting detention without trial for a period of up to 30 days was drawn up by a team working with Tshwete. It was forwarded to the South African Law Commission, which had appointed a project committee to look into the issue of security legislation, headed by Justice Craig Howie of the Supreme Court of Appeal in Bloemfontein. The committee reported in July and it set September 29 as the deadline for comments on its report.
That report has been woefully badly covered in the media. The impression has been created that the Law Commission report in some sense endorses the call for the reintroduction of detention without trial. It does no such thing.
What the report says on the issue is this: “The project committee wishes to express its profound concern from the outset that South Africa has a terrible history of abuse in detention, and wants to note that the country now has a constitution which is a product of that history. The committee therefore considers that the most compelling justification needs to be advanced for measures set out in regard to detention for the purposes of interrogation.”
And: “The committee has not received any evidence why measures of the sort set out under clause 16 [dealing with detention without trial] are required and why conventional policing methods are inadequate.”
And further, the committee says that, if the clause dealing with detention without trial for purposes of interrogation were to be passed by Parliament, it would be vulnerable to constitutional challenge.
Why? Because the Constitution would require the state to show that the clause was “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom”.
Moreover, the state would have to show how detention without trial for the purpose of interrogating a suspect was necessary notwithstanding the availability of “less restrictive means of achieving [that] purpose”.
It is a pleasure to be able to say – with acclamation – that the Human Rights Commission has taken a similar view of the detention-without-trial proposal.
If the proposal gets much further – and the Law Commission’s committee has suggested 14 days is a less unsuitable period than 30 – behind the legal argument will lie the moral and political considerations that inspired the authors of our Constitution to draw up a Bill of Rights. And here the character of detention without trial for the purposes of interrogation could count for a great deal. According to a local human rights lawyer: “The inarticulate premise of detention without trial is that it will make people talk. If the suspect does not, it is implicit that the captor will resort to unlawful conduct.”
The case for an omnibus law against terrorism is a strong one. But the reintroduction of detention without trial is best left out of it, at least for now.
Let us develop competent police and security services. And, if then we find we still need to, we can revisit the question of whether we need to reintroduce detention without trial.