Law and order has almost always been a political no-brainer; even in the most tranquil of democracies voters thrill to the rhetoric of the big stick. And South Africa, where far too many of our nights are torn by gunfire and sirens, is anything but tranquil, so it is no surprise that a powerful lobby has long called for a return to police kragdadigheid.
Former president Thabo Mbeki and his safety and security minister, Charles Nqakula, quite correctly heard echoes of apartheid in many of those calls, but the buzz of white anxiety seems to have deafened them to the clamour from their own supporters for credible action on crime.
Increasingly brutal vigilantism in poorly policed townships should have sent a clear message, but they just didn’t want to hear it. If crime were truly a national emergency, they seemed to think, the entire liberation project would somehow be called into question. As such, acknowledgement of the scale of the problem was impossible.
President Jacob Zuma not only has an ear to the ground but his own instincts, as he has made clear time and time again, resonate with the popular chorus of “shoot to kill”. Zuma has this much going for him: he accepts that crime is a terrifying reality, not just an ideological construct that must be ignored lest it threaten his own world view. But in choosing to respond as he has, with a muddled appeal to the efficacy of force, he threatens to do as much damage as Mbeki did with his denialism.
The Criminal Procedure Act already allows the police to use deadly force, and they are trained to aim for “the centre of mass”, in other words, to shoot to kill.
They do not need more legal latitude, nor should they be given it. They need better training, not least about what their terms of engagement actually mean. Crime, moreover, is not going to be reduced by a simple escalation of violent tactics on the part of the state, or even by longer sentences to the drastically overcrowded prison universities of crime.
On the contrary, experience around the world suggests it is likely to lead to an arms race between police and criminals.
The ANC itself at Polokwane resolved to focus on community policing and moral regeneration rather than skop, skiet and donner.
That would represent a start, but what is really needed is a dramatically improved detective service, decent forensic capacity and some simpler things: literate cops at charge offices, for example, functioning Âcomputers and vehicles. Even with all that in place, only with a much improved criminal justice system, will the loop be properly closed. In the dying days of the last regime a brutally honest assessment of the failings of that system was released by the justice ministry and remedial action was mooted. We have heard almost nothing of it since.
Frustrated police officers certainly need cheering up, but a more credible line in tough talk from Zuma would outline this kind of systemic solution, rather than singing along with uMshini Wam.
He might point out, too, some more complicated concerns — the role of useless schools, for example, in condemning young men to dangerous idleness. We want a serious crackdown on crime as much as anybody else, but the Constitution, which promises protection of all our rights, must be seen as the enabling framework, not as a hindrance. If it is not, the state itself risks illegality, and the crisis will only deepen.
Busy retirement ahead
It shouldn’t have ended like this, not so soon, and not in this way. Our instinct is to offer a simple valedictory for the four Constitutional Court judges who retired this week: Pius Langa, Kate O’Regan, Yvonne Mokgoro and Albie Sachs were the last of those appointed by Nelson Mandela in 1994, and they have done extraordinary work in shaping our legal dispensation.
Most celebrated, perhaps, will be the decisions that gave life to the consitutional protection of basic and of socioeconomic rights. They outlawed the death penalty in the teeth of a clamour for its return, compelled the government to provide adequate housing, water and sanitation and insisted that gay couples had just as much right to the dignity of marriage as heterosexuals. They also insisted, much more controversially, that the government provide Nevirapine to HIV-positive pregnant mothers.
In other cases, less attention grabbing, but critically important, they developed common law and corrected our leglislators.
It is an opportunity that will never be repeated. So it would be sad under any circumstances to say goodbye to them — the closing of the first Âchapter in the re-establishment of our rule of law.
It is all the more so that we must do so when O’Regan and Mokgoro are so young. Their 15-year terms have ended when each is at the age when judges make it onto the Bench for the first time. Whatever the benefit of term limits, it seems an extraordinary waste that they should have to stand down now. It is tragic, too, that their retirement has been overshadowed by the farcical battle over Judge John Hlophe and his Âaspirations to higher office. Hlophe may have been sidelined for now, but the legacy of the “class of ’94” is far from secure.
With that in mind, we can’t simply sing their praises. We have to lay a task before them: they carry immense authority into retirement. They must use it to help us take forward the constitutional project and to get judicial transformation right. Their work is far from over.