Editorial: Fix the police, not our Constitution

For how long are we willing to tinker with constitutional principles, deploy soldiers, call for the reinstatement of the death penalty, resort to mob justice and take short-term but precarious decisions, instead of fixing our police service, overhauling its leadership and repairing the criminal justice system?

We tend to employ stopgap measures to compensate for police incompetence. The most recent example is President Jacob Zuma’s decision to deploy the army to Alexandra and other townships to quell further xenophobic attacks. The deployment was readily welcomed by some, not because they believed it would end this conflict, but because they thought the soldiers would do a better job than the police of stabilising the situation.

At the same time, the deployment invoked dreadful memories of a repressive army occupying black townships in the 1980s, when the army was seen as the apartheid state’s critical weapon of repression. In a democratic South Africa, the military has mostly been deployed domestically for relief-and-rescue missions related to natural disasters. Whenever it was deployed against civilians, it was always to give the police cover and backup in crime hot spots.

The last time the army was deployed to battle it out with civilians in our recent history was disastrous. It was a peacekeeping force that was not sufficiently well organised to deal with the conflict between hostel-dwelling Inkatha Freedom Party supporters and township residents just before the 1994 elections. Scores died, including peacekeepers who accidentally shot each other. The former commander of the National Peacekeeping Force, Gabriel Ramushwana, admitted then that the army was not designed or trained to deal with domestic conflicts.

The operation this week seemed a little excessive. According to some residents, the soldiers and police “declared war” on them. They felt violently threatened. They felt dehumanised when some of them were forced to strip half-naked during a search. If this is true, the army and the police should be reminded loudly that the right to dignity is one of the fundamental rights enshrined in our Constitution and cannot be derogated – not even under a state of emergency.

If the allegations are true, they serve to illustrate the defects in South Africa’s policing. The decision to deploy the army to xenophobia hot spots was a result of weeks of violence in parts of KwaZulu-Natal and Gauteng. The police, as we report in this week’s paper, seemed underprepared and overwhelmed.

By Monday, when it was clear that the situation was still tense and unstable, despite the peace imbizo called by Zulu King Goodwill Zwelithini, the president felt the army was a solution.

Successive governments have resorted to this military solution when they faced the gap created by poor policing. We have seen people meting out mob justice to criminal suspects and venting their frustrations on foreigners. That such vigilantism has come so far is a consequence of police ineptitude.

Some people are so exasperated that they are calling for the return of the death penalty as a way to tackle the unabating crime wave.

Almost a decade ago, when statistics showed crime spiralling out of control, the Thabo Mbeki administration was quick to attempt to violate the constitutional rights of those suspected of being behind the crime – instead of fixing the police. Charles Nqakula, Mbeki’s former safety and security minister, tried unsuccessfully to extend to more than 48 hours the period for which the police could legally detain suspects without having them appear in court. None of these desperate measures would have been necessary if the police were effective.

When Zuma took over the country’s presidency in 2009, he intimated that our Constitution was too soft on criminals, and he militarised the police. The Marikana tragedy exploded just three years later. With the current criminal justice system being dysfunctional, the temptation to tweak the Constitution is even greater. But we should never forget that our Constitution was designed to prevent the state from violating the rights of citizens, and that includes crime suspects. They must be presumed innocent until proven guilty. At the same time, it must be ensured that the guilty do not get away with murder.

The latter objective is only achievable if South Africa has a functional police force, an effective system for prosecution, and an independent judiciary. The combination of these elements will result in a high conviction rate, without the police or other justice officials having to resort to violating the rights of the accused.

But our criminal justice system is in a sad state. As South Africa faces social and political turmoil in the form of crime and xenophobic attacks, the president is busily answering court papers on the matter of the criminal charges against him that were withdrawn in 2009. At the same time, the head of prosecutions is facing an inquiry, his deputy is accused of lying and committing fraud, the police commissioner is under fire (and in a mudslinging match with her predecessor), crime intelligence is decapitated, the head of the unit dealing with organised crime has quit, and the police minister’s absence from the public eye at a difficult time is worrying. The consequences of leadership paralysis, ineffectual policing and a malfunctioning criminal justice system will be felt for decades.

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