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The police ‘punish before they prosecute’ when it comes to public protests

In terms of the 1993 Regulation of Gatherings Act, the police are meant to join section 4 meetings to discuss concerns about a planned gathering or protest. A protest may be prohibited if the police provide credible information on oath that it presents an imminent threat to public safety.

If a protest goes ahead anyway, and threatens to turn violent, the police can call on the crowd to disperse, giving them enough time to do so. If the protesters do not co-operate, the police can disperse them using the degree of force that is necessary. Force must only be escalated if it is necessary to ensure public safety.

Municipal decision-making sets a framework for police actions — in that prohibited protests are more likely to trigger police actions than ones that aren’t — but the police can exercise discretion in how they respond to such collective action.

If a protest does not pose a serious threat to public safety, it should not be prevented, even if the municipality had not been informed about it. The Constitution protects people’s right to assemble.

Failure to notify is not, in itself, sufficient reason to break up a protest if it is peaceful and unarmed.

Yet recent events suggest that there is a yawning gap between this ideal and the reality.

It seems fair to say that the police are suffering an unprecedented crisis of legitimacy because of their violence against civilians, including protesters, with the single biggest act of police violence having taken place in Marikana in 2012.

The South African Police Service (SAPS) is a highly centralised organisation relative to police forces in more federal political systems. Lines of accountability emphasise upward accountability to the police leadership. But, if the leadership is not accountable, the scope for abusive policing is increased. Centralised authority also increases the potential for manipulation by means of the political control of senior police leadership.

The failure of community policing and its de facto replacement by more authoritarian models such as paramilitary policing and intelligence-led policing have reduced police accountability to the communities they claim to serve.

The police service is clearly a stressed institution. Considering the high levels of crime in South Africa, the ratio of police to population is on the lower end of the global scale. Those who can afford it opt for private security, which lacks accountability.

Violence against the police has also been a persistent problem, reducing morale and driving up violent responses. The police have claimed to be under siege from violent protesters but, at the same time, the police have proved to be far from impartial in responding to these protests. 

For instance, in terms of the struggles against the unilateral reincorporation of towns into one province from another, certain patterns emerged in how the police responded in the immediate aftermath of President Jacob Zuma’s post-Polokwane electoral victory in 2009.

In the case of the struggle involving Matatiele, which had been taken from KwaZulu-Natal and incorporated into the Eastern Cape by the Thabo Mbeki administration, protest policing was relatively tolerant because the police officers involved were often drawn from the aggrieved community and understood the issues that gave rise to the protests.

Furthermore, the police were integrated into community policing forums and many were also unionised in the Police and Prisons Civil Rights Union, a Cosatu affiliate. Given that South African Communist Party members, who were in an alliance with labour federation Cosatu, led many of the protests, these structures created common platforms that encouraged more consensual forms of policing.

Eastern Cape SACP member and Cosatu activist Zamecibo Mjobe said: “Before [Polokwane] they [the Eastern Cape police] were harassing people, and as they were beating ordinary people, like hawkers, so the police took sides. We are now integrating them … and cases are fading away day by day.”

Yet, in the case of another anti-incorporation struggle, in Moutse, which was incorporated into Limpopo from Mpumalanga, more confrontational policing dynamics prevailed in spite of the struggle being led by SACP activists. Some of the protests became disruptive, provoking a more violent police response.

Activist Seun Mogotji said: “The police punish before they prosecute. This is becoming a police state. [Arrests] are mostly about victimisation. The forms of arrest used are meant to silence most of the people. Bail is denied even though there is no good reason to do so. They may take you to a police station far away from home. Senior officers of SAPS are influencing arrests, and politicians are directing arrests. They are misusing their power.”

The policing of this particular struggle was orchestrated from Limpopo, and some officers sent to deal with it were even from Thohoyandou, so they lacked empathy for the community’s plight. Furthermore, the ANC alliance structures were barely functional in the area, which meant the channels of communication and negotiation did not exist there.

Unsurprisingly, activists who led this struggle broke with the ANC alliance and formed their own political party, the Mpumalanga Party, devoted to the incorporation of Moutse back into Mpumalanga. Although the ideological content of the party remained unclear, the fact that its members left the ANC showed that they were open to political alternatives.

In spite of how the Zuma presidency has been portrayed as a pro-poor people’s presidency, police violence against protests has escalated.

In 2011, activist Andries Tatane was killed by a police rubber bullet when he was fired on at close range during a protest in Ficksburg in the Free State. The police accused of Tatane’s murder were acquitted in spite of the fact that the shooting was caught on camera. The police have consistently blamed protester violence for their reactions, refusing to admit wrongdoing publicly.

In September 2014, they made a passionate plea to Parliament for more resources for public-order work, arguing that there was an “upsurge in violent protests” and consequently an “upsurge against state authority”. They requested an extra R3.3-billion to double the number of public-order police and recruit more intelligence gatherers, suggesting a shift towards intelligence-led policing.

In this, they took their cue from Zuma’s 2013 State of the Nation Address, which required the justice, crime prevention and security cluster of ministries to investigate and prosecute violent protests.

Although the finance minister turned down this request, it did provide clues to the police’s attitude to protests as being threats to national security.

The police also saw a larger role for National Joint Operation Centres, set up by the National Joint Operational and Intelligence Structure (Natjoints) and bringing together the SAPS, the South African National Defence Force, the metro police, the intelligence agencies and several representatives of various government departments.

In September 2013, Natjoints announced that it was closely monitoring all strike and protest action, and that it had established a “stability committee” involving public and private stakeholders.

According to the police, the committee receives priorities from the national intelligence co-ordinating committee, which identified labour issues, political intolerance, service delivery protests and anti-foreigner sentiment as priority areas.

The police also wished to increase the weaponry available to public-order policing personnel, including an armoured fleet of 200 Nyalas (the infantry mobility vehicle), pyrotechnic weaponry, including teargas and stun grenades, water cannons and video cameras and other surveillance equipment. Also on the list are long-range acoustic devices, known as sound cannons, which emit sounds that are painful to the human ear, can cause deafness and can also disrupt a person’s balance. They were used initially by the United States military in its occupation of Iraq.

In making these arguments, the police pointed to the spike in violent service delivery protests in the 2013-2014 financial year. But, over a longer term, their own data called these claims into question. They record peaceful and unrest-related “crowd-management incidents” on Iris, the incident registration information system database, the distinction between “peaceful” and “unrest-related” incidents being whether the incident triggered the opening of a crime docket in terms of section 12 of the Regulation of Gatherings Act.

Although the police refer to unrest-related incidents as those where violence erupted, this does not have to be the case. Section 12 criminalises the holding of gatherings and protests without notice having been given, but introduces the defence of spontaneous gathering. Hence, if a protest takes place without notice but is premeditated, even if it is peaceful, it can be classified as a crime, triggering the opening of a docket.

The designation “unrest-related crowd-management incident” is thus not confined to violent protests but is a broader category.

Jane Duncan is a professor in the department of journalism, film and TV at the University of Johannesburg. This is an edited extract from Protest Nation: The Right to Protest in South Africa, published by UKZN Press.

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