Siyasanga Gijana was fetching water near her home in the Ramaphosa informal settlement in Philippi, Cape Town on 23 April 2020 when she was shot in the face. The police allegedly fired rubber bullets out of their vehicle in her direction. She lost her eye.
The Covid-19 crisis that has unfolded in South Africa, a country of extreme inequality, requires responsible leadership and policing that is consistent with human rights law, with police held accountable for any unlawful use of force. This has not been in evidence during the imposition of a varied set of lockdown regulations starting in March 2020. The cumulative failure to create an environment in which police are fully accountable for the use of force has exposed many individuals to the abusive and sometimes fatal misuse of force by the police.
From the beginning of the initial hard lockdown, police, including municipal police forces, were deployed, initially at a large scale alongside members of the military. The police were armed with a range of weapons: in particular, shotguns and rubber bullets, police-standard 9mm pistols capable of firing lethal rounds, stun grenades and tear gas. For a period, some police were reportedly armed with sjamboks, claiming that they were following orders from “the top”. The use of sjamboks is unlawful under South African constitutional and international human rights law. It is also not included as an authorised weapon in the South African Police Service (SAPS) national instruction 4 of 2014.
By June, the minister of police, Bheki Cele, acknowledged in Parliament that “49 cases of police brutality” had been reported since the start of the lockdown, but added that the police had the right in law to defend themselves, using “proportional force”. In May 2020, a month earlier, the Independent Police Investigative Directorate reported much higher figures including 10 deaths, 79 complaints of discharging of an official firearm and 280 assaults.
In a context of growing public concern about the levels of police brutality, the minister of police released the SAPS amendment bill for public comment in October 2020. Comments on the bill will be reviewed by the Civilian Secretariat for Police Service before being debated in parliament. Its stated purposes appear to be primarily structural and organisational reforms within and between the police services at national, provincial and municipal levels, including affecting public order policing, and the roles and division of responsibilities between the minister and the national commissioner. The draft amendments also seek to align its provisions relating to the use of force and the right to assembly with the constitution and with constitutional court rulings, including Mlungwana v the state.
Legal and parliamentary processes are important to address the police’s reliance on particular weapons for crowd management and should also guide their training, tactics and the equipment that they use. There is an urgent need to address these issues and to review the “less lethal weapons” upon which public order police rely. These include the double-ball rounds, fired by 12-gauge pump action shotguns, which are indiscriminate and inaccurate, and should be prohibited.
A recent media report indicated that a tender for double-ball shotgun cartridges had been awarded in July. It was alleged that the selected bidder’s quote was five times higher than another, and was awarded the tender for a three-year period. Despite a context of increasing global concerns over policing and the safety of weapons used to manage protests, the independent Omega Research Foundation indicated that the weapons bidder had no traceable weapons-manufacturing track record.
Although the tender has now been cancelled due to improper procurement procedures and inflated costs, the tender process appears to have been made without any public consultation on the suitability of the double-ball round or on its accuracy or safety record. These risks are compounded by inadequate and inconsistent post-operations accountability for the use of force, lesson learning or referral for disciplinary proceedings from specific incidents involving the misuse of force.
The United Nations Office of the High Commissioner for Human Rights (OHCHR) re-confirmed this year its strictures on the use of force and certain weapons, in its Human Rights Guidance on Less-Lethal Weapons in Law Enforcement. The OHCHR confirmed that many kinetic impact projectiles (KIPs), such as rubber bullets discharged from shotguns, are inaccurate and indiscriminate, particularly when multiple projectiles are fired simultaneously from the same weapon or when they are fired towards the ground. There is no control over the direction of the bullets fired, even where the police officer may intend to halt the actions of a person posing a threat to the safety of the officer or others, thereby putting unintended targets at risk whenever this weapon is fired.
The UN guidelines stress the importance of the testing and legal review of any weapon used in policing, including research on existing patterns of use. The cancelled three-year tender of double-ball cartridges appears not to have gone through any such process.
The risks inherent in the use of rubber bullets, and other similar types of projectiles, have been confirmed in various public health and medical research studies around the world, such as a 2017 multi-country study on the pattern of injuries and deaths caused by rubber bullets and other types of KIPs. The study concluded that 1 984 victims suffered severe injuries including permanent disabilities and loss of vision, or had died.
Recent events in Chile also highlight these risks. In the wake of large-scale protests over socioeconomic rights in late 2019, a UN human rights investigative mission reviewed the evidence from three national-level treatment facilities of just over 900 “ocular trauma cases”, including double blindings. The injuries were inflicted by the security forces using multi-ball KIPs during the protests. The OHCHR’s findings cited the minister of justice, who condemned the “unnecessary and disproportionate use” of the “anti‑riot shotguns” and the high number of injuries to eyes and faces, specifically caused by the improper and indiscriminate use of these weapons.
Alarmed, the Chilean legislature is currently considering a draft law to prohibit the security forces from using ammunition in crowd control policing that “fires more than one projectile in a single shot”. The draft law also calls for greater transparency in testing for the suitability of weapons to prevent a repetition of the above harmful outcomes, a call that is of key relevance to South Africa.
From primary and secondary research, the Omega Research Foundation has concluded that multi-ball rubber bullets, including the double-ball cartridges fired from the 12-gauge shotguns in South Africa, should be prohibited. They are inaccurate and indiscriminate when fired and do not meet the UN guidelines.
SAPS national instruction 4 of 2014 requires the police to use “approved rubber rounds” for crowd dispersal “only in extreme circumstances”. The pattern of misuse and the inherent risks from the use of rubber bullets was evident in the fatal shooting of Andries Tatane in 2011. It was also evident in cases documented in the Socio-Economic Rights Institute’s (SERI) A Double Harm report, concerning incidents of the use of force against student protestors at the University of the Witwatersrand in 2016, where the police fired 2 624 rubber bullets. They caused serious injuries when they fired at “close” or “contact-range”, at unarmed students, humanitarian workers and fleeing protestors who posed no threat at the time.
Much like in Chile, SAPS’s reckless shooting also caused facial and severe eye injuries. At least one person, a worker from a nearby area who was passing by during a police shooting in Braamfontein near Wits, lost the sight in one of his eyes.
Given the risks inherent in this weapon, coupled with the pattern of reckless deployment, which is rarely ever accounted for by SAPS, it is no surprise that during the Covid-19 nationwide lockdown, many people apparently suspected by police to be in violation of lockdown regulations suffered devastating injuries from this and other weapons in a range of circumstances including during protests, forced evictions and other lockdown-related incidents.
The problems with policing in South Africa are multi-layered and complex. Chief among them is the affinity for the excessive use of force by SAPS officers, which is reflected across all law enforcement agencies as well as private security agencies. But this is worsened by a failure of police and political leadership to ensure that individual officers are held accountable for any misuse of force, and that any weapons used minimise the risk of injuries in the context of public order policing.
Dr Mary Rayner is a research associate at the University of London, Thato Masiangoako is a researcher at the Socio-Economic Rights Institute and Neil Corney a research associate at Omega Research Foundation. Mary Rayner and Thato Masiangoako are members of the Anti-Repression Working Group of the C-19 People’s Coalition.