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20 December 2014 06:54 (South Africa)
Opinionista Pierre de Vos

Marikana: Avoidable, unconstitutional… and entirely predictable

  • Pierre de Vos
The Marikana massacre has been called an ‘avoidable’ tragedy. But given the total misunderstanding of Constitutional obligations by senior politicians and police leaders, it seems nothing short of inevitable. Looking at the way police obligations have been understood in the country over the past four years, it’s hardly surprising that we’ve come to this kind of brutality.

Many South Africans are either confused or uninformed about the Constitutional and legal duties placed on the South African Police Service to protect, rather than kill, the citizens of South Africa. Many members of the “law and order” crowd, including a large number of (white) South Africans who usually demonstrate a fierce hatred of the ANC and the government it leads, have emerged as staunch defenders of the actions of the police during the Marikana massacre and, by implication, is demonstrating support for Police Minister Nathi Mthethwa, whose resignation has been called for by opposition parties.  

In support of their contention that the killing of 34 miners by members of the SAPS was justified, they argue that the miners were taking part in an illegal strike and an illegal gathering, that the police were scared because some police officers had been killed in the run-up to the massacre and some miners were brandishing traditional weapons, and that one of the miners had shot at the police and that the police were therefore merely defending themselves. 

Entirely absent from these kinds of wrongheaded arguments is an understanding of the Constitutional and legal framework within which the police are required to operate in a Constitutional state like our own.

Section 199(5) of the Constitution states that the Police “must act, and must teach and require their members to act, in accordance with the Constitution and the law”. The Constitution protects the right to life of everyone – including every criminal suspect and every miner who took part in the events at Marikana last Thursday. The strikers did not forfeit their right to life because two police officers were killed by unidentified individuals in the week leading up to the massacre. Nor did they forfeit their right to life because they were involved in an unlawful strike and/or protest march or because one of the striking miners allegedly shot at the police. 

This principle is underscored by section 13 of the Police Services Act, which states that members of the SAPS must act subject to the Constitution and with due regard to the fundamental rights of every person. The section continues to state that where a police officer is authorised to use force (for example, to defend him- or herself or to help apprehend a dangerous criminal suspect), he or she may use only the minimum force which is reasonable in the circumstances.

The police are not authorised to take the law into their own hands and to punish a group of miners by killing 34 of them because some of the miners might previously have been involved in the killing of a police officer. That would be nothing more than mob justice and would constitute cold-blooded murder. The fact that some of the police officers might have been scared because two of their fellow officers were killed earlier in the week would not, by itself, constitute a legal justification for the killing either. To hold otherwise would be to excuse every scared but trigger-happy police officer who goes on a shooting spree.

Neither would it normally be found to be reasonable to shoot and kill 34 protesters with automatic rifles because one of them had a gun or had shot at the police. It would also normally not be possible to claim that the police used minimum force when it killed 34 protestors with semi-automatic rifles. In the absence of other compelling evidence which demonstrates that the miners posed a grave threat to the lives of police officers, the shooting could not be considered either justifiable or legal. Evidence that such a grave threat existed might yet emerge, but so far no one has provided it, so arguments exonerating the police are not based on factual or legal considerations. 

Those who are so quick to exonerate the police either do not value the lives of those who died, are defending the government and the minister of police for politically expedient reasons, or are animated by an irrational fear of everything that the miners represent.

Questions might well be asked about why so many police officers, as well as members of the public, seem to believe that the police have a right to shoot and kill anyone who threatens them or gets involved in illegal activities. Where is this idea coming from that our police do not have to respect the lives of fellow citizens when the citizens have allegedly broken the law? 

The answer to this question is not blowing in the wind, but a Google search does yield some direction. 

In 2008, then-deputy minister of safety and security, Susan Shabangu (who yesterday made the contradictory claim that she had negotiated with the parties involved in the dispute behind the scenes but that she had never heard of one of the unions involved in it) told an anti-crime rally in Pretoria that police shouldn't hesitate to kill “criminals”. She did not mean that the police should not hesitate to shoot to kill those who have been convicted of a crime by our courts, but rather that the police should not hesitate to shoot and kill individuals who our Constitution presume to be innocent but whom the police officer might believe had committed a crime. 

“You must kill the bastards if they threaten you or the community,” she said. “You must not worry about the regulations. That is my responsibility. Your responsibility is to serve and protect. I want to assure the police station commissioners, policemen and women that they have permission to kill these criminals. I want no warning shots. You have one shot and it must be a kill shot. If you miss, the criminals will go for the kill. They don't miss. We can't take this chance.”

This is the same Shabangu who yesterday warned South Africans to “exercise restraint when it comes to rushing to judgments”, pending the outcome of the judicial inquiry which will be appointed to investigate the massacre. 

In 2009, South Africa’s new top cop, Bheki Cele, pleaded for the law to be changed to allow police to “shoot to kill” so-called criminals (again, suspects who must be presumed innocent until proven guilty) without worrying about “what happens after that”. Speaking to a newspaper, Commissioner Cele said the police needed to match the firepower of criminals and use “deadly force”. Cele complained that criminals were armed with the best high-calibre firearms “to deal with whoever is standing in their way, so... they are ready to shoot”.  On the other hand, police responding to an attack have to “arrest their minds, thinking is this right or is it wrong? Police must think about what is in front of them and do the job, or else they get killed.” 

He received backing for these starling assertions from none other than Nathi Mthethwa, the country’s police minister. “We are tired of waving nice documents like the Constitution and the human rights charter in criminals’ faces,” Mthethwa said. “We are going to meet these thugs head on, and if it means we kill when we shoot, then so be it.”

It is the same Mthethwa who yesterday claimed that the loss of life at Marikana was tragic and regrettable, but that now was not the time for “cheap politicking”. He added that the incident should teach us “as a nation, as a whole, to work doubly hard to prevent the repeat of such events.” As if the nation as a whole had made or condoned inflammatory statements about the need for the police to “shoot the bastards”. As if the nation as whole had insisted that we should ignore the Constitution. As if the nation as a whole gave the order to shoot at protestors with automatic rifles. As if those who stoked the fires of violence and those who actually killed the 34 protestors had absolutely no part to play in this tragedy. 

I might be wrong, but given the bloodthirsty and irresponsible statements made by some politicians and members of the police leadership over the past four years about the need for the police to shoot and kill people who have never been convicted of any crime and must – in terms of our Constitution – be presumed to be innocent, the massacre at Marikana appears not “avoidable and tragic”, not something we as a nation “must work doubly hard” to prevent from happening again, but rather entirely inevitable and predictable. DM

  • Pierre de Vos
Pierre de vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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