Wayne Ncube and Nadia Jeiroudi
While the brute force employed against Bulelani Qolani, a Khayelitsha resident, generated outrage across social media, such an episode is sadly a routine demonstration of police practice in South Africa today.
Covid-19 has illuminated a vast scope of flaws ranging from healthcare to wealth disparities, but perhaps the most flagrant is the interlinkage between deeply entrenched racial injustices and police brutality toward Black communities. Analogous to the death of George Floyd in the United States, the murder of Collins Khosa, who was beaten to death in his Alexandra home by SANDF members, during the Covid-19 lockdown restrictions in South Africa has shone a spotlight once again on our own plight with problematic policing practices. Instances of discriminatory and violent policing have plagued both countries for well over a century.
In this relatively rare moment of global attention to the issue, it is critical to reflect on the nature of law enforcement in black communities and potential reforms.
George Floyd’s death triggered a global uproar resulting in weeks of protests and activism demanding racial justice and law enforcement reform. In many countries, this has resulted in the toppling of statues that commemorate white supremacy, with characteristics reminiscent of slavery, colonisation, and class oppression. Such activism has ignited an examination of the way each country perpetuates racial discrimination. In South Africa, part of that introspection has involved analysing the manner in which policing has been employed as a tool to preserve race and class oppression that was embedded in the national fabric during the apartheid era. The dire similarities between the United States and South Africa and their desperate need in both places to combat racism, discrimination, xenophobia and hatred are largely rooted in the historic, oppressive role that the police play in both countries and the foundation of their law enforcement systems.
In the United States, there are clear links between the slave patrols empowered to enforce slavery laws and the development of law enforcement practices more generally. In southern states, the rationale for the creation of a police force was to preserve the system of enslaving black bodies as a source of free economic labour. Even as northern states abolished slavery, the 1850 Fugitive Slave Act encouraged police to capture and return those that escaped enslavement in the south, providing compensation to those officers that complied. The emancipation of the enslaved population was thus conditional on a myriad concessions for slave owners.
Even the abolition of slavery through the 13th Amendment to the US Constitution was not unequivocal: this includes an exception, which paved the way for over a century of subsequent discriminatory policing practices and approaches to incarceration, permitting slavery and forced servitude as a punishment for a crime. Today, African-Americans are five times more likely to be incarcerated than their white counterparts. This has been largely carried out through discriminatory law enforcement practices such as the controversial stop-and-frisk policy in New York City. Under this policy in 2019, 59% of the individuals stopped by police were black, despite comprising only 15% of the population. And studies show that, all else being equal, longer and harsher sentences are given for black defendants on trial.
Akin to the American experience, the notion of white supremacy fundamentally shaped laws in apartheid South Africa: its police force was the primary tool in preserving a deeply prejudiced system of government. These laws required active policing of black bodies as a means to preserve law and order for the rest of the population. Indeed, over 50 individual pieces of discriminatory legislation were passed during this time, which facilitated the backlash against civil unrest elicited by grievances of the oppressed. The 1960 Sharpeville Massacre, which resulted in the killing of 70 individuals at the hands of police as well as 18,000 arrests, resonates with present law enforcement in its interactions with black protesters.
While legislative reform has taken place since the dawn of South Africa’s constitutional democracy to dismantle previously racist legal frameworks, our police system seems to rely on a muscle memory of apartheid-era practices. South Africa is now renowned for its progressive Constitution. Section 13 of the founding document of our democracy includes no exception to the abolishment of slavery, while the Criminal Procedure Act places prescriptive limits on the use of force on civilians. But flaws in policing practices are rooted in a sustained racial bias, which persists no matter how just and admirable our legal framework is today.
The reality in South Africa today is that law enforcement implements different tactics in different suburbs: neighbourhoods with black-majority populations typically experience ongoing brutality at the hands of police, as in the many cases of forceful evictions and mass arrest sprees that seek out black non-nationals without identification, demanded on the spot. Selling goods on the street, or “loitering” in these areas seem cause for a heavy-handed police response. To the extent police are present in affluent neighbourhoods, it is for the purpose of “protecting” those communities. A resident standing outside a block of shops or restaurants would not be deemed “loitering” in these areas, and failure to carry identification is rarely cause for arrest.
This phenomenon has been exacerbated during the Covid-19 lockdown that began in March 2020. Well over 120,000 people were arrested for contravening regulations in less than three months. Images surfaced of law enforcement harassing, assaulting, and shooting in black communities, where much “enforcement” of the lockdown really took place. This reflects an ugly pattern, even in the context of modern-day South Africa. During the 2015 #FeesMustFall protests, black students were also met with unlawful tactics by police. Discrepancies in how black students were treated compared with white students was so stark that the latter had to stand as shields to protect their black peers, a tacit illustration of how law enforcement inherently values certain bodies, and lives, over others.
One way in which law enforcement practices have manifested themselves deleteriously towards black communities has been through the City of Cape Town’s active and repeated attempts to evict residents and demolish homes within informal settlements – never mind the global pandemic and South Africa’s skyrocketing rates of infection. The unlawful seizure of Mr Qolani from his shack while naked and the subsequent destruction of his home during the winter season illuminates such cruel policing, and betrays a total lack of empathy for poor, black communities.
Particularly troubling were the mayor’s comments that described Mr Qolani as a “land invader”, blaming him for the indignity suffered by claiming he may have been purposefully naked. This rhetoric fundamentally challenges the dignity of low-income individuals. That the mayor shamed the victim accentuates how access to justice cannot be divorced from how cities govern themselves, and from what their leaders say in public engagements.
Indeed, as the Constitutional Court in 2011 affirmed, the term “land invader” “detracts from the humanity of the occupiers… and comes close to criminalising the[m].”
In April, Cape Town proposed an amendment to a by-law that would permit law enforcement to conduct warrantless searches of individuals, vehicles and homes and allow for the forced removal and displacement of homeless people. Such regulations reinforce segregation, and function as pretext to target vulnerable segments of the population.
Across the world, the principle grievance that has kindled current protests is the lack of immediate accountability for those responsible for such vicious tactics, which of course extend to murder at the hands of law enforcement itself.
In the US, the storming of police officers into the home of Breonna Taylor and opening of fire on her while she was sleeping in the state of Kentucky has sparked the #SayHerName campaign in an effort to hold the officers accountable. They remain without criminal charges, much like the 99% of US police officers involved in police killings in 2019.
Similarly, the suspension of some officers involved in the killing of Collins Khosa here in South Africa was only initiated after the family was forced to obtain a High Court order to initiate an investigation. Despite the court having ample evidence and eyewitnesses to the brutal attack on Khosa, the State still opposed any accountability for the officers in its response to the family’s court application.
A key shortcoming in achieving accountability is that law enforcement can effectively break the law and kill with impunity. Qualified immunity of police officers from civil suits is one such tool that enables this trend to endure. In South Africa, the Minister of Police and adjoined politicians are clear with their “shoot to kill” rhetoric, creating a chasm between the manner of policing and what the law permits. This is why guidelines regarding violent incitement are critical. With Mr Khosa’s case, the court-mandated investigation report of the incident was based solely on the perspective of the army, the accused party, notwithstanding eight detailed affidavits from witnesses that attested to exactly what happened.
What has equipped law enforcement with such latitude? The answers are myriad. First, decades of overfunding security forces by the government and private companies profiting from such ventures are a key contributor. Successful propaganda campaigns building a positive image of the police have come about through corporate branding and television shows that portray them as protagonists, while vilifying black protesters and bodies, rather than reflecting their systemic brutalisation. This renders accountability difficult because individuals comprising a grand jury in America hold a more favourable perception of police than they do of the black victim; and in South Africa, the institutions that control accountability are the same ones that victim-shame people like Collins Khosa and Bulelani Qolani.
In order to truly improve accountability, avenues to obtaining accountability must be divorced from the authority that enables law enforcement to commit heinous acts. Individuals who authorise their actions should also be held liable, whether it be the mayors who incite or tacitly allow such violence, or direct superiors who command law enforcement to target vulnerable groups and create the climate for the erosion of their dignity. Such accountability must go further for politicians that facilitate unlawful conduct by the police while simultaneously dehumanising marginalised communities.
We have already witnessed a positive shift during Level 3 of South Africa’s Covid-19 lockdown regulations, which have spelled out de-escalation and compliance to be used in implementing the law as opposed to immediate arrest – although it took a court case brought by Mr Khosa’s family to get us there. Likewise, the process of repealing discriminatory laws that enable the targeting of poor communities must continue. This includes by-laws that disproportionately affect lower-income communities, which create the predicate for hostile engagement between law enforcement and predominantly black individuals.
On 29 June 2020, the High Court in Johannesburg declared section 13 (7) (c) of the South African Police Services Act 68 of 1995 constitutionally invalid insofar as it authorised warrantless raids into homes and vehicles, describing it as cruel, degrading, invasive and ostensibly directed at harassing poor communities. An important step in the right direction to be sure, but the path towards true accountability and non-discriminatory policing practices is a long one.
Community policing must have a consistent rationale in all neighbourhoods, that of protecting people over criminalising black bodies. The first steps to achieving this are establishing clear conduct requirements and consequences for law enforcement and equipping independent oversight bodies such as IPID with the resources they need to fulfil their mandate. Concrete reforms that seek to address police brutality cannot be disconnected from the racial and socioeconomic inequalities that permeates society. Admittedly, these instances are not unique to one hemisphere nor are they haphazard tragedies instigated by those never meant for the job. Accordingly, addressing inequality through an inclusive approach must be at the forefront of our fight toward justice.
It is time to leave behind once and for all the policing practices rooted in our respective histories of prejudice and discrimination. DM/MC
Wayne Ncube is the Head of Strategic Litigation Programme and the Acting Deputy Director at Lawyers for Human Rights;
Nadia Jeiroudi is a Legal Intern at Lawyers for Human Rights and a law student at the University of Michigan law School
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