First published by ISS Today

Fundamental rights such as the right to life and dignity are protected in South Africa’s Constitution as “entirely non-derogable”. This means they cannot, under any circumstances, be infringed. The police must enforce the law but not at the expense of these basic rights.

Notwithstanding this, the first few weeks of South Africa’s Covid-19 lockdown saw some of the worst incidents of abusive police conduct and public humiliation of people who had allegedly violated regulations. Numerous videos on social media showed police and soldiers kicking, slapping and whipping alleged transgressors and forcing them to perform demeaning actions while laughing and making fun of them.

Although most victims of police abuse generally don’t open cases, reports of such violations increased during early lockdown. In a briefing on 8 May to Parliament, the Independent Police Investigative Directorate (IPID) reported a 32% increase in complaints against the police during the first 41 days of lockdown compared to the same period last year.

During this time, IPID received 828 complaints against police, of which 376 (45.4%) could be directly linked to lockdown operations. Of these, 280 (74.4%) were for alleged assault and 10 (2.6%) for deaths as a result of police action.

Considering IPID’s track record, it’s doubtful that these complaints will lead to any serious consequences for most of the accused. Of the over 42 000 cases opened against police with IPID between 2012 and 2019, only 1% resulted in a conviction and 4% in disciplinary action. This means that 95% of the time, police officers experienced no sanction for alleged misconduct.

The South African Police Service’s (SAPS) own records also show a marked decrease in the number of police officials facing sanction for misconduct. Over the same period, the number of disciplinary hearings held against police decreased by 66% from 5 540 to 1 888 cases. The number of dismissals as a result of misconduct dropped by 56%.

It appears that during the early weeks of lockdown some officers thought a state of disaster allowed them more powers than it does. Or did they simply believe there was little risk of being held accountable if they acted unlawfully? Why would they think this? And why do some police, during a state of disaster, act as if citizens are no longer entitled to basic rights?

This inclination to openly flout the rule of law and internal controls was also witnessed in many other parts of the world during Covid-19 lockdowns. The United Nations High Commissioner for Human Rights in April identified at least 15 countries where the rule of law was flouted by security forces, including South Africa.

International comparisons of policing are notoriously difficult because different historical, political, social, economic and cultural factors influence policing, making assessments difficult. But South Africa has a renowned human rights-based constitution unlike many other countries. So how did it end up on this list? Why do its police so frequently flout the law?

The answer probably lies in poor supervision and the general absence of accountability for police misconduct. Police agencies worldwide tend towards top-down decision making characterised by an adherence to following orders.

This requires strict supervision (command and control, in South African terminology) to ensure that orders are carried out efficiently and effectively. The Institute for Security Studies drew attention to this in April at the height of the lockdown as crucial to avoiding the type of abusive policing that was taking place.

In South Africa command and control during joint police-military operations has a well-established history and is stipulated clearly in every written joint operational instruction, signed by a general on each side. Responsibility for control of South African National Defence Force members and police lies with their respective commanders. Although coordination was done by the SAPS’s Operational Command Centre, responsibility for direct command and control remained with the respective commanders.

Strict command and control may not always be possible, for example during routine patrols or police investigations where one or two police officials are alone for hours at a time. But it’s certainly possible where groups of police or soldiers are deployed to specific locations for specific operations.

The absence of commanders, especially officers, was notable in most of the videos that circulated during lockdown. Even if they were present, they failed to intervene when basic rights were clearly infringed. And to the extent that command and control fails at lower levels, responsibility to take action shifts upward in the ranks. In the case of the SAPS, it ends with the national police commissioner.

The many examples of unlawful use of force by the police and the military raise suspicions that this behaviour was encouraged by the tone and content of senior officials’ briefings. The High Court in a 15 May 2020 judgment expressed concern with the tone and language of the police and defence and military veterans ministers during early lockdown. The court found they used language that “appeared to defend and downplay if not encourage the use of force”.

The influence of speeches or operational directions doesn’t excuse the conduct of members who act in violation of citizens’ constitutional rights. The High Court in Uganda, for example, held the offending police personally liable for rights abuses. Although not directly related to lockdown policing, Judge Margaret Mutonyi warned that: “Any officer who violates the rights of citizens on orders from above… does so at his own peril.”

Of course, this peril only exists if the leaders of law enforcement agencies hold their officers accountable for breaking the law. In South Africa, this is rarely the case. DM

Johan Burger, Consultant, Justice and Violence Prevention, ISS Pretoria.