South African democracy: the beginning of the end?

An instinctive response to  the killing of 34 strikers by the police on August 16 is that the event may herald  the end of state tolerance of dissent. Along with the 34 the assumption that state violence will not be lightly used to suppress opposition died.  Although much public debate on the reasons for the incident followed  the incident these discourses centered on explanations for the miners militancy or rationales for the polices' violence. The first perspective tended  to "justify"  the  strikers actions in terms of their personal circumstances or on rivalry between competing trade unions.

The miserable social conditions that allegedly underpins the strikers militancy broadly reflects what happens in areas where the local economy is collapsing. Declining service levels, increasing unemployment, income supplementation through prostitution, illicit brewing, alcohol sales, crime etc. now typify the areas surrounding many platinum mines like Lonmin.  These difficult circumstances contribute to miners militancy and to the ability of a upstart union to organise industrial action under the nose of a trade union that has long dominated the industry. The arguments that focus on the impact of social conditions are undermined by the clear focus the miners had on remuneration and by the fact that the strikers are probably better paid than those who shot them. 

While the social conditions may have contributed to discrediting the established National Union of Mineworkers (NUM) they do not offer insight into why the police played a central role in the rivalry.

Although NUM has long been established as the main union representing underground workers at Lonmin the strikes were organized by a fledgling rival AMCU. Clearly the dominance of the ANC-aligned National Union of Mineworkers (NUM) was challenged by the strike and some pundits viewed the  heavy-handed police action as state support for their embattled political ally.

Much public debate focused on the militancy of the miners and the threat they posed to the police and other miners. It is repeatedly pointed out that by the time the strikers stormed off the hillock on which they had gathered ten people (including two police officers) had already been murdered in the conflict. It is from his vantage point that most discussions around the appropriateness of the police response proceeds. This discourse then revolved around assessments of the threat posed by the strikers, the ability of the police to protect themselves and others  etc.

 However a central ingredient is missed in all these debates. By the time the strikers were driven from the hillock by police teargas the order to use lethal force (sharp ammunition)  had already been issued. When the strikers stormed off the hillock towards  the police the SAPS had already  dispensed with crowd control control formations  and non-lethal gear. The police has already demobilised the public-order police units in favour of deploying the elite National Intervention Unit (NIU). The NIU is a unit tasked with dealing with high risk conflict situations. The shields, dogs, batons, perimeter control mechanisms that are central to containing violent situations had been withdrawn in favour of a large, highly trained force armed only with lethal weapons.

Furthermore the police were deployed in a pattern that ensured that the strikers could not but run towards them if they were to escape the teargas lobbed at them. When they stormed off the hillock they strikers could not do anything but run towards the police who, in turn, we're unable to respond with anything other than their automatic weapons primed with sharp rounds.  And fire the police did - until all the strikers were down. The strikers were not given an opportunity to surrender or escape.

In other words points about police preparedness, their level of training, the threat the strikers posed etc. are moot - the die had been cast before the first volleys of teargas were lobbed at the hill.

Authority to use sharps rounds can only be issued by the ranking SAPS officer - in this situation this was the recently appointed commissioner Phiyega. The resultant massacre would, on the face of it, support  calls for police commissioners to be appointed from within police ranks. Perhaps a commissioner more familiar with crowd control and the volatile situations may have prevented the biggest mass ace in South Africa since Sharpeville. By intimation it was the commissioners inexperience that caused the massacre. However this perspective is undermined by the explanations that followed the incident. The day's events were followed by a sanctimonious blathering about the danger the strikers posed to others and how they were belligerent and superstitious they were. The subtext of these explanations was that the strikers got what they deserved. The fact that there were no police casualties on the day of the  massacre suggests that the magnitude of the threat posed by the strikers was probably exaggerated.

However an explanation is still needed as to why the NIU had been deployed and the non-lethal measures withdrawn. Was this, for example, an attempt to neutralise a militant rival to the established union? Such explanations miss a key dimension to the conflict - the close alignment between Lonmin and the upper echelons of the ruling party. For example in its former guise as "Lonrho", Lonmin reputedly bankrolled several of the leading ANC families both while they were in exile and on their return to South Africa in the mid 1990s.  Currently ANC heavyweight Cryril Ramaphosa is a (non-executive) director of Lonmin. It was also Lonmin that stood to benefit most from the ending of the strike. The platinum sector is going through a crisis with falling PGM prices, greatly reduced demand for their product as well as rapidly increasing costs structure. Of particular importance is the cost of electricity used by the mines and associated processors. These factors ensure that not only could the mine not accede to the strikers demands they could not afford to cover running costs while a small component of the total workforce  halted production.  Only about ten percent of the Lonmin workforce joined the strike yet those 3 000 rock-drillers were able to stop production.

Clearly Lonmin stood to benefit most from the collapse of the strike than anybody.  The events of the day represent nothing more sophisticated than the state acting in the interests of big capital and the ruling party. Unless the commission of inquiry is able to provide a more convincing account as to why non-lethal force was withdrawn we really do need to ask whether or not this is the end of the tolerance of dissent required of a functioning democracy.

SA police, the media and defeating the ends of justice

Media attention has recently been focussed on proposals to exert greater control over it. The proposals include a “media tribunal” and the new Protection of Information bill. In contrast to this concern government agents have defended the proposals as necessary for state security and fairness . Chief spokesman Themba Maseko recently declared that "there is no intention or plan to muzzle the media in any shape or form”, However with attention directed on the explicit attempts to control the “fourth estate” media representative have seemingly been blind to more in insidious moves by the state.

These moves include using existing legislation to achieve the effects envisaged, for example, by the new Protection of Information bill. This bill seeks to criminalise journalists for being in possession of “sensitive” documents that may have been leaked to them. However the recent arrest of Sunday Times journalist Mzilikazi Wa Afrika for, it seems, being in possession of a “fraudulent letter of resignation” suggests that the SA Police Force is already treating the mere possession of sensitive documents as criminal. The initial charges against Afrika were “fraud” and “defeating the ends of justice”.

Although the charge of “defeating the ends of justice” was later dropped in favour of one of “utterance” the fact that this charge was used at all is of concern. “Defeating the ends of justice” is a somewhat vague charge relating to efforts to subvert the judicial process by intimidating witnesses or destroying evidence. If media coverage is anything to go by until recently those charged with the offence were invariably police staff. Examples include Jackie Selebi, the station commissioner who tampered with the drunk driving evidence against Tony Yengeni, former crime intelligence boss Mulangi Mphego and the then head of the Scorpions Gerrie Nel. By contrast it is difficult to find, prior to the appointment of Bheki Cele, reference to the charge being lodged against people outside of the criminal justice system.

In a dramatic departure from this tradition this law is increasingly being used against journalists. In the past two months at least two journalists have been arrested and brought to court for “defeating the ends of justice”. The most recent instance is that of Afrika. In the previous month english journalist Simon Wright faced the charge. The charges against Wright stem from his cloistering of soccer fan Pavlos Joseph in a hotel. During the world cup Josephs entered the English football teams' dressing room to reprimand them for their poor performance. Wright, in his enthusiasm for securing an exclusive interview, booked Josephs into a hotel under a false name. This gave rise to the accusation of him attempting thwart justice from prevailing in Josephs' case. In these instances the veracity the “defeating the ends of justice” charge was justified largely by the vagueness of the allegation. The severity of the charge was aggravated by SAPS intimating, in both instances, that the offences constituted part of a wider conspiracy. The alleged conspiracy, coupled to the vagueness of the charge, invited wild speculation as to what the actual misdeed was.

In court the merits of the “defeating the ends of justice” charges were illustrated by the rapidity with which they were dismissed. The dropping of this charge reflect, on the one hand, the historical difficulty in securing such a conviciton – as was demonstrated in the cases against Selebi , Nel and Mphego. On the other hand the message to journalists remains clear - the police are increasingly prepared to use this charge against them precisely because of the opportunities afforded by its vagueness.

The common theme in both these cases is that the journalists had recently embarrassed the SAPS. Afrika had just accused police head Beki Cele of signing a R500-million lease without observing the required procedures. Wright had pointed out the ease with which a fan could wander into a key area secured by the SAPS. Could it be that the arrests were to punish this behaviour rather than any overt criminal act?

In a short period “defeating the ends of justice” has come to be associated less with tampering with evidence or bribing witnesses and more with journalists publishing the true face of the police.

The extent to which the police hereby undermine the fourth estate is the extent to which they may not need the full measure of the Protection of Information bill. What their action does show is that, assurance that "there is no intention or plan to muzzle the media in any shape or form” aside, the state seeks to cow the media irrespective of whether or not the Protection of Information bill is passed in its current form. Those who view the proponents of the protection of information bill as naïve but well intentioned people operating a bit out of their depth should wake up. In this one regard the writing (on the wall) is getting clearer.

Crime stats and KPIs

As evidence that an increasing number of police stations have manipulated their crime statistics comes to light the reputation of SAPS is increasingly undermined. Police station's reluctance to ensure that all crimes were recorded first became evident shortly after the lifting of the moratorium on crime statistics some years ago. Allegedly some victims were then discouraged from reporting crimes by being incovenienced. Complainants were then, for example, told to return at a later date because the required forms were not available. These incoveniences have seemingly escalated to far more blatant acts of fraud and deception in which documents were systematically misplaced or destroyed. Sources within the SAPS indicate that up to seventy percent of stations are suspected of "manipulating" their crime statistics.

Obviously every such report casts further doubt on the veracity of the official crime statistics. However the real culprit in the saga are not the police stations or officers that have zealously (albeit fraudulently) attempted to show that crime rates are declining. Responsibility for the situation rests squarely on the powers that have decided that the number of crimes reported in a precinct reflects the performance of that station. For example, police stations are currently expected to show a seven to ten percent reduction in the number of serious crimes reported each year. Failure to meet this target reflects poorly on the performance of the station and impacts negatively on the promotion prospects of members, their bonuses and even their professional standing among their peers.

Unfortunately the primary determinants of crime levels are social, economic, cultural or even moral. The police are unable to systematically change any of these determinants and thus cannot determine the number of crimes that take place within their precincts. Holding the stations to account when the “performance” targets are not met is a bit like holding them to account for rainfall levels. Neither the amount of rain that fell nor the number of murders, serious assaults, rapes etc. can be taken to reflect on station performance. Using the number of crimes reported as a measure of the efficacy of the station invites members to change that one factor they do have control of – the number of offences recorded. The police are given an incentive to discourage victims from reporting crimes.

Once a complaint is lodged the police now have an incentive not to record the allegation on the CAS system or, alternatively, to reflect the offence as lesser crime that are not taken into account as a performance measure . The latter tendency explains why, in recent years, the increase in the number of culpable homicides has mirrored the declining number of murders. The trend may not be a reflection of fewer murders but of a greater preparedeness on the recording officer to form the opinion that the perpetrator did not intend to kill. The difference in the inferred intention allows the killing to be classified as “culpable homicide” which no longer impacts negatively on the stations performance target. There are many other such opportunities for the manipulation of the crime statistics should police management allow it. The scant information available about the most recent manipulations indicate that 30 to 40 percent of serious offences are not being reflected in those police stations crime statistics. An untold (and probably higher) number of offences are being categorised as lesser offences.

Those who defend the use of crime stats as a performance measure sometimes acknowledge the shortcomings but suggest that the number of crimes is the best available measure of whether or not the stations are doing their job. The performance measure is believed to compel the local police to locate resources to those areas where they are most likely to prevent serious offences from taking place. The attitude also undermines the notion that increased reporting of offences reflects better access to, and the increased legitmacy the police. Unfortunately it is the current business-minded approach to performance that will result in the SAPS battling to reestablish their credibility in the one field where they have should have indisputable authority - crime statistics.