Current Debates in Policing Public Order in South Africa

1. Current Debates in Policing Public Order in South Africa Sean Tait and Monique Marks APCOF and Community Development UKZN

2. Debates in Policing Public Order in South Africa • Gatherings and protests have also taken on an increasing violent and seemingly uncoordinated form • ICD recorded a year on year increase of alleged cases of brutality in relation to public order policing from • 5 in 2006, • 16 in 2007 • 25 in 2008, • 59 in 2009. • majority of cases were of assault with intent to do grievous bodily harm, attempted murder and murder • Most accused members were from Stations (68) followed by allegations involving both the deployment of POP & Station members (45)

3. Debates in Policing Public Order in South Africa

4. Debates in Policing Public Order in South Africa Nature of Protest Action • A dramatic increase in public protest in South Africa in the post-apartheid period. • Service delivery failures have led to widespread discontent • Groupings mobilized around issues often in opposition to authorities they either dispose or are co-opted into in efforts to resolve tensions • A response to particular manifestations of exclusion, poverty and marginality. • Mobilisation is aimed at opening up new terrains of political and social struggle

5. Debates in Policing Public Order in South Africa Issues affecting policing public order • The impact of the shifts that took place in public order policing in the mid-1990s • Criticism of the police in neglecting their duties in creating spaces of public order and social harmony • absence of policing of violent protests • when the police did respond to public disorder and protest, police action led to an escalation of confrontation

6. Debates in Policing Public Order in South Africa • Protest action, while often cast within a veneer of access to rights is far more ambiguous and contradictory • The principles and processes outlined in the Gatherings Act are no longer being adhered to with serious consequences for police legitimacy and support • The police, particularly those responsible for public order policing are expected to quell social unease and disorder, the causes and drivers of which lie beyond a policing solution.

7. Debates in Policing Public Order in South Africa Regulating gatherings and protest • Built on a system to provide an enabling legislative framework for public activities prior to the holding of the country’ first democratic elections. • Attempts to create space for negotiation, consensus and co-operation between those who intend to hold a gathering on the one hand and the local authorities and South African Police Services (SAPS)

8. Debates in Policing Public Order in South Africa What has shifted • Deficits in the system of notification, • the role and capacity of local authorities and organisers, • the monitoring and intelligence, • the skills and resources available to the police, and • the capacity of the police responsible for public order policing to negotiate.

9. Debates in Policing Public Order in South Africa Permission • Length of notice period • Denied permission • Where protests are spontaneous, • the philosophy of the RGA should still apply, • but mechanisms need to be in place to allow this to occur. • Amore ‘neutral’ body, such as the Human Rights Commission, to take responsibility for convening the golden triangle meetings

10. Debates in Policing Public Order in South Africa • Crowd marshals • As civil society organisations who held monitoring capacity declined in strength and capacity, so too did their involvement in the monitoring and marshalling of gatherings. • Monitoring groupings have all but disappeared • We need to consider alternatives to play a visible and effective role in marshalling gatherings. • Community conflict resolution activists who are able to de-escalate conflict and disorder at the most local level

11. Debates in Policing Public Order in South Africa • Impact of POP restructuring • primary function was no longer crowd management, but crime control. • reduced to at most half the size that they were in 1995 • introduction of additional layers of ‘paramilitary’ police such as the Tactical Response Units • Revert to having a large public order unit whose primary responsibility is crowd management • A dedicated unit on the ‘French Model’ of public order which was experimented with during the preparation for the FIFA world cup.

12. Debates in Policing Public Order in South Africa • The French model is widely viewed as a highly professional one. • However the French Gendarmerie, are also categorised as ‘paramilitary’ in nature • Impacts negatively on the premium for social skills, forbearance, and individual discretion essential to accountable and effective civilian policing’ • Strong arm tactics is highly likely to reinforce alienation and mistrust that certain (more marginalised) sectors of the public feel toward the police

13. French model • Highly centralised • Limited space for intermediaries • Protection of the state • Containment rather than cooperation • The problem of intelligence • Relations between police and communities in French poor suburbs permanently on edge and hostility • Centralisation – impact on discretion and resolution by non policing responses

14. Debates in Policing Public Order in South Africa • Heyns, concluding observations in his study on protecting the right to life in the context of policing assemblies, notes police practices in a negotiated crowd management paradigm include: • facilitation of protestors’ access • involvement of women and men in the policing of protest • ensuring that individual members of the police are identifiable • keeping public order police out of sight when they are not needed.

15. Debates in Policing Public Order in South Africa Evolving national and international principles for policing gatherings • The State has a duty to facilitate public protest by providing protesters with access to public space, and protecting them, where necessary, against outside threats. • The standards applicable to the right to assembly and the use of force should be accessible to the public through readily available legislation, to enable adequate planning and rational decision-making on how to protect one’s own interests. • There should be a presumption against limitations on assemblies

16. Debates in Policing Public Order in South Africa • The proper management of demonstrations depends on communication and collaboration among protesters, local authorities and police. • During the actual protest, the normal preoccupation on law and order by State agents should, as far as possible, give way to the narrower focus of preserving the peace, and protecting people and property against harm. • International standards in respect of the use of force by the police should prevail. • Procedures should exist, as a matter of course, for the investigation of any use of force during demonstrations, and adequate disciplinary action should be taken where appropriate

17. Debates in Policing Public Order in South Africa Conclusions • Can a paramilitary model and Gatherings act co exit • Paramilitary solutions do assist with dealing with ‘security gaps’. However, Hills warns that in post-conflict and newly democratising countries, the presence of paramilitary forces may be seen as reminders of political repression thus creating more problems than they solve and ‘sending the wrong signals in processes of reconciliation and democratisation’

18. If we accept Heyn’s recommendations, it would still be necessary to review the existing Gatherings Act against the current manifestation of protest and assembly • Notification • Negotiation and planning • Review • Monitors and marshalls

19. Thank You Questions?