By Lukas Muntingh and Gwenaelle Dereymaeker
Since the start of service-delivery protests in Mothotlung in the North West, four people died at the hands of the police. On several occasions, the police ministry has made statements defending its corps. The government’s arguments can be summarised as follows: (i) There is no culture of impunity in the police; (ii) the police service contains a few “rotten apples” who must be identified and removed from SAPS; (iii) SAPS members who are identified as committing human-rights violations are systematically arrested, charged and prosecuted and (iv) SAPS officers must often react to violent situations and are themselves often victims of violence, and sometimes killed.
As much as one would like to believe the government, the facts do not support their statements. A culture of impunity is in fact pervasive in the police and it is indeed a rare event that police officials are disciplined let alone criminally prosecuted for serious human-rights violations perpetrated against members of the public. This conclusion is based on data made available by the Independent Police Investigative Directorate (IPID) and its predecessor, the Independent Complaints Directorate (ICD) in their respective annual reports, which are publicly available.
For the period 2009/10 to 2011/12 the ICD reported that of all the cases that it investigated against police officials and recommended that SAPS take disciplinary action (between 1276 and 2261 cases a year), this recommendation was followed in less than 8% of cases. The first annual report of IPID reports a slightly increased figure of 16.75%. On average, since 2009, only 1% of the ICD and later IPID’s recommendations to SAPS for disciplinary action resulted in dismissal. During the same period, the ICD recommended that the National Prosecution Authority (NPA) institute criminal prosecutions against police officials in just over 500 cases a year but, on average, the NPA followed this recommendation in just over 16% of cases. IPID reported that for 2012/13 this recommendation was followed in 14% of cases. On average, since 2009, less than 4% of the ICD and later IPID’s recommendations to the NPA for criminal prosecution resulted in a prison sentence without the option of a fine. These figures clearly point to a culture of impunity within the police service.
The UN Commission on Human Rights defines impunity as “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account — whether in criminal, civil, administrative or disciplinary proceedings — since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims”. Impunity therefore implies a political and social context in which laws against human-rights violations are either ignored or perpetrators inadequately punished by the state. The duty to combat impunity rests firmly with the state and the UN independent expert on the question of impunity concluded that impunity is a “consequence of the failure of states to meet their obligations under international law to investigate violations, take appropriate measures in respect of the perpetrators, particularly in the area of justice, ensure that they are prosecuted and tried and provide the victims with effective remedies”.
When the minister says that officials will “face the consequences” if found guilty, this is a very big “if”. Indeed, there is only a 16% chance that the police officer will be disciplined or criminally charged, and even a lesser chance that he or she will be found guilty. The implication is that in the overwhelming majority of cases where there is a prima facie case for disciplinary action or criminal prosecution, nothing happens, and this amounts to de facto impunity. There is little to fault in the legal framework, which is progressive and comprehensive, but police management and the NPA appear to be more than reluctant to act against police officials implicated in serious transgressions. To turn the situation around would require police management as well as political heads, including the likely new head of IPID, Robert McBride, to show strong political leadership, demonstrating that police officials breaking the law will indeed be held accountable and that this is supported by evidence, not political rhetoric.
Lukas Muntingh (PhD) is a senior researcher and Gwenaelle Dereymaeker (LLM) a researcher at the Civil Society Prison Reform Initiative at the Community Law Centre, University of the Western Cape.