As assault charges are laid against the police in the aftermath of the Marikana massacre, the outrageous reality is that torture is still not criminalised in South Africa.

A draft law called the Prevention and Combating of Torture of Persons Bill is before parliament but far from adoption. The relevant parliamentary committee has postponed the public hearings on the bill that had been scheduled for August. The hearings are finally happening this week.

The bill as it stands is woefully deficient, as it neither holds the state accountable for torture that officials perpetrate on its behalf, nor guarantee redress or recompense for victims, according to the Centre for the Study of Violence and Reconciliation. These omissions are even more reprehensible in light of Marikana.

It is barely 18 years after South Africans formally ended a regime in which the police routinely used measures ranging from brute force to torture in silencing legitimate demands. This is what informed the post-apartheid decision to transform the police force into a police service.

In a perilous lapse of memory, we have in the past few years seen a remilitarisation of the police amid resurgent calls from politicians for police to use maximum force, signalling the rise of an authoritarian populist tendency in the ruling party. It therefore doesn’t seem like a coincidence that, at the same time, legislators have been lackadaisical about criminalising torture.

If lawmakers were compelled to act in the public interest, rather than pander to factional, elite-driven interests in the ruling party to ensure their continued tenure in parliament, the torture bill might have been passed a long time ago.

In contrast we have witnessed flurries of activity around legislation that represents internal ANC constituencies’ interests in advance of the ANC national conference to be held in Mangaung in December this year.

Among these are an enthusiastic punting of the Gender Equality Bill (GEB) and a face-off over the Traditional Courts Bill (TCB) between two of ANC leader Jacob Zuma’s myriad divergent internal support bases: the ANC Women’s League and traditional leaders.

The GEB entrenches the principle of equitable representation of women in the upper echelons of the state and private sector. Lulu Xingwana, minister for women, children and people with disabilities, was betting on this bill to quieten discontent, also within the ANC, about her ministry’s lacklustre performance.

After all, the bill addresses the concerns of a constituency in the middle class and elite which is still being locked out of senior positions merely because of their gender.

It is a worthy cause. But the zealous promotion of the bill contrasts starkly with the silence from women in power, including Xingwana, about the collapse of organisations such as Rape Crisis and the Saartjie Baartman Centre that provide support services to women who survive gender-based violence.

These organisations help the most vulnerable: women with little resources who, without assistance, would remain trapped in domestic violence. But the ANC Women’s League’s internal party power base seemingly does not depend on such women.

Xingwana received an unexpected political boon in the form of the TCB, as it allowed her to position herself as vocal defender of rural black women – face-to-face with the ANC’s traditionalist lobby, which is hell-bent on expanding its anti-democratic powers.

Contradictory reports abound about the status of the TCB, with Xingwana even claiming an “overhaul” of the bill. But the justice department’s subsequent proposed revisions retain the bill’s recreation of the apartheid-era separate and unequal legal system for rural black people.

While these groups are jockeying for power, Zuma, with one eye on Mangaung, has tried to turn his TV-broadcasted faux pas equating womanhood with heterosexual motherhood into political capital. He released the Green Paper on Families to “contextualise” his statement, a move sure to be popular with his retrogressive support base.

This arbitrary use of laws and policies to shore up support from contending factions in the ruling party, instead of concentrating on the country’s real problems, unsurprisingly produces results that undermine the intent of the Constitution and legislation adopted earlier on in the post-1994 process of democratic consolidation.

It is a factionalism suffused with authoritarian populism that, head-to-head with constitutionalism, causes a schizophrenia in the state. Into the resultant breach steps a politicised police service, transformed in name only and therefore only ever one step away from reverting to its erstwhile violent ways in protecting the interests of a privileged few. These are the makings of the Marikana massacre.

It is the same schizophrenia that enables the similarly politicised National Prosecuting Authority (NPA) to opt for the apartheid distortion of the “common purpose” legal doctrine to prosecute people protesting heinous exploitation at Lonmin mine. When questioned, the NPA compared these protestors to “robbers” in what sounded like a Mogoeng Mogoeng interpretation of post-apartheid justice.

We need a re-think to entrench public accountability, starting with the political leadership of this country. Constitutional law expert Prof Pierre de Vos at the recent “People’s Power, People’s Parliament” civil-society conference suggested a compulsory revamp of political parties’ internal election processes to allow room for public representatives to indeed represent the public rather than their parties’ (factional) interests.

De Vos’s argument is that changing the electoral system to allow some measure of direct representation, rather than the current system where party leaderships determine who goes to parliament, is insufficient to address the lack of accountability. The failure of the system of directly elected municipal councillors to enhance accountability is a case in point.

Following the examples of countries such as Argentina, Mexico and Germany, a party law should be adopted to compel political parties to have democratic internal election procedures concordant with the country’s election laws.

The law should render internal elections of individual members to party lists open to scrutiny, including how individuals fund their campaigns. Of course, party funding should also be transparent, as the “People’s Parliament” conference recommended in a memorandum handed to parliament.

Direct public accountability would produce public representatives that are seized with the multiple systematic and Constitution-based interventions required to resolve the socio-economic nightmare underlying the Marikana massacre – rather than factional and personal interests. This is essential to prevent future Marikanas.

This blog is based on a monthly column that first appeared in the Independent Group’s dailies and is made available by the Open Society Foundation for South Africa to monitor the health of our democracy.



Christi van der Westhuizen

Dr Christi van der Westhuizen is an award-winning political columnist and the author of the book Working Democracy: Perspectives on South Africa's Parliament at 20 Years, available for download...

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