Malema's police instructions were unconstitutional

In accordance with a formal complaint laid by Democratic Alliance MP Dianne Kohler-Barnard, the Independent Complaints Directorate will assess whether the SAPS acted improperly at the ANCYL conference in Limpopo.

The basis for the allegations being that the South African Police Services acted upon instructions given by the president of the African National Congress Youth League, Julius Malema, and forcibly removed rival delegates.

Moses Dlamini, the ICD spokesperson confirmed that they will establish whether there was criminal conduct capable of investigation or control issues which need to be dealt with by the SAPS hierarchy.

Constitution

The objects and creation of a Police Service are set out in sections 205 – 208 of the South African Constitution :

Section 205 (2) National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.

205(3) The objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

206 (6) On receipt of a complaint lodged by a provincial executive, an independent police complaints body established by national legislation must investigate any alleged misconduct of, or offence committed by, a member of the police service in the province.

207 (2) The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing.

South African Police Services Act

Preamble : Section 214 of the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), requires legislation to provide for the establishment and regulation of a South African Police Service which shall be structured at both national and provincial levels and shall function under the direction of the national government as well as the various provincial governments.

Sections 11 to 13 cover the authority and duties of everyone from Commissioner down to members of the SAPS. It also confirms that where applicable the Criminal Procedures Act shall also be of full force and effect in as much as it applies to this act. (Of course it is always applicable as prevailing legislation)

Section 46 ‘Political activities of members’

46. (1) No member shall- (a) publicly display or express support for or associate himself or herself with a political party, organisation, movement or body;
(b) hold any post or office in a political party, organisation, movement or body;
(c) wear any insignia or identification mark in respect of any political party, organisation, movement or body; or
(d) in any other manner further or prejudice party-political interests.

In addition as set out in Section 207 (2) of the Constitution there is a national policing policy.

Authority

The President appoints a National Commissioner of the police service, to control and manage the police service. His powers and duties are then prescribed by the Constitution, the relevant acts, the national policing policy and the directions of the Cabinet member responsible for policing.

He then delegates these powers to subordinates who exercise them on his behalf.

Objectives

The police are there to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.

Crucial to this process is the following :

Where they are called in, for example, by the ANCYL to maintain public order their independence is still intact and the discretion to intervene rests solely on those entrusted with this task by their superiors.

That the police understand that their mandate to intervene in the conference only becomes applicable if they witness a crime or believe that there is a genuine threat to public order. If the conference becomes rowdy that is not a criminal offence nor should they intervene unless ordered to by their commanders.

Under no circumstances should they ever take instructions from a political leader because unless he is the President he has no authority.

At best a political leader could point out the crimes that he/she alleges are being committed and thereafter leave it to the police discretion.

Limpopo

If regard is had to the contents of the video and reports from the Limpopo there does appear to be a number of infractions of the Constitution and the acts including but not limited to – unauthorised parties giving the police instructions, police removing one section of the delegates which may constitute playing party politics, using excessive force against delegates and infringing the rights of individuals whose only crime appears to have been their vocal disapproval of Malema.

Whether this constitutes criminal behaviour is doubtful in that it appears to be a case of everyone getting carried away by the antics of Malema. There was no police intention to favour Malema as such.

The police need to be told by their commanders that the next time anyone tells them what to do, and they are not their superiors, they should explain to them that any complaint or charge must go through formal channels or the matter be left to their discretion.

In terms of the conference itself there is no doubt that the use of the police as a political tool for own gain must place its legitimacy in question.