Policing and Human Rights

The Meaning of Violence and Justice in the Everyday Policing of Johannesburg

Julia Hornberger

• Publisher: Routledge
• Year: 2011
• ISBN:
  9781136746970
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

Policing and Human Rights analyses the implementation of human rights standards, tracing them from the nodal points of their production in Geneva, through the board rooms of national police management and training facilities, to the streets of downtown Johannesburg. This book deals with how the unprecedented influence of human rights, combined with the inability by police officers to 'live up' to international standards, has created a range of policing and human rights vernaculars – hybrid discourses that have appropriated, transmogrified and undercut human rights. Understood as an attempt by police officers, as much as by the police as a whole, to recover a position from which to act and to judge, these vernaculars reveal the compromised ways in which human rights are – and are not – implemented. Tracing how, in South Africa, human rights have given rise to new forms of popular justice, informal 'private' policing and provisional security arrangements, Policing and Human Rights delivers an important analysis of how the dissemination and implementation of human rights intersects with the post-colonial and post-transformation circumstances that characterise many countries in the South.

Chapter 1

Introduction

When I first started my research with the South African Police Service (SAPS) in 2001, it seemed like the research process was going to be straightforward. My South African co-researcher and I simply sent a fax to the then acting Provincial Commissioner of Police in Gauteng¹ stating our wish to carry out research ‘on the implementation of human rights into policing.’ Permission was promptly granted in the form of a return fax which stated that we would be most welcome to do so. The only condition was that we were to provide the police with anything that we were planning to publish in advance, so they could prepare a public response.

Malcolm Young, a British police officer turned ethnographer, notes in An Inside Job that ‘it is really one of the foundations of any executive power group that it maintains secrecy about its activities and avoids the possibility for its antagonists to subsume that power.’ Quoting Hanna Arendt, he continues, ‘The more public a group, the less power it is likely to have. Real power … begins where secrecy exists’ (1991:1). Reading our initial experience in this light, one could conclude that the post-apartheid South African police had done away with secrecy and surrendered their power to the public.

A year and a half later, in 2002, it was a different story altogether. Our research permission was suddenly revoked. For four months the new Commissioner of Police refused to talk to us to discuss the reasons why. It now seemed that the police were reasserting their privilege to exclusion and secrecy.

Prior to this, in fact ever since South Africa became a democracy in 1994, the government had shown an incredible openness about everything to do with human rights. There was a concomitant willingness – whether it was genuine or imposed – on the part of police management to embrace the transformation of the SAPS in the name of human rights and democratisation. However the change of attitude that we experienced in 2002 indicated that this was not a permanent state of affairs and that such openness was being reconsidered.

By 2002 a range of institutional changes drawn from a human rights agenda had been carried through in the police service in South Africa. These included the establishment of an Independent Complaints Directorate (ICD), a human rights curriculum and training programme, strict legislation with regard to the use of force and – something that was initially prescribed by the Constitution – community policing. With these changes already in place, there was no way back, even if the police wanted it. If, as our experience suggested, the relatively short-lived period of openness to human rights was indeed being reconsidered by police management, a new question arises, and one which underpins this book: What kind of policing practice is being produced in South Africa if on the one hand the police service has embraced a human rights agenda, while at the same time it is closing the door against it?

Perhaps it is easier to introduce this question through one policeman’s narrative. Inspector Kekana² joined the South African Police (SAP) in 1988. He even remembers the exact date: 3 March. He was trained in Durban, came to Johannesburg in 1990, and was promoted to the detective branch in 2001. He remembers vividly the violence of the interregnum – the years between the release of Nelson Mandela in 1991 and the first inclusive elections in 1994. And he knew what it meant to be seen as a traitor to the people merely because he was a policeman. He talked about the post-apartheid period in a way that made it clear that it was hard to carry out policing without considering issues of human rights.

Today we are much safer. The war has ended. But you see, people think they have more powers these days. I have experienced that, whenever you want to do a search, they will tell you this is my human rights and that is my human rights. But they are badly informed, and they are abusing it. It is very disturbing.

Inspector Kekana has his own way of dealing with what he calls ‘abuse of rights’:

But when they are like this, I know my rights. Then it needs someone to convince them what is right and what is wrong; I must convince them to cooperate. Otherwise I have to use some other means and ways. I have the power to [make him] submit and to make him understand. I am trying to make you understand as a human. I also know my rights, but they forget that. Then we get a clash of my rights and your rights. You must know your limits; you can’t take my right. It is quite disturbing; they don’t want to understand, but then I lose my temper and deal with the matter differently. In the end they always cooperate.

He concludes:

The Constitution has affected our work. It is in the sense that people abuse their human rights. For people who know their rights, it is better.

Inspector Kekana’s comments are suffused with ideas about rights, especially human rights and the central role that they have come to play in post-apartheid South Africa in general and in the transformation of the police towards democracy in particular. But while the notion of rights pervades his explanation, his statements also suggest that we are not dealing with a simple adherence to the law or a straightforward realisation of human rights policing. He speaks of the impossibility of simply submitting to the encompassing regime of rights. Instead, he reinterprets the idea of rights and of being human as a means to legitimise his use of violence against someone who does not want to submit to his orders. Thus in Inspector Kekana’s case the introduction of human rights, and what they make possible and what they foreclose, is not about passive reception. It is a complex process of tactical interaction and open confrontation with these rights, in which the openings and closures that human rights produce are partly evaded and undermined, while also partly being appropriated by the police officer, and hence producing new forms of policing.

This example demonstrates the complex, asymmetrical and shifting interface between police and human rights in contemporary South Africa. I will attempt to provide a more conceptual insight into the dynamics of this interface.

Human rights have become a pervasive global product, and as such have come to constitute a dominant, overarching and productive framework for the transformation of the police in South Africa. In this book I show how human rights become consequential for the police in a twofold manner: first, as a possibility of justice and grounds for legitimacy; and second, as a prescriptive, restrictive and hugely destabilising force. Together these two versions of human rights produce a hard-to-elude predicament, at the conjuncture of the moral high ground and the prescriptive discipline inherent in human rights. It is at this conjuncture, in the everyday practice of policing, that police officers strive to regain a position from which to judge morally and act authoritatively. I contend that in their attempting to do so, the story of human rights policing is subtly but effectively rewritten.

The forms of policing which I try to capture in this book give us an insight into something that lies beyond a simple dichotomy of failure or success of police transformation. Besides throwing a critical light onto the way that human rights are complicit in, rather than opposite to, (state) violence, these new formations point towards emerging developments in policing; of how state violence reconfigured through human rights becomes productive in the informal practices of popular justice and (in)security particular to what could be described a transnationalism and cosmopolitanism of the global South.

1.1 A new paradigm

The issue of policing and human rights was given new importance in so-called ‘transitional societies’ in post-Cold War democratisation, from the global South to Eastern Europe. International human rights organisations previously viewed police in these countries as classical perpetrators of oppression, acting in the name of military, totalitarian or other autocratic regimes, carrying out atrocities, and violently suppressing the population. Human rights organisations tended to give attention to such police forces only when they were accusing them of human rights abuses, rather than as a field of intervention to promote modernisation, democratisation and increased effectiveness. Such intervention was primarily reserved for Western states³ and even then, assistance for police reform, especially in the case of South America, was linked to counter-insurgency and the war on drugs. Attempts to strengthen South American police forces often led to their militarisation at the hands of dictatorial regimes (Huggins 1998) which only reinforced the human rights organisation view that police forces were prime violators of rights.

With the end of the Cold War, as autocratic rulers and non-liberal regimes were tumbling, and new governments – whether in Indonesia, Poland, Russia, Brazil or Mozambique – were proclaiming their commitment to liberal democracy, international attitudes to police changed. Police forces were suddenly discovered as protectors of rights. They were identified as important cornerstones for enabling the rule of law and protecting and enforcing the human rights of the citizenry. The focus shifted from state infringement on citizens’ rights to violence among citizens, such as ethnic strife or domestic violence (known in legal parlance as horizontal human rights abuse (Genugten 1999)). At the same time police forces were expected to stand up against ordinary crime and corruption, which seemed to be growing hand in hand with democratisation, threatening to undermine both newly achieved democracies and the possibility of stable financial investment. The new paradigm was not merely about transforming the police; it was also about transforming society through the police. Policing and criminal justice had become a new field for development intervention and international cooperation.⁴

1.2 The possibility of justice

This shift of international interest to police forces was not an isolated development but rather a component of the global trend towards human rights, constitutionalism and liberal democracy (Comaroff and Comaroff 2000, Dezalay and Garth 2002a, 2002b, Klug 2000, Randeria 2007). It reflected a process of juridification through which more and more issues would be seen through the paradigm of constitutions, bills of rights and international public law – a paradigm within which legal practice and law enforcement became the means to justice. The discourse of human rights was increasingly becoming the only legitimate secular political language to successfully replace the language of the Cold War ideological struggle between East and West (Donnelly 1992, Wilson 1997, Wilson and Mitchell 2003). Human rights were being seen as the way to unprecedented freedom, signalling an end to oppression and violence in many parts of the world. It seemed that the purely political had disqualified itself and that the rule of law, especially an inclusive transnational public law, held the key to reconstituting the relationship between nation states and their citizens. This vision of the rule of law was one of greater popular sovereignty, strengthened by recourse to international standards and instruments, holding governments accountable and holding state violence in check (Sikking 2002). Human rights were also envisioned as being independent of market forces. This was exemplified in the championing of social and economic rights, the protection of vulnerable individuals and groups, and the possibility of arbitrating cases of material inequity. Thus, human rights, in combination with consensual politics and the impartial rule of law, was to bring about unprecedented justice and non-violence and universal human dignity (Cheah 2006).

In an iconic fashion, South Africa in 1994 represented the possibility of justice through human rights and the law. The country’s severe but just struggle for freedom imbued human rights with an aura of great significance and promise. Apartheid, unlike communism or socialism, presented a political system which, after the rest of the world had abdicated from colonial rule, had no moral ground on which to stand, and even lacked the common sense of political expediency. Because apartheid was so out of step with the rest of the world and the regime was so indisputably unjust, the struggle against apartheid gathered support as one of the just and righteous causes of the second half of the twentieth century.

The notion of human rights gained prominence in South Africa at a time when the country was reaching significant political and societal milestones: the end of minority rule, the first inclusive elections, the Truth and Reconciliation Commission, and a progressive constitution which entrenched social and economic rights as judicial principles. Human rights were seen as having paved the way for these changes, and this confirmed the impression that human rights could be potent enough to really make history happen. They could be the means to a transformative political project with a promise of new forms of society based on unprecedented equality and freedom. They created a sense of a better future. Whoever spoke in the name of human rights was seen as automatically offering the possibility of virtue, righteousness and legitimacy, all of which rightfully belonged to the new South Africa.

Within the country, human rights seemed to be manifest at every turn. Many international human rights standards, which for other countries exist only in the semi-legal format of international instruments, were translated in South Africa into ‘hard’ national law.

The country celebrates not only international human rights day on 10 December, but also its own human rights day in memory of those who died in the Sharpeville massacre of 21 March 1960.

Far from merely being splendid paraphernalia, South Africa’s Constitution and its Constitutional Court have enabled a proud litigation and jurisprudence record with famous landmark cases and also less prominent routine cases, which together have given substance to the lofty ideals enshrined in the Constitution. Same-sex marriage has been legalised, the City of Cape Town was ordered to provide housing and abstain from relocating squatters, powerful multinational pharmaceutical companies were ordered to accept generics from the global South, and the state was ordered to provide anti-retroviral treatment to pregnant women. In addition, a plethora of commissions have been created to watch over human rights in everyday political and social life, such as the Human Rights Commission and the Gender Commission. Furthermore, South Africa has its own internationally known human rights champions, whose status radiates far beyond the inner circles of human rights activism and who in some senses are a global moral commodity – Nelson Mandela and Desmond Tutu being the most obvious examples. Clearly South Africa has not just been on the receiving and compliant end of the evolution of international human rights standards, but has contributed substantially to the global reality of human rights.

All this has produced something of a hyper-reality of human rights in South Africa – a hyper-reality to which the police both succumbed and contributed. The readiness of the police force to transform from 1991 onwards, in order to harness the legitimacy which could be bestowed on them by human rights, made human rights seem even more powerful. Here were the infamous South African Police – who for so long had been the embodiment of apartheid evil – becoming docile servants to the new government and all the people in the country, instead of fighting to the bitter end defending their old masters.

1.3 The absence of human rights

At the same time, the omnipresent and omnipotent hyper-reality of human rights in South Africa was being contradicted by a radical absence of human rights. This contradiction came from the prevalence of rival moral and amoral languages and practices producing competing claims on the human good. An obvious example is the concern for crime, which increasingly has outplayed the concern for human rights. This has recently reached a pitch in the form of a language of state-killing, which envisages a form of pure violence and pure justice that is, almost by definition, not mediated through the authority of the law. This discourse is startlingly reminiscent of the claims to the effectiveness of violence in controlling violence that were made by the apartheid state.

Another example of this manifest contradiction is in the nation’s infatuation with conspicuous consumption and material accumulation, in which the entitlement to private property has been elevated above redistribution and redress. Another example relates to religion, where restrictive and prescriptive religious and traditionalist doctrines seek to keep an authoritative hold on the family and other private, intimate and gendered social relations. The prosperity and pervasiveness of these tenaciously resilient and flourishing paradigms makes the human rights paradigm in South Africa appear rather thin, if not absent altogether, reducing it to a ‘life-style enclave’, as Paul Rabinow (2003, referencing Robert Bellah) has termed it.

The extraordinary absence of human rights alongside a hyper-reality of human rights calls for an explanation. Considering the pervasiveness of notions of human rights, their absence cannot be a coincidental, chance-like occurrence: it has to arise out of direct rejection or avoidance. My research has led me to believe that what has provoked this negative, or at least negligent, response is not the promise that human rights hold but what it takes to realise that promise. Human rights do not just liberate: they restructure and produce difference, which undermines, disadvantages or delegitimises other versions of the human good. Such insights can be drawn from a Foucauldian perspective which makes clear that for human rights to offer the promise of justice and freedom, a certain subject position is required, and if it is absent, then this position needs to be produced. Thus the productive power of human rights, which promotes itself as freedom, possibility, and non-violence, becomes visible as a hegemonic project.

To consider a Foucauldian perspective allows us...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgements
• 1. Introduction
• 2. Remembering the police
• 3. From Geneva to Johannesburg: Human rights training
• 4. ‘Don’t push this Constitution down my throat …’: The use of violence in everyday policing
• 5. ‘Your police – my police’: The informal privatisation of policing
• 6. ‘Ons gaan ry!’: On entanglement and human rights as violence
• 7. Conclusion: Human rights in their ordinary state
• Bibliography
• Index