After the ruthless policing of student protests in Johannesburg claimed the life of an innocent bystander, South Africa’s troubled entanglement with police brutality is once again called into question. In the wake of failure to fulfil human rights obligations and neglect of core constitutional values, the need for police reforms and new training becomes more apparent than ever.
As Johannesburg faces waves of student protest over tuition fees, South Africans exercising their right to free assembly find themselves the victim of violence and repression at the hands of South African Police Service (SAPS). Most recently, on 10 March 2021, the SAPS shot rubber bullets indiscriminately into a crowd of peaceful protesters, injuring several and killing a bystander, Mthokozisi Ntumba. The death of Ntumba is only the latest example of the kind of brutality which has come to typify SAPS conduct, particularly since the COVID-19 lockdown. The moral concerns raised by these events are obvious, but what of the legal questions?
Several articles of the South African Constitution have been contravened by the response to the student protests. These include: the right to life under section 11, the right not to be treated in a cruel, inhuman or degrading way under section 12(e) and the right to assembly under section 17. These same rights are also guaranteed under the International Covenant on Civil and Political Rights (ICCPR), ratified by South Africa in 1998, under Articles 6, 7 and 21 respectively. In evaluating the use of rubber bullets, the 2020 UN Human Rights Guidance on Less-Lethal Weapons in Law Enforcement is of particular relevance. At paragraph 7.5.2, the guidance notes that use of rubber bullets may only be potentially lawful ‘with a view to addressing an imminent threat of injury to either a law enforcement official or a member of the public.’ Video footage showing SAPS officers indiscriminately shooting into crowds of peaceful protesters clearly demonstrates that this criterion was not satisfied. The guidance further notes the risk of firing such projectiles at close range, and additionally states: ‘[t]argeting the torso may cause damage to vital organs’. Direction which proves particularly pertinent given that Ntumba died from a close-range shot to the chest.
The conduct of the SAPS has been challenged before the South African High Court in Khosa and Others v Minister of Defence and Others. While this case primarily concerned an unlawful killing by the South African National Defence Force, the court took the opportunity to evaluate the constitutionality of the brutal tactics employed by the SAPS over the course of the year, particularly when enforcing the Covid-19 lockdown. Mr Justice Fabricius found that the conduct of the SAPS breached the aforementioned provisions of the ICCPR and the South African Constitution, as well as provisions of the Convention Against Torture. He also critiqued the SAPS misuse of less-lethal weapons, referring to the aforementioned UN guidance. He determined: ‘it would cost the respondents very little to adopt or adapt either of these United Nations documents as guidelines for the lock-down. It could save lives.’ Again, particularly pertinent directions in light of the events of 10 March. Fabricius J ultimately ruled that the SAPS must instruct their members to act in line with the Constitution and use ‘only the minimum force that is reasonable to enforce the law.’ It has now been almost a year since this case was heard, yet the violent scenes of 10 March clearly illustrate that this ruling is yet to motivate reform.
The incident of 10 March demonstrates South Africa’s consistent failure to protect its citizens from police brutality. With many more people facing risk of injury or death as the student protests intensify across the country, South Africa should be considering the image it wants to portray to the world. A country compliant with human rights obligations? Or a country which allows its police force to aggressively undermine the most essential principles of domestic and international law?