Police and Police Reform in South Africa After 1990: Some reflections

- Elrena Van der Spuy
Institute of Criminology, Faculty of Law, University of Cape Town, South Africa

This is an extract from Presentation delivered at the India International Centre, New Delhi, 19 January 2005, sponsored by Commonwealth Human Rights Initiative in collaboration with India International Centre.

Introduction

India and South Africa are two countries that not only share a comparative history, but there is also much to be said when it comes to confronting public police institutions in both the societies.

Both share some broad structural similarities relating to factors such as: the historical imprint of British colonial rule, the divisiveness of communal politics and the politics of resistance, as well as the entrenched nature of socio-economicinequality. Finally, there are also the experiences of political transition relating to the consolidation of constitutionalism and its implications for the structure and function of the police organisation.

South African Police in action

Broad structural similarities, however, should not blind one to important differences. For example, the police in India comprise 1.4 million personnel to serve its 1.02 billion people. In contrast, South Africa has a police force of 140,000 for a population of only 45.5 million.

But one should not make too much of the differences in the size of the police and the scale of its operation. Public debate and scholarly research in both societies suggest that the search for police legitimacy, professionalism and efficiency is continual. Like elsewhere in the world, the specter of corruption, political manipulation and abuse of police power requires ongoing vigilance. In both societies, democratic policing as a social practice, as opposed to an abstract concept, is an ongoing process.

Given the lack of comparative analyses of policing in India and South Africa, and the potential fruits of such an analysis, however brief, I turn to a review of recent achievements in the terrain of South African police reform. Some of the formative influences that have shaped both the debate and practices of post-1990 police reform are:

The legacy of colonial and Apartheid rule:

Under Apartheid, various political, legal and social-cultural factors conspired to render police accountability even less of a reality than it had been in the earlier years of 20th century South Africa. Much has been written about the excesses of the police under Apartheid. It was a system of minority racial rule in which an increasingly permissive legal regime (until the 1980s) facilitated the systemic abuse of police power and the subcontracting of terror to shadow formations in the name of anti-Communism.

The result was an incestuous relationship between political masters and the police high command. From 1976 onwards, the country was almost continuously the scene of hostile interactions between the police and the disenfranchised. As the struggle intensified, the police and their political masters became increasingly hostile to, and dismissive of, any criticisms of police conduct.

Under conditions of this low intensity civil war, the relationship between the disenfranchised people and the state’s security apparatus was marked by conflict and animosity. The institutional legacy of militarism, and the preoccupation with the maintenance of ‘public order’ and the defense of ‘state security’, helped to set the agenda for police reform in the early phase of political liberalisation. In this context the demand for the demilitarisation of the structure and function of the police institution, for example, needs to be appreciated.

The nature of political transition:

A second formative influence on the trajectory of police reform was the nature of political transition. In political science literature the South African case is often described as a classic ‘pacted’ agreement between competing political elites. The negotiations were characterised by compromise and confidence-building strategies, which for example, included job protection for the old guard bureaucrats under the Government of National Unity.

A second formative influence on the trajectory of police reform was the nature of political transition. In political science literature the South African case is often described as a classic ‘pacted’ agreement between competing political elites. The negotiations were characterised by compromise and confidence-building strategies, which for example, included job protection for the old guard bureaucrats under the Government of National Unity.

As a consequence the large-scale dismissal of security personnel so characteristic of other transitional experiments did not feature in local reform efforts. Through the signing of a Peace Agreement in 1991 a code of conduct was introduced. The latter placed particular emphasis on non-partisanship, the utilisation of minimum force and service delivery of the police institution to the wider public. stages.

The Peace Accord made provision for various transitional mechanisms aimed at advancing independent police oversight and a consultative collaboration between police and civil society. Imperfect as these transitional mechanisms were, they helped to clarify the rules underlying a constitutional model of policing as hammered out around the negotiation tables.

An analysis of the content of the Interim Constitution and the South African Police Services Act of 1993 point to the centrality of transparency, accountability and police-community partnerships for post-Apartheid police arrangements.

Two contentious issues regarding the police arrangement for the future related to the national versus the regional divide as well as the degree of political control to be exerted over the institution of policing in a constitutional democracy. Political expediency and compromises dictated the decisions on this front.

The influence of the international community:

The South African ‘problem’ has long been internationalised. Since the 1960s the excesses associated with white minority rule has been the subject of considerable international exposure. Collaboration between local and international human rights bodies has facilitated this process. By 1990, internal isolation under Apartheid gave way to forceful and constructive re-engagement with the international community.

Discussions on police reform reflected this insertion into a global community eager to promote the process of institutional engineering. A robust exchange regarding the future of policing emerged between a wide range of constituencies involving academics and researchers, politicians, policy elites, NGOs and police professionals themselves. The virtues of, inter alia, democratic policing, community policing, sector policing and zero tolerance strategies were considered and their applicability to local realities entertained.

Part and parcel of the process of internationalisation has been increased access to developmental assistance. Donor aid in support of criminal justice reform grew more widely after 1992. Donor agencies also targeted the police organisation as an important recipient of assistance. The exchange of ideas and the provision of resources and technical expertise were meant to facilitate institutional changes.

Such assistance has been characterised by diversity – both in terms of the types of projects funded and the diversity of donors involved. Recent South African experiments in this regard serve as a useful reminder of the opportunities for foreign assistance in support of police reform. The South-African case study also illustrates the constraints on foreign aid in the absence of conducive political conditions and local ownership of the reform agenda.

Regionalisation of security:

A fourth influence on the project of police reform that has become more apparent in recent years concerns the regionalisation of ‘security’ in the Southern African region. Under current conditions where crime itself takes on wider regional dimensions, policing priorities are increasingly being set beyond the boundaries of any one state.

Security concerns are becoming regionalised and/or globlalised. In confronting the challenges posed by organised crime networks for example, law enforcement agencies need to think beyond the national level. Under conditions of globalisation, the imperatives of law enforcement are characterised by cross border co-operation, the harmonisation of legal regimes, the standardisation of police training and the emergence of policy convergence.

In the Southern African Development Community too, there is ample proof of the extent to which the destinies of law enforcement institutions have become intertwined. One small example of this process can be found in the formation of a regional police network, the South African Regional Police Chiefs Co-operation Organisation (SARPCCO). In the past few years SARPCCO has become responsible for setting regional policing priorities and facilitating cross-border collaboration around ‘priority crimes’.

One consequence of this is that agenda for police modernisation and reform is in part at least being shaped by regional concerns. Likewise, international concern with the threat posed by terrorism is bound to have a formative influence on international cooperation between security institutions in years to come.

Privatisation of security:

The fifth influence that has come to shape the debate and practice of public police reform in South Africa concerns the privatisation of security. Recent calculations show that there were twice as many registered private security guards (248 000) in the year 2003 as compared to the figure for 2002 (132 310)2. The ratio of public police officials to registered private security guards for 2003 was almost 2:1.

Whilst the trend towards the commodification of policing services is of a global nature, the consequences associated with such privatisation in the context of new democracies may well be more insidious. Rampant commodification of security means that security becomes a private as opposed to a public good provided by the state to its citizenry.

In high-crime contexts characterised by limited state capacity and resources and entrenched patterns of inequality, access to security is likely to become bifurcated along distinctly class lines.

Such developments have prompted various discussions on normative concerns relating to equal access to justice as well as political discussions on the role of the state vis-à-vis the delivery of basic security. The trend towards privatisation has contributed to a broadening of the debate on policing reform.

Again, South African experiences suggest that the terms of reference for a discussion on the future governance of security can no longer afford a parochial focus on the South African Police Service. The institutional realignments in the delivery of security necessitate demand new conceptual tools and approaches. In the early days of discussion on South Africa’s policing future a state-centered approach to police reform was very much in evidence.

In recent years a more pluralist approach to policing reform has emerged with new sets of research questions being posed to take account of the evolving inter-relationships between the market, the state and the community as providers of security. Discussions on police accountability, for example, now admit that the co-existence of such multiple providers, necessitate a re-framing of the debate on oversight way beyond the contours of the state.

Rising crime and public concern with crime:

The sixth formative influence on the project of policing reform (and a particularly important one at that) has been the rise in crime, which has accompanied South Africa’s political transition and public perceptions of criminal disorder pervading the streets. This has led to continuous shifts in crime policy and institutional priorities regarding police reform. (Shaw, 2002).

By 1998 a forceful engagement with crime trends shifted the emphasis in police reform into more technical directions. The comparative record suggests that the South African trajectory – from broad human rights concern with political oversight to a much more managerialist emphasis on service delivery - is not unique. On the contrary, in the early phase of political transition in post-authoritarian contexts police reform tends to emphasise the political values of accountability, rule of law, and human rights.

Resources are targeted for building mechanisms of oversight and inducing sweeping changes in cultural habits amongst police personnel with insufficient attention given to building police capacity to deal with increases in violent crime.

But under political pressure to do something about crime, the police may well resort to repressive tactics, which has much more in common with the paramilitary policing model than with a new constitutional order.

At this juncture, the theory of democratic policing has less and less influence on the actual practice of policing. An enquiry into policy shifts over the past fifteen years - particularly from the National Crime Prevention Policy of 1996 to the National Crime Combating Policy of 2000 - would suggest that South African developments illustrate the extent to which the agenda for police reform remains vulnerable to situational exigencies.

Police reform is a project subject to realpolitik often underestimated in more abstract discussions. In conclusion, the debate on the police in South Africa has changed radically in the past decade and a half. The exposés of police abuses and the deep corruption of police power in apartheid society produced in the 1980s gave way to constructive engagements with the policy frameworks and institutional mechanisms for democratic policing in the 1990s.

In the current decade, there is a widespread desire for effective and humane policing. But there is an equally common awareness of the obstacles in the way of achieving it. Most South Africans would agree that the police should act with professionalism and according to the ideals of due constitutional process. But few view this goal as attainable under current social conditions. In this sense, the debate is no longer about what, but about how.

Critical engagement with the how is a necessary pre-condition for a policing future that will consolidate the advances that have been made thus far. In pursuit of such engagements exchanges within the larger Commonwealth community, and societies such as the Indian one, seem eminently desirable. In this regard the efforts of the Commonwealth Human Rights Initiative deserve particular mention.