As we celebrate the twentieth anniversary of our Constitution, the government’s cavalier disregard for the rule of law suggests no real commitment to the human rights which are its cornerstone. A recent Supreme Court of Appeal judgment confirmed that its failure in June 2015 to arrest Sudanese President Omar-al-Bashir, who faces genocide and war crimes charges at the International Criminal Court, was a breach of its international obligations and inconsistent with South African law. Small wonder that the organ of state primarily charged with upholding the law – the police – regularly break it by inflicting cruel, inhuman and degrading treatment on people, in contravention of the Prevention and Combating of Torture of Persons Act of 2013. Justice is denied to most victims of police abuse and of other crimes, for the criminal justice system is in a state of disarray because of political interference. These abuses take place in a context in which a host of other rights – including to decent shelter and to health – are subverted to the ends of politics and personal enrichment. At the heart of this disregard for the Constitution lies the conflation of political party interests and those of the state.

The South African Police Service (SAPS) is at the forefront of abuse. There are many police members who strive diligently to give of their best, often without due recognition of reward. Unfortunately there are also too many who are incompetent, brutal and corrupt who are permitted to carry on their abusive behaviour with impunity and may be rewarded with promotion. It is SAPS management and their political bosses who bear responsibility for the widespread abuse of power – endemic assault, torture and malicious arrest – by their subordinates. Tubing (near suffocation with a plastic bag which may result in death) is widespread. Torturers have serious psychological problems and should never be allowed to remain in positions in which they have power over other people; however, there has been no public condemnation of such aberrations by management or ministers, nor evidence of any constructive steps to deal with perpetrators. 

While that is IPID’s function this Directorate, reporting to the Minister of Police, has been rendered dysfunctional by continued political interference. Eight months after N was brutally beaten and tubed by police members he identified, and corroborative medical evidence submitted, none of the members involved has been arrested and charged. Unsurprisingly victims have little confidence in IPID. Many (including a woman tubed in Glebelands) are too scared to report abuse. Marikana should have made it abundantly clear that this Directorate must be removed from the control of the minister, and report to an independent board. 

Malicious arrests are another form of police abuse, especially if bail is denied, for detainees may be subject to appalling prison conditions, denied ARV treatment, and lose their jobs, only to have charges withdrawn. This problem is linked to pressure on the police to effect arrests – rather than to secure convictions – another symptom of extremely poor policing. Nor are prosecutors necessarily blameless: Malicious arrests are prevalent in the Umlazi policing area and reportedly prosecutors allow such cases to clog up court rolls, instead of checking dockets for evidence, and guiding police investigations.

The vast majority of victims of these abuses are poor, black Africans. Despite having three levels of elected representatives they are not, with exceptions, empowered through consultation by, and engagement with, those who claim to represent them. They are used by the state as voting fodder to whom to dispense patronage in the form of housing and social grants. Instead of allowing for true multi-party and apolitical representation elected ward committees may be hijacked by political parties. Voluntary associations are not recognised for their importance in building democracy. In the beleaguered Glebelands hostel committees elected to assist with bed allocation have been disbanded by political decree, and uBunye bamaHostela, a residents’ association which crosses party divides, is sidelined. Representatives of the shack dwellers association, Abahlali baseMjondolo have been persecuted. In eThekwini housing lists – the basis for transparent housing allocation - have been replaced by a system favouring those most in need. Often it is the local councillor (who should have no role in allocation) who decides on the need, on the basis of party affiliation. Even social workers’ responses and reports may be influenced by councillors. Some council flats earmarked for the poor are occupied by well-paid councillors. 

Old established NPOs serving primarily the poor battle to survive because of incompetence by the Department of Social Development which does not pay subsidies timeously. SANCA, which pioneered rehabilitation for alcohol and drug addicts, is battling to stay open, but the poor have no access to private therapists. While the government steams ahead with plans for a National Health Insurance Scheme, its own hospitals cannot cope with existing demands because of widespread maladministration. Amidst allegations of gross irregularities regarding procurement and servicing of radiological equipment, the lives of cancer patients, some of whom wait months for appointments, are at serious risk – for which the Department must bear full responsibility.

Much of the rhetoric about racism misses the point, as do the violent protests over symbols of colonialism. In twenty two years there has been no real transformation of the bedrock structures of colonialism: Under-developed rural reserve areas administered by colonially transformed traditional leaders and the accommodation of migrants in degrading urban hostels. The politically-linked carnage in Glebelands hostel in Durban, which has cost an estimated 57 lives in two years, is rooted in the failure of the municipality and the province to change these apartheid relics into decent accommodation for poor families and administer them properly. It is yet another manifestation of political expediency triumphing over transparent, democratic governance. The rural poor continue to stream into town because most rural areas remain as underdeveloped as they were under apartheid. Polemics about colonial land dispossession cloak ongoing deprivation of, and threats to, indigenous land rights in rural areas by organs of state and mining companies operating with black empowerment partners.

There are indeed still two South Africas (but racial divisions are increasingly blurred) and the gulf between them remains wide. It is those previously disadvantaged who are still poor and powerlessness who continue to suffer when their government ignores or breaches its constitutional obligations. It is easy, but short-sighted, for the more privileged to ignore the plight of the ‘other half’ – but if we do not all take a stand to defend our Constitution we are all at risk if democracy and the rule of law – which go together – are further eroded.

* Mary de Haas works with KZN Monitor, which has assisted many victims of tubing and other brutal assaults by SAPS members in Durban and different areas of the province.

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