South Africa: The Criminal Injustice System

analysis

At the end of January, an all too familiar pattern of events played itself out in the Pinetown Magistrate's Court in Durban.

Four member of the shack dwellers' movement, Abahlali baseMjondolo, were arrested after a protest against problematic practices in a housing development in KwaNdengezi. They were accused of public violence, robbery, damage to property, and assault with intent to do grievous bodily harm.

Charges were withdrawn against three in court, with the exception of public violence. Abahlali has described the case as political and not criminal, as their activism is challenging entrenched interests in the area. They maintain that the charges against their members have been fabricated, and that the flimsiness of the remaining charges will emerge once the matter returns to court.

Meanwhile, in Makause, on the East Rand of Gauteng, three activists were arrested in October last year and are due to appear in court next month, in spite of the fact that, four months after their arrest, no formal charges have been put to them.

The likely charge appears to be intimidation. One of the activists apparently mentioned the Marikana massacre in a meeting to discuss an intended march against police violence.

Two activists were then subsequently arrested for wearing T-shirts in support of the massacred workers at Marikana, and one of them (a woman) was stripped of her T-shirt and made to stand semi-naked in the police station. So the available evidence points to the police having taken offence to the references to Marikana, and this has formed the basis for the arrests.

Time will tell if the cases against these activists have any substance. But if similar, previous cases are anything to go by, that they are likely to be baseless.

Many citizens look to the criminal justice system for redress when they are victims of crime and other social ills, and so they should. Their expectation is that the system exists to deter crime and punish offenders, and will mete out justice impartially, without fear or favour.

The system is also expected to mount a substantial case against accused persons, who are meant to enjoy protections against abuses of the system, particularly by its investigatory and prosecutorial arms.

But there are signs that - in situations where outspoken critics challenge the power of politicians - the system can be turned against political critics. The politicisation of the system is highly uneven: many police officers and prosecutors conduct their work impartially, and with integrity. But it is also apparent that political manipulation is a growing problem.

The recent attempt by the National Prosecuting Authority to charge the arrested Marikana miners with the murder of their own comrades under the apartheid-era common purpose doctrine, is possibly the most visible and shocking example of this trend. But there are many other, less well publicised, examples.

These abuses are most noticeable in the investigatory arm of the system. Many bogus criminal cases, cooked up by members of the police under the sway of local politicians, are caught when the matters go to court, and judges often unleash stinging rebukes against the police and prosecutors involved.

Public violence and illegal gatherings are the most commonly used charges. The familiar cycle is as follows. A protest occurs over a specific grievance, which may or may not be 'legal'. If the protest is 'illegal', it is generally because the protestors have notified the municipality of their intention to march, and the protest has been prohibited on unlawful grounds, or because the protestors did not notify the municipality as they know it will be prohibited or severely proscribed.

Alternatively, protestors may embark on other forms of direct action like road blockades, after becoming sick and tired of holding march after march where their memoranda of grievances are simply deposited into a municipal bin.

If the protest turns violent, it is often in response to police violence against what is generally a peaceful protest. In anger, the protestors run amuck, attacking property and even people.

The police then use the events as an excuse to target prominent activists who are considered 'troublemakers', whether they were directly involved in the violence or not. They may even have attempted to prevent the violence. If they are arrested after the fact, then their arrests are likelier to happen towards the end of the week, to stretch their detention over the weekend before appearing in court.

As in the Makause case, the charges may be left deliberately unclear, making it impossible for the activists' legal representatives to prepare adequately. The state generally applies for postponement after postponement, claiming that its case is not ready, which ties the activists up in court appearances for months, only for the charges to be dropped for lack of evidence. By that stage, great damage has often been done to their lives.

As evidence leaders, prosecutors may be too busy to question to integrity of the police evidence, or they may actively facilitate the police strategy to keep the activists behind bars by any means necessary.

Some activists cannot afford bail. But if they can, then another increasingly common technique is to seek stringent bail conditions to prevent activists from continuing their organising work, and magistrates - inexperienced in constitutional matters - often simply accept the word of the state prosecutor.

For instance, in Grahamstown in 2011, after a protest that resulted in community members digging up a road in Phaphamani, Unemployed Peoples' Movement and Womens' Social Forum activists were given bail conditions that effectively banned them from political activity, including organising or even participating in marches. The charges against the activists were dropped a year later.

Sometimes, bail may be refused on spurious grounds. In the same year, Thembelihle activist Bayi-Bayi Miya was arrested on charges of public violence and intimidation for leading protests in the area, in spite of the fact that Miya had in fact attempted to stop the violence. Other residents were arrested too. The state opposed Miya's bail successfully in the magistrate's court, and the police kept him in 'preventative detention' to stop him from organising any more protests.

The Socio Economic Rights Institute (SERI), representing Miya in the South Gauteng High Court, argued that the state's charges against him were so weak that he would almost certainly be acquitted.

They challenged successfully the magistrate's decision to allow the detention and deny bail, but only after Miya had spent a month behind bars. Last year, the case against the other residents was struck from the roll for lack of evidence after seven months and nine postponements, leading SERI to conclude that the case against their clients was, in fact, political.

Then there are the cases which strongly suggest that evidence against activists has been manufactured for political reasons. A key witness in Miya's case emerged only 22 days after he was alleged to have uttered a threat to burn her house down - in spite of her claiming to fear for her life - and her statement was so weak that nothing of significance could be deduced from it.

In 2009, members of Abahlali baseMjondolo were arrested on murder charges following an armed attack on members in Kennedy Road informal settlement, in an attempt to rout them out of the settlement.

The charges were eventually dismissed after the judge found contradictions in the state's case. Several of the witnesses were unsatisfactory, and the judge questioned their truthfulness after it emerged in testimony that witnesses had been coached to point out members of an Abahlali-affiliated dance group, rather than just the perpetrators.

The democratic South African state still enjoys huge legitimacy; after all, it is only two decades since many struggled and died to bring it into being. But, by politicising the criminal justice system, the police and politicians are sowing the wind.

Once the veneer of impartiality is stripped from the criminal justice system, and it becomes exposed for what it truly is when the chips are down - namely the repressive apparatus of the ruling political class - then the state will lose its legitimacy.

Struggles could move beyond localised fights with non-performing councillors and escalate in a struggle against this political class and even the state itself. Then they will have a protracted fight on their hands that, in the long term, they cannot possibly win.

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