Saturday, May 23, 2020

'Posse comitatus' in South Africa

Things are getting dicey in South Africa.  Population centers are on general lock-down as part of the Covid-19 response.  And the South African National Defense Forces (SANDF) have been tasked to assist the police with enforcing it: Operation NOTLELA (“lock” in Sesotho).  

Expectedly, incidents of heavy-handedness have occurred.  At least one has made it to the North Gauteng High Court in Pretoria: a township resident allegedly was tortured and killed by soldiers and police when caught drinking in the garden of his home. 

The judge criticized the Defense Minister and National Police Commissioner, saying the “government had not clearly condemned acts of abuse,” and ordered the issuance of a code of conduct to guide the lock-down operations:  “No proper guidelines have as yet been issued in my view to inform even SANDF members, let alone civilians how security forces may enforce the lockdown, including when and to which extent they may use force.”  See defenceWeb of 18 May 2020. 

The National Police Commissioner has since issued a directive, stating “there can simply be no justification for torture, ever.”  The defense establishment, however, apparently does not see the need for any special directives or training.  At least not according to a “respected defence analyst” who declares “there’s no need for any ‘code of conduct and operational procedures regulating conduct’ of components of the security forces during the State of National Disaster.”  In his view, this is because “in the military it is a function of non-commissioned officers to continuously monitor soldiers’ actions. Any properly trained group of soldiers must be instructed by their officers on how to behave in executing this role and be monitored and corrected as required by their NCOs.”  See defenceWeb of 22 May 2020. 

The “analyst” does concede that “the actual execution of an arrest [is] a problem area – ‘especially when the person does not want to be arrested’”, and suggests that “the solution is to have a police officer with every section and make him responsible for handling infractions, with soldiers there for protection and muscle when required, acting on the request, directive and instruction (not command) of the police officer.”  Id. 

Let’s hope that the South African Ministry of Defence and the SANDF leadership quickly turn their attention, and seriously, to drafting and implementing a meaningful directive for soldiers deployed on Operation NOTLELA – and to ensuring that such considerations be part of SANDF operational orders going forward.

Cognizant that the facts and circumstances of their situation are particular to South Africa, the SANDF nevertheless could do well to consult the American experience.  This led to the prohibition of blanket and un-tempered use of armed forces for law enforcement purposes, which was enshrined in the Posse Comitatus Act of 1878, 18 U.S. Code § 1385.  Throughout the years since, Congress has from time to time reaffirmed the continued importance of the Act, most recently in 2018.  See 6 U.S. Code § 466.  The Armed Forces, in turn, issue proper guidelines to their components.  See United States Joint Chiefs of Staff, Joint Publication 3-28 of 29 October 2018, Defense Support of Civil Authorities, particularly its Chapter III, “Supporting Civilian Law Enforcement Agencies.”

2 comments:

  1. The judgment in the case of Khosa and Others v Minister of Defence and Others is quite interesting for legal scholarship and the actual development of governmental policy; as well as the policies of security officers’ involvement in a state of disaster. It is important for understanding the powers of the army and security officers, as well as the limitation of rights of citizens (or individuals) during a “state of disaster”. It is notable that since our Constitution does not permit limitations to the right to life and dignity, even during a “state of emergency”, the same would apply in the lesser format (state of disaster).
    First it should be noted that South Africa declared a state of disaster in terms of the Disaster Management Act. It avoided the more stringent state of emergency, which other countries, like Botswana opted for. There is always a push back to any policy, action or law that seeks to limit rights. The Government anticipated this, hence the deployment of the military to assist the police in the enforcement of the lockdown orders and regulations.
    As expected, in the first two weeks of the lockdown, there was widespread defiance of the restriction on movement. In the informal settlements people went about their lives as usual, holding street parties, insisting on religious large gatherings, standing idle at street corners in large groups etc.
    In the first 10 days of the lockdown, social media was awash with videos of soldiers frog-marching lockdown violators, making them do push ups and leopard crawls etc. The stance of the Minister of Police Bheki Cele was a confrontational one, whilst not outrightly commending the law enforcement officers’ approach, he was also militant in his approach and in his speeches. And we mustn’t forget that when Bheki Cele was still Commissioner of Police during the Zuma era, he became famous of militarising the police, and encouraging them, publicly, “to shoot to kill”. That could have given impetus to the excesses experienced during the first ten days of the lockdown.
    Turning to the Khosa matter, Mr Khosa was fatally assaulted by a combination of police and army personnel in the poverty stricken settlement of Alexandra in Johannesburg. The deceased’s wife reported that the security personnel had entered their home, and found them eating dinner, and on the dinner table was a glass of wine. An altercation ensued between the army personnel and the deceased regarding him drinking alcohol in his home during lockdown. Khosa later died, with the autopsy revealing that the fatal injury was a inflicted by a blunt force to the head.
    The Khosa matter is not unique. If the videos circulating on social media are anything to go by, it is clear that both the police and the military did not fully understand the instructions they were given. Social media is awash with videos of both police and army personnel ordering people to move from their front yards, gardens etc, and move into their houses. The lockdown regulations restricted movement outside one’s home, not outside one’s house.
    The Khosa family first approached the Constitutional Court directly, which declined to hear the matter. It went back to the High Court, where Fabricius J instructed the responsible functionary to investigate the matter to completion and submit a report to the court by 4 June 2020; and to immediately suspend all officers involved (pending the outcome of disciplinary procedures); and publish a code of conduct for all security personnel involved in lockdown enforcement. This code should be preceded by guidelines on when and how a person may be arrest, how to effect social distance, when force may be used etc, and these should be widely published via television, radio, twitter, facebook, whatsapp etc. The implicated soldiers have since been cleared by an internal investigation, which found that there was no connection between the injuries Khosa sustained due to their actions and him dying.

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