Policing the accord

Etienne Marais & Janine Rauch

A brutal week of widespread carnage, random attacks on commuters and question marks over Chief Buthelezi's willingness to commit the Inkatha Freedom Party (IFP) to the peace accord, all contributed to a dramatic backdrop against which a remarkable "deal" was successfully clinched.

"The Nation's birth certificate", and the "Day of the Vow" were the terms in which the media described the tripartite peace accord. There is little doubt this accord constitutes a unique agreement. It represents the first substantial negotiated agreement which allows parties other than government to play a role in the management of the transition process. But will 14 September 1991 be looked back on as an important milestone in South Africa's quest for a new democratic order? And what of the role of the police force in the quest for peace? The role of the security forces during the transition phase is one of the key factors to determine the success or failure of the transition itself. What will the impact of the accord be on policing and what are the implications for the negotiations process in general?

A Unique accord

The specific features of the National Peace Accord, which make it more likely to succeed than any previous peace agreement and local peace accord, include the following:

Detailed codes of conduct for political organisations and the security forces

• Improved mechanisms for dispute resolution.
• Provision of swifter mechanisms to process violent crime.
• That the accord is binding on security forces and is supported by leaders of the SAP.
• There are structures to facilitate multiparty monitoring of the SAP.
• Allocation of state resources to facilitate the peace accord.
• The existence of a more broadly legitimate commission of inquiry which may also involve a degree of multiparty participation.
• The fact that self-governing states and bantustan governments are signatories, makes for wider changes in areas where the role of the police has been slightly controversial.

The Potential to Limit Violence

The peace accord has the potential to decrease violence in three ways:

• By effectively promoting political tolerance and providing mechanisms for local dispute resolution. The promotion of the "Code of Conduct for Political Parties and Organisations" at grassroots level has the potential to contribute to a reduction in the tension and hostility which exists in politically divided communities.

• By increasing the effectiveness of the criminal justice system through greater police-community co-operation and the provision of better organised resources for the policing of violence, as well as the provision of streamlined court procedures.

• By limiting the potential of any groupings (from within the security forces or elsewhere) to promote violence and destabilise the process of building peace.

A New Basis for Policing?

A principle of policing is that the police derive their authority and their special powers from society - they are delegated this authority and power on behalf of the people. In addition, the laws which are enforced by the police should be based on societal consensus on the values and principles to be protected.

In South Africa, the police have not been delegated authority by most of the citizenry. South African law is not the product of a process of democratic government and is thus not formally based on consensus.

The contradiction of policing without this basis of consensus is basic to challenges around the credibility of the police force. SAP leaders should welcome the peace accord as it provides a set of principles and values on which consensus has been reached.

This consensus could in the interim period fill the gap left by the absence of representative government and enable the police force to build a broader legitimacy for itself.

The most significant achievement of the accord in relation to policing is the creation of a structured and formalised relationship between the police force and a range of civilian interest groups. The various structures of the peace accord provide the potential for greater police accountability at a range of levels:

• Politically: It formally promotes the notion that parties other than government have a legitimate right to question and contribute to policing policy.

• Legally: By providing for external monitoring of complaints against the SAP, it makes investigation into police criminality more reliable.

• Internal Discipline: The "Police Code of Conduct" should become the reference point for police behaviour. Transgressions of the code could be dealt with through the public structures of the peace accord, rather than in closed SAP structures.

• Community Accountability: The new police community liaison procedures have the potential to heighten police sensitivity to community needs and provide for greater community determination of policing priorities.

Multiparty Control

Does the peace accord go far enough? Does it really entrench multiparty management of the police force? Adriaan Vlok, the then Law and Order minister, stated earlier this year that "the police were prepared to consider any proposal on joint management emanating from the multiparty conference."

The SAP's own proposal in respect of multiparty participation has centred around a police board, which is now presented as part of the accord. The precise status of this board has been unclear. Senior police officers commented in July that they weren't sure whether the board would be accountable to the minister, or the minister accountable to the board.

Under the peace accord, however, the minister is clearly still in charge. The board is an advisory structure and offers access to influence the direction of the SAP without offering real multiparty management.

SAP's Reform Agenda

In assessing the extent to which the peace accord has moved the process of police reform forward, we need to be aware of the SAP's own internal reform agenda. An examination of this shows marked similarities with the peace accord itself.

The key proposals of the peace accord which relate to police functioning are the following:

Police Reporting Officer (or "Ombudsman"): The notion of an ombudsman has been on the agenda within National Party ranks since at least early 1990, and has previously been mentioned by the Minister of Law and Order. Police officers view the ombudsman as serving a useful purpose in ensuring that the process of investigating complaints against the SAP is not seen as whitewash. The nomination of a regional police reporting officer by the Bar Council and the Association of Law Societies does, however, potentially give this person more independence than earlier conceptions of an ombudsman.

Police Board: The establishment of a police board on which civilians from a range of political backgrounds serve, has also been suggested before in the SAP's own strategic plan. It is seen by the police force as part of the broad strategy of "depoliticising" the police force.

Police community liaison: The "partnership in policing" between the police and public is a central theme in the SAP's view of what constitutes good policing. The establishment of police-community liaison structures around the country is not new.

Special SAP investigation units: Such units have also been set up prior to the peace accord - usually on an ad hoc basis - to investigate allegations of SAP misconduct. In Pietermaritzburg district, a more permanent unit was established and has been separated from other units. The special unit for investigation into cases of political violence (based in Durban) has also played some role in investigating allegations of security force criminality.

While there is no doubt that the provisions of the peace accord contribute to police reform, these "changes" to the SAP are not as radical as they might initially appear. This is borne out by press reports in the days following the peace summit, which presented provisions of the peace accord as initiatives from the police force itself.

It is arguable that the outcome of negotiations around policing is dominated by the SAP's own vision of the kinds of structures and processes needed to build greater police credibility, rather than by popular demands for a new style of policing. This should be seen in the context of the importance for the government of maintaining the initiative in the negotiation process. It also reflects a weakness in the political programme around policing on the part of other political organisations.

During the peace talks, however, the SAP's own view of "police reform" was somewhat modified. This suggests that the other negotiating parties are beginning to be more effective in challenging the SAP's technical control over the policing arena. It remains possible that the accord offers some real opportunities for multi-lateral determination of police policy, particularly if the police board is utilised to the full.

A good example of how a government proposal was modified through the process of negotiations is the commission of inquiry into the prevention of public violence and intimidation. The commission arose from FW de Klerk's first peace summit (May 24-25), and the proposals of the peace accord make the commission more widely representative, linking it into the peace structures, and thus making it likely that it will be more legitimate and effective.

An "Interim Arrangement"

While the accord does not constitute multiparty management of the police force, it does allow for a more passive form of multiparty monitoring of the police force which is not, in principle, different from the role performed by UNTAG during the Namibian elections.

This poses the question of whether such multiparty monitoring can actually serve one of the functions of an interim government, namely that of ensuring that the police force is not used to promote one party's interests during the transition to a genuinely democratic government. Does the accord thus serve as a precedent for an "interim measure", which gets other parties involved in the process without reducing the government's ultimate authority during the transition?

ANC leaders will argue that the interim government is still on the table and must be negotiated at the multiparty conference. However, the grassroots work that will be necessary to promote the accord certainly makes it a real, as well as a theoretical precedent.

Local Level Implementation

Because of the vagueness of the peace accord, and the nature of monitoring and dispute resolutions, the way in which the process will work is, to a very large extent, dependent on the way in which participants operate at a local level. All the structures and processes of the accord will have to be negotiated and given concrete form by the various parties, and local variations in police operations will have a significant impact on potential police reform.

The capacity of the accord to really restrain local violence thus depends on:

• Good faith on the part of the signatory parties.
• The commitment, capability and attitude of local level political constituencies and police personnel towards the peace agreement.
• The organisational capacity of the signatories to take the accord to their membership in local areas, to act on information from their constituencies and to maintain good lines of communication with these constituencies.

There is a danger than an imbalance in resources between different parties (particularly the resource advantage of the government) could mean that opposition constituencies are "disadvantaged" in the peace process. This may mean that the peace structures are not seen to be dealing with conflict in a fair and legitimate way - and, in turn, may undermine those parties which are unable to participate to the full extent.

Active participation by all parties in every level of the new peace structure is necessary to make peace possible. Furthermore, committed participation in the police board and various police monitoring structures is the only hope for improving police accountability and giving communities a real voice in determining police policy.

Because all the suggested changes to the policing process are focussed on the violence, police-community relations in general are highly dependent on the success of the peace process. The failure or limited success of the peace accord will adversely affect community attitudes towards structures such as police-community liaison committees, police reporting officers and civilian police management boards. If groups from within civil society do not strive for a say in policing at this time, the likelihood is that the police force in the new South Africa will be as closed, autocratic and unresponsive as the much-maligned SAP of the past. From a policing point of view, it is essential that the structures of the peace accord are given "teeth" and made effective. The danger is that all the eggs of police-community relations have been placed in the basket of violence.

Basis for Challenging NP Hegemony

The National Peace Accord is not a magic fix and is unlikely to instantly end political violence. The key to its success is implementation and education at a grassroots level by all parties and institutions involved. While this poses significant challenges to the signatories, the process is likely to be aided by two factors.

Firstly, the existence of the increasingly credible "facilitating group" which has the ability to monitor the broad commitment of political players to the accord. Secondly, state-controlled media and other institutions must be seen to be positive toward the peace accord.

The peace accord provides the opportunity for the relationship between police force and society to be transformed from one characterised by the exclusive political control by the National Party to one which is inclusive of the wider South African community.

Both the police force and the "liberation movements" are faced with vital choices in their response to the peace accord.

By making the peace accord and its structures central to the management of policing, and by allowing structures like the police board to function meaningfully, the police force will be giving itself the opportunity to become more credible and in the long run enhance its capability to fight crime.

For opposition groupings, the priority is a concrete engagement with issues of policing and a real acceptance of the framework of the peace accord as a basis for challenges to the National Party hegemony in the arena of law enforcement.

Etienne Marais is a former Researcher at the Centre for the Study of Violence and Reconciliation

Janine Rauch is an independent consultant.

In Work In Progress, No.78, October/November 1991.

© Centre for the Study of Violence and Reconciliation