Rauch, J. (1993). State, Civil Society and Police Reform in South Africa. Paper presented at the International Society of Criminology Conference, Budapest, August.

 

Janine Rauch

Paper presented at the International Society of Criminology conference, Budapest, August 1993.

Janine Rauch is an independent consultant.

The Transitional Context and Police Reform

South African State President F W De Klerk began his program of political reform in South Africa in February 1990 by unbanning the African National Congress (ANC) and other liberation movements and releasing a number of leading political prisoners. The subsequent three years have seen the beginning of a protracted and bloody period of transition. Spiralling social violence, both "political" and criminal, has begun to concentrate the minds of politicians and policy-makers on issues of policing and police reform.

The National Party government has a historical advantage in the area: it had been responsible for the development of one of the world's most sophisticated repressive police agencies - the South African Police (SAP) - over a period of thirty years. It had professional, technical and intellectual capacity on the subject of policing. The ANC and other democratic forces, on the other hand, were severely under prepared and underresourced for tackling the problems of police reform. This was the result of the following factors, among others:

  • The perception that the present problems of policing are "political" in origin, and will hence fall away with a change of political power. There has been an idealistic belief that a new democratic government will naturally restore credibility and efficacy to the police institution.

  • There has been a lack of attention to the development of a comprehensive policy around "law and order" or policing from within the liberation movements. It had not trained any significant number of its members in policing skills or policy-making in other countries during the period of exile, as it had done with military combatants.

  • The strong militaristic tradition which pervades both Government and ANC discussions around "security" in a post-settlement South Africa. In the ANC's case, this was largely due to its historical concentration on military (rather than policing) issues. Having had its own armed wing, the ANC's views on the transformation of the military institution were relatively better developed.

  • In the recent period, the organisation has engaged with policing primarily through crisis intervention - "putting out fires" - dealing with violence affecting its membership on the ground. This has occurred at local level negotiations between political and community organisations and the police, largely through the structures of the National Peace Accord (see below). This experience of peacemaking is now proving to be a useful input into the ANC's vision of policing.

The bulk of the police reforms introduced in the 1990-91 period were initiated by the government or the SAP itself. Its new rhetoric of police reform, centring on the concept of "community-supported policing" continues to dominate the public debate about the transition and the longer term reform agenda. This paper will attempt to examine the relationship between state and civil society in the process of police reform in the transitional period in South Africa. Civil society is understood as follows (Haysom et al 1993:1):

The term civil society has come to mean associational activity outside state structures and includes the diverse set of institutions and activities, cultural, political, economic, religious, which are not formally part of such structures. This does not mean that civil society institutions and state structures exist in splendid isolation. On the contrary, they impact on each other in important ways.

Motives for Police Reform at Present

Transformation of the South African Police is obviously an integral part of transforming the apartheid state into a more democratic one. However, perhaps the connotations of the word "transformation" suggest far more radical change to the police institution than is realistically possible. As a departure point, pragmatists must assume that the existing police organisations in South Africa will largely remain intact, that a massive influx of politically acceptable personnel is unlikely to occur, even under a new dispensation, and that the ordinary South African's experience of policing is unlikely to be transformed overnight. This is simply one of the many consequences of the fact that South Africa will not experience what political scientists have termed a "flag down, flag up" transition. Instead, the process of transformation will be protracted, and care has to be paid to the transformation of social relations in civil society as well as the state.

Given this scenario, the approach of the National Party and the SAP to the reform exercise has been motivated by the need to create legitimacy and credibility for the institutions of the state. The police leadership has been forced to acknowledge the massive credibility problem from which the SAP suffers. The police's reform agenda is driven in significant part by a concern to insulate the police force from possibly radical restructuring by a future democratic government or by other civilian intervention. To achieve this objective, they must attempt to get the police's "house in order", and attempt to create a new legitimacy for the police which could help render it untouchable in the post-election period.

Because their mission is motivated by a concern for public opinion, many of the reforms they offer are nothing more than public relations exercises. However, the goal of "credibility" does open up an area in for engagement by political parties, community groups and other formations in civil society - the groups which could, in some senses, impart the desired legitimacy.

The organisations of the democratic movement in South Africa, when concerned with policing issues, have traditionally had the accountability of the police as their prime concern. This arises partly as reaction to the gross abuses of power committed by the SAP, against members of the democratic movement. It is supported by an accumulated body of academic and legal material which focused on human rights in relation to policing, and a persistent suspicion of the repressive capacity of any institution.

Accountability is seen as desirable at a number of levels simultaneously (Police Policy Group 1992):

  • Accountability to the law, the courts, a new democratic Constitution and a Bill of Rights.
  • Accountability to democratically elected government, at central, as well as regional or local level.
  • Accountability to a professional code and set of standards.
  • Accountability to the local communities which the police serve.

If, as some sections of the SAP seem to believe, credibility is an end in itself, then credibility for the police institution is only possible and deserved when that police force is prepared to make itself fully accountable. Civil society groups, particularly those currently involved in the Peace process (see below) are therefore striving to create and enforce mechanisms of police accountability as a basis for any further police reform. Only once such mechanisms are in place and themselves credible, will police actions or reforms result in increased legitimacy. Weitzer has argued that reforms in mechanisms of accountability and consultative arrangements with civilians are "several steps removed from the sharp edge of policing on the ground" (1993:10), and the priority areas for reform should, instead, be security policing and law enforcement (ibid). I would suggest that effective policing - especially the containment of violence, which will be crucial to the success of the political transition - is not possible until those mechanisms of accountability and consultation are functioning satisfactorily. The prospects for meaningful, long-term transformation (and credibility) of the police depend on a foundation of accountability and consultation.

Police Reform in South Africa Since 1990

The SAP strategic planning process

In the first gesture of reform aimed at the police, the State President and his Ministry of Law and Order announced early in 1990 that the police force was to be "depoliticised". This, it was suggested, would require two types of action: members of the police force would no longer be permitted to belong to any political party or organisation; and the government would cease using the police force for party political ends. Although many observers regarded this as a watershed in the history of the SAP, it was clear that "depoliticisation" would not be quite such a simple matter. Holding membership cards to a political organisation is the not only way of expressing political sympathies. Popular memories of brutal and racist policing, combined with a deep historical mistrust of the SAP, created overwhelming scepticism about the ability of the police force to ever act in a non-partisan manner.

The SAP have been involved in a process of Strategic Planning since De Klerk's political reforms were announced over three years ago (see Marais & Rauch 1992). Some of the reforms announced in 1991 have even earlier origins in police strategies developed during the States of Emergency in the late 1980s (Rauch 1991). Examples of these are the restructuring of the force, which took place in 1991, and included the renaming of the notorious Security Branch (now falling under the division for Crime Combatting and Investigation) and Riot Squads (which became the "Internal Stability Units").

Despite other initiatives (see below), the SAP's Strategic Planning process continues to generate the police force's internal discourse of reform. At points, SAP strategists have even claimed credit for "external" reform initiatives (such as the National Peace Accord). This illustrates the police's fear of external, non-state interventions, and indicates a contest between state and civil society over the transformation of policing in South Africa. Despite a traditional suspicion of "outsiders", SAP strategists have found that the co-option of civilian, and particularly foreign, expertise can be extremely useful in providing both technical input and legitimacy. This is evidenced in the transformation of certain managerial posts within the SAP to civilian posts (eg in the Human Resource Management Division), and in the use of outside "experts" in the International Committee looking into the reform of police training and the international team which will be tasked with implementing new training methods.

The Goldstone Commission

The Standing Commission on the Prevention of Public Violence and Intimidation (the Goldstone Commission) has also utilised foreign expertise to make assessments and recommendations on policing matters. Two examples of this are the use of British academic Peter Waddington to assess police performance in the wake of the massacre at Boipatong in June 1992, and the creation of an "international panel" to recommend a new policy on public order policing on behalf of the Commission. These interventions have been extremely fruitful, although they have also been regarded with deep suspicion and resentment by the police. Again, the Goldstone Commission has taken initiatives which would previously have been the sole preserve of the State.

The National Peace Accord

The most significant package of police reforms to date was contained in the National Peace Accord of September 1991. The Accord was signed by all the major political parties in South Africa, as well as by the Government and the SAP. This remarkable agreement created a number of structures for resolution of disputes at the local level, based on the participation of members of the local community, and set new standards for police accountability and conduct.

1993 has seen the eventual operationalisation of all the policing aspects of the National Peace Accord which include the following:

  • A new Code of Conduct for the police, which emphasised impartiality and professionalism. Every member of the police force was required to sign the new Code as a declaration of commitment. Despite the SAP's claims that the new Code did not differ in any significant way from previously existing codes, there was considerable resistance within the organisation, with entire units, in some cases, refusing to sign the new Code.

  • A new civilian office for receipt of public complaints about the police. Although the Accord made provision for these "Police Reporting Officers", the officials were only appointed over two years later (in 1993). The (decidedly unsatisfactory) definition of the role of the Police Reporting Officers was a compromise outcome of a contest over the principle of civilian management of the police complaints procedure. I would argue that the police's traditional resistance to civilian scrutiny, adjudication and review of complaints indicates that this is a prime area of contest between the police and civil society. Weitzer illustrates the SAP's resistance to the notion of an independent complaints mechanism with a choice quote from a senior SAP General - "It would be a sad day in any country when you have to have a body to police the police. (Weitzer 1993:3)

The lengthy delay in appointing these complaints officers was followed, in some regions, by conflict between the Reporting Officers and the SAP over differing interpretations of their role as outlined in the National Peace Accord. A central point of conflict was whether or not the SAP could decide whether a complaint should be investigated by the Reporting Officer. Problems also arose over whether the Reporting Officers should be given free access to SAP dockets. These issues continue to be the subject of negotiation between the police and the reporting officers.

  • A new police unit to investigate allegations of police misconduct. These detectives work with the Police Reporting Officers, but fall under the command of a police General at SAP headquarters.

  • An instruction to consult with communities, through the Local Peace Committees, or with community leaders, about "the efficient functioning of the police in that community" (National Peace Accord 1991:11). This aspect of the Accord, which some claim as the basis for "community policing" in South Africa, falls under the heading of accountability:

The police shall be guided by a belief that they are accountable to society in rendering their policing services and shall therefore conduct themselves so as to secure and retain the respect and approval of the public. (NPA 1991:11)

The Peace Committees proved, in some cases, to be useful forums for police-community engagement, because they were not initiated or owned by the police, and were generally focused on immediate problems of violence prevention and community safety. The police's lack of training and skill in problem-solving, and their general inefficiency were immediately seized on by the community. At the outset of the process, the police often felt "under attack" in the Peace Committees, and bad police-community relations often proved to be the stumbling block to the whole process of creating local peace. For this and other reasons, it has now been recommended that each Peace Committee creates a sub-committee on police-community relations, in order that those issues do not "pollute" the entire peacemaking exercise. However, this requires a doubly-committed civilian membership of the Local Peace Committee, or twice as much capacity in the local community, to run what will essentially be two parallel and overlapping processes of negotiation.

A National Police Board, created to advise the Minister of Law and Order on matters of police policy concerning the "training and efficient functioning of the police, with a view to reconciling the interests of the community with those of the police" (NPA 1991:13). This body is made up of equal numbers of civilian and police members, and has no powers to see that its recommendations are implemented. Despite its limitations, it is an interesting arena of interaction between members of police and civil society. The Board itself has been a victim of the SAP's quest for legitimacy. The Ministry of Law and Order has claimed that the Police Board is an example of "community" participation in police decision-making, and that therefore the mere existence of the Board, enhances the credibility of the SAP. In fact, the board has no decision-making powers and even its civilian members could not be said to be representative of "the community". The SAP's vast quest for legitimacy will continue to raise questions of co-option for civilians who do get involved in negotiation with the police.

Although we have criticised the weakness of the Peace Accord provisions on policing elsewhere (Marais & Rauch 1991), there is no doubt that the implementation of the measures set out in the National Peace Accord mark a new era in police-community relations. For the first time, violence-torn communities around the country are engaging with the local police on issues of community safety. This was new territory for the police, who struggle with both the concept and process of consultation. The evolution of the Peace Accord structures also highlighted the relative weakness of civil society in relation to the policing issues. However, enormous progress has been made in some parts of the country since the Peace Accord was signed in 1991. The process has been extremely uneven and precarious, differing in various localities according to the strength of political parties, the depth of conflict, and the personalities of individual police officers, politicians and peace workers.

The SAP's community relations initiative

A significant new approach was adopted by the SAP at the end of 1992 - that of "community supported policing".1 This involved the creation of a sixth division within the force - the Community Relations Division. This division consists of a fairly large headquarters staff, whose task is to spread the doctrine of community-supported policing throughout the SAP; and a number of "community police officers" in the regions, who act as liaison with community groups and attempt to set up consultation forums.

Although the community relations initiative is undoubtedly extremely important, it is plagued by a number of problems (for more on these, see Marais 1992). The fact that "community supported policing" is the preserve of one division, rather than a philosophy adopted by the whole force, means that it is structurally marginal, and outweighed, in some senses, by the traditionally military approach of the SAP. In practice, there has been considerable resistance to the new philosophy within the force, and some members of the new division have become personally vulnerable.

The police also initially failed to understand that "community liaison" or consultation forums which they initiate, chair and direct, are doomed to failure. This initial desire to control such processes has its roots in the doctrine of police authority, on which the policing enterprise rests in South Africa (Steytler 1991). Although any police force is undoubtedly in a position of authority and power in relation to civil society, this dynamic in South Africa is deeply politicised. It draws on images of the moral authority of good over evil, of civilisation over barbarism, order over chaos. These images are reflected in the language of apartheid, particularly the discourse of "the enemy" which still pervades police culture (see Rauch 1991b). Many members of the SAP have been unable to reconcile the new discourse of community policing with the old ideas of police as the all-powerful definers and protectors of public order.

The police also tend to labour under a naive approach to the problem of community. When talking about the new style of "community-supported policing", police officers are seldom able to address the question "what is the community?". In some senses, their new initiative is an based on a sense of community, which the police, under apartheid, were instrumental in destroying.

"It is unlikely, to say the very least, that the very same interests and forces which destroyed the traditional community - bureaucracy, professionalisation, centralisation, rationalisation -can now be used to reverse the process. … Nothing can disguise the fact that such projects have very little to do with the evocative model of community to which they continue to appeal" (Cohen 1985:124).

The model of "community supported policing" is based on a rather simplistic interpretation of British and North American models of community policing. SAP policy-makers have managed to ignore the differences between South Africa and these advanced democratic states where citizens have rights, political representation, mechanisms of accountability at all levels of government etc. The aspect of inter-agency co-operation is also underdeveloped. This problem is exacerbated by the absence or collapse of many state bureaucracies (eg education and local authorities), especially in black residential areas. They have also failed to take into account the various organic traditions of self-policing, such as "people's courts", and to draw from these some important aspects of indigenous community policing.

However, despite these weaknesses, the SAP's discourse of community policing opens up a new space for civilian engagement with the police. The need for local communities being involved in determining the type of policing they receive is vital, especially during the upcoming election period.

Government responses to political pressure

Towards the end of 1992, after a number of scandals which implied that the reactionary nature of the security forces could become a threat to the transition process, the Government initiated a purge of old conservatives in the SAP and the military. A large number of senior white officers in the SAP took advantage of the offer of "early retirement", rather than face the prospect of serving the ANC, their traditional "enemy". Four black men were among the new generation of generals appointed to replace them. This was a symbolic gesture to address the concern that the officer corps remains predominantly white (95% of officers are white), while, in fact, the bulk (60%) of serving members of the SAP are black.

In July 1992, Dr Jonathan Gluckman, a respected pathologist, spoke out about the number of people dying in police custody. The ensuing furore resulted in the Minister of Law and Order agreeing to the creation of a Lay Visitors scheme, along the lines of the British model. The development of policy for this scheme was taken up by the Police Board and by Peace Committees at regional and local level. In July 1993, the Wits-Vaal Regional Peace Committee (based in Johannesburg) unveiled its proposals for a lay visiting scheme in the regions. The SAP put a proposal concerning lay visitors to the Police Board.2 The Police Board chose to adopt the SAP's version as a pilot scheme for six months, after which period, amendments from peace structures and from the experience of running the scheme will be taken into account and the policy will be re-drafted and finalised.

There are a range of other civilian interventions into policing beginning to develop across the country. Because of poor communication and co-ordination, there is no central record kept of community-police interactions. Some of the most interesting initiatives, which are resulting in meaningful changes, are taking place in small, isolated rural towns. However, in some of the major urban centres (for example in Cape Town), an integrated approach to tackling the problems of policing and police-community relations is beginning to develop. This is largely taking place in the space created by the Peace Committees or the community liaison forums.

Civil Society and the Transformation of the Police

A critical component of democratic transformation in the third world is the development of a vibrant civil society, and not merely support for the formal institutions of multi-party democracy. Without the institutions of civil society, there will be no dispersal of power through society, nor will new state forms be accountable to the public. While it may be true that civil society itself requires a strong, resilient, democratic government; strong, robust and effective government also requires robust civil society institutions. (Haysom et al 1993:16)

Meaningful transformation of the police institutions in South Africa cannot take place without strengthening civil society capacity on policing. This capacity should comprise of local associations of individuals and organisations who engage with their local police in an ongoing and systematic manner, backed up by a civilian capacity for monitoring, research and policy development. Activist skills (such as networking, lobbying, training, organising) abound in South Africa, the products of a long political struggle and a well-endowed NGO sector. However, these resources have not yet been trained on the police, for historical reasons:

  • A legacy of suspicion, hatred and fear of the police - the product of police actions in enforcing apartheid laws for over three decades. This is more than an ideological problem - a vast proportion of the political activists who are likely to form part of the new government were themselves detained and tortured by the SAP. In a research project in one city, it was estimated that some 70% of African men in the area had been detained by the police at some time (Rauch & Simpson 1993). The result has been a distaste for engagement with the police.

  • A strong tradition of resistance to and non-cooperation with any part of the state. Haysom et al cite a former activist's explanation: "One of the most appreciated merits in the resistance period was to act openly against the state; to cheat the authorities, to evade the law was considered bravery. This attitude helped us to survive; to preserve the autonomy of thinking, opinion and judgement; and to become the frontline soldiers of the political changes. But the same attitude is a source of several problems in the transition process". (cited in Haysom et al 1993:13)

In addition to these historical factors, there are features of the transition to democracy in South Africa which have also combined to incapacitate civil society in relation to policing:

  • One of the debilitating effects of a lengthy political transition is that attention is ever-more-narrowly focused on the transformation of the state, as the ultimate objective and proof of change. Also, the longer the process, the more a sense of urgency develops. Programmes which are likely to be lengthy and demanding of resources, such as capacity building in civil society, are less likely to gain top-level political sanction than those which promise quick results or the prospect of speeding up the political process.

  • The transition period in South Africa has been marked by violence, in which the police are both part of the problem and (potentially) part of the solution. Many communities have been devastated by what amounts to protracted civil war. The extraordinary conditions sometimes require actions on the part of the police which are unfamiliar or unacceptable to the community. Also, the real threat to police officers' lives leads to a tendency for the police to resort to defensive and paramilitary tactics. These factors, combined with popular dissatisfaction with the police forces' ability to bring an end to the violence, reinforce suspicion and hostility between police and public.

  • Despite the numerous police reform initiatives which have been launched in the last three years, ordinary citizens have seen little or no improvement in police service. Poor quality of service, is, I would argue, the central cause of public dissatisfaction with the police. Because all branches and levels of government have traditionally been impervious to public criticism, there is often a feeling of resignation and disempowerment among the citizenry. Although this sense of profound cynicism with government bureaucracy may be reduced by the opportunity to exercise power through the vote for the first time, it does limit enthusiasm for engaging in "struggle" during the transition period.

  • The project of developing civil society capacity requires substantial resources. At present, the bulk of support for the NGO sector comes from foreign aid sources. In terms of policing, many foreign donors, especially governments, are beginning to focus their donations on projects which will have a transformatory effect on the police forces themselves. It is likely that much foreign aid during the period of interim government will take the form of police-police aid - for example, sending foreign police trainers to South Africa, or taking South African police for training abroad. This will further weaken civilian capacity to engage in the transformation of the police and reproduce the relations of inequality between police and public to which I referred earlier.

True community policing cannot be realised unless national democracy and the culture and mechanisms of accountability are established. Consultation alone does not necessarily have a transformative effect:

Because they do not have enough information or professional advice, the consultative groups are not able to engage in an intelligent discussion on equal terms with local police managers about policing policy and practice. As a result, the discussion tends to be ritualistic. Once a group has got through the early stages, (in which there will be a fair amount of anti-police posturing in left-wing areas), it will generally become a means whereby the police confer legitimacy on the policies and practices they have decided to adopt. (Smith 1987:60).

Consultation needs to be matched with accountability at a local level - these are not one and the same thing. The draft interim constitution ensures police accountability to the regional and national governments, but falls short of specifying local mechanisms for police accountability. It does, however, make local authorities responsible for managing the process of police-community consultation, which may be a valuable impetus and allow for specific accountability arrangements to be designed at a local level.

What is important, then, is to develop the capacity of civil society to achieve, in relation to the police, what Haysom et al describe as its objectives - "to influence, bring to account, contest where necessary, [and to] extract resources from, state bureaucracies" (1993:28). In order to achieve these objectives, a number of strategies will need to be pursued in parallel:

  • Education and training programmes for civilians involved in engaging with the police. These programmes should aim to transmit the basic principles of policing and accountability, and an as well as examining some of the dilemmas of policing South Africa today.

  • Public education about the criminal justice system as a whole, and about the police in particular, is of vital importance.

  • Forms of traditional, indigenous or informal policing should also be subject to public scrutiny and accountability. It may be appropriate, in some cases, to consider how these could dovetail with the formal police institutions. In this way, existing civilian capacity on policing could be excavated and utilised.

  • Some form of information and resource sharing should be instituted among local groups engaged in negotiation with the police. The structures of the National Peace Accord provide one potential avenue for such co-ordination.

  • An independent research and policy-development capacity will need to be maintained, either through existing institutions (eg universities) or as part of the networks suggested above. Attention will need to be paid to ensuring that policy and research is fed back into local associations and networks.

  • Resources would have to be found for the above projects.

  • An onus or duty needs to be placed on the police to consult with civilian groups. Although the Peace Accord does suggest this, I would argue that such a duty would be more effective if inscribed in law, as with the British Police and Criminal Evidence Act. Haysom et al argue that giving the public broad constitutional rights to be consulted prior to the exercise of administrative decision-making powers, would significantly empower the institutions of civil society. Such a process would "undoubtedly enrich public debate and promote transparency" (1993:47).

Civil society in South Africa is particularly disempowered in relation to the State because it has been denied fundamental rights and mechanisms of political expression. To argue in the current context, as a senior SAP General has done, that "communities get the policing they deserve", is to turn a blind eye to the past. Although the emergence of a democratic state in South Africa will neither solve the policing problems nor strengthen civil society overnight, it will put in place avenues for expression, accountability and recourse. These are vital tools in the hands of a civil society concerned to transform its policing and improve its quality of life.

In addition to the mechanisms of democracy, a constitutional package and "culture" of human rights are also essential:

The fortune and welfare of civil society institutions depends on the success of the broader human rights project … such rights constitute a foundation for civil society. (Haysom et al 1993:53)

In this section of the paper, I have pointed to the need to empower civil society and build civilian capacity to engage with the police. This requires the state to relinquish some of its traditional control over formal policing in order for the process of transformation to begin. As has already been pointed out, a major obstacle here is the traditional notion of authority which underpins South African policing.

In the same way that "strong, resilient democratic government requires robust civil society" (Haysom et al op cit), so effective and accountable policing requires strong civil society. However, right now, this seems something of a contradiction in terms - the South African Police are deeply suspicious of strong communities, both for fear of undermining their professional status, and having civilians informed enough to engage with or dictate policy, and because, in the recent historical context, strong communities were "the enemy" against which the police were deployed. Communities are not only disempowered, but reluctant, to engage with the police. Ultimately, only political resolution and social reconciliation will allow this discourse of "enemies" to subside and for policing to become a high priority issue on the community development agenda.

Notes:

1 Sectors of the SAP shy away from the international term "community policing" - instead, "community-supported policing" retains the image of the police in the position of authority.

2 Their document was a transcription of the British procedures - taken almost verbatim from a Home Office circular. This demonstrates that the police have the resources to come up with sophisticated policy, or at least to "borrow" it from police forces abroad.

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