Strengthening Police Oversight in South Africa: Opportunities for State Civil Society Partnerships. Sean Tait

Transcription

1 Strengthening Police Oversight in South Africa: Opportunities for State Civil Society Partnerships by Sean Tait Sean Tait is from the Criminal Justice Initiative at the Open Society Foundation of South Africa. 1 I would like to use this presentation to talk about the work of the Open Society Foundation for South Africa, which, in partnership with the Open Society Justice Initiative, has been working for the past two years on a project to strengthen police oversight in South Africa. Our project is characterized by two key aspects: first, it has worked through a process based in dialogue and stakeholder participation to identify issues and activities; and second, it has sought to partner with civil society and working through civil society, reinforce civil society capacity in this area while also supporting and strengthening state police oversight agencies. In order to reflect a little more on the challenges and on what our project has achieved to date, I want first to look back at the development of policing oversight in the South African transition and reflect on the civil society role. Open Society's research and consultation in developing the project on accountability and oversight quickly identified critical intervention areas. These included capacity issues, unclear legislative mandates and problems around access to information, etc. What was a surprising find in this process was the reluctance by civil society to become involved. Policing Oversight in a Changing Environment During the initial years of the South African transition to democracy, police accountability formed the core of a policing transformation. This was understandable. The police had been used to enforce apartheid policies and now bringing them under democratic control was essential. They continued to compose a larger armed force that had been loyal to the previous government and their acceptance of the new order was uncertain. The relationship between the police and the communities they were to serve was also one of suspicion and hostility and building accountability at local level was seen as one way of building the new police service. Community policing became the operating philosophy of the day. This period saw a number of oversight mechanisms established. At local level Community Police Forums were set up at each station. At provincial and national level Secretariats for Safety and Security were established to strengthen ministerial control over the police and monitor service delivery and compliance to policy. Nationally, an Independent Complaints Directorate (ICD) was established to investigate all deaths in police custody and as a result of police action as well as cases

2 of alleged criminal misconduct. Complimenting this were constitutional provisions for Parliamentary oversight and so called "Chapter Nine" institutions such as the Human Rights Commission and the Public Protector, each having a certain oversight jurisdiction over the police. By 1999 however the reality of high crime rates and resulting political pressures were evident. Police morale seemed to be low. Government responded by adopting a tougher approach to crime. The debate on accountability shifted during this time and was one characterized by contrasting and comparing accountability and effectiveness and of the rights of the victim against that of the offender. According to researchers Gastrow and Shaw, 2001, "as result of governments new stance on crime, official oversight of the police was scaled back". 2 The most significant casualty was the downgrading of the National Secretariat for Safety and Security. The police themselves reinforced this scaling back on oversight by retreating from the initial period of openness that characterized the early days of the new South Africa and consolidated around the development and implementation of their own controversial crime-combating strategy. This came at the expense of the more rightsfriendly attempts to address crime espoused in earlier policy statements, such as the National Crime Prevention Strategy (1996) and White Paper on Safety and Security (1999). Such was the scenario that faced the Open Society Foundation of South Africa and the Open Society Justice Initiative when they decided to invest in strengthening policing oversight in South Africa. The project sought to understand the state of policing oversight in South Africa and contribute if necessary to any interventions to strengthen it. Civil Society in a Changing Environment I want to turn here to reflect a little on the role of civil society and relationship with government that has evolved over the last ten years, and the model of governmentcivil society partnership has become somewhat strained in recent years. During the transition, the partnership model of civil society-government relations predominated. During the struggle years civil society provided a natural home to many of the cadres who would eventually form part of the new government. This relationship lent itself initially to unprecedented and open partnership. Many NGOs had aligned their work to the ongoing transformation of the state taking on projects in support of and in partnership with government. Initially, this worked well but as government confidence and capacity grew they took increasing ownership of projects and policies, driving issues from the state. This is not only appropriate but necessary to effective governance. However, some have worried that government has also become less tolerant of dissenting views, and irritated by critical stances from civil society groups. Thus, over time, there has been a cooling off of the relationship. On one hand, as noted, this cooling off was to be expected as the elected government, into its third term, developed increasing confidence to govern. On the other, as

3 democratic government has consolidated itself, the civil society role has also evolved, taking on a more of a watch-dog, critical and even adversarial role. The issues around HIV/AIDS, land and crime have polarized government and civil society positions, and created tensions, particularly where cases have been litigated. In cases where the civil society positions were such that they could not easily form cooperative arrangements with government open conflicts emerged. For some civil society actors, it could seem that they were faced with a crude dichotomy of critical opposition or subservience to the state. Civil society groups play a great any roles, varying from country to country, but roughly we can identify the following array of approaches from actual service provision paid for by governments or other donors, to research and policy inputs both commissioned by government or independent, to oversight, monitoring and advocacy, through litigating issues through the courts. Many would argue that in a healthy and vibrant democracy, there will be civil society groups playing all these different roles, all of which are legitimate, but which will, of course, generate different kinds of relations with the state reflecting the kinds of activities that are undertaken. So, in South Africa, these changes are natural and, in hindsight, were to be expected in a rapidly evolving environment. But that is not to say that they have been easy. There is a significant emotional impact because these changing roles implied a rupture in what had been extremely close relations and alliances around common values. Furthermore, NGOs were suffering from very practical financial constraints as donor funding, previously channeled through NGOs, now increasingly went through government in the form of bilateral agreements. In the realm of policing oversight the situation is alarming. Civil society represents a key actor and often driver of oversight. Its activism and advocacy has often led to significant developments in oversight, often in response to high profile events. A limited civil society involvement in oversight will hamstring civilian oversight even under favorable conditions and more so in an unsympathetic and conservative political environment where tough law enforcement is seen as the answer to very serious crime problems. Initial needs analysis workshops held in 2002 and 2003 confirmed the reluctance of civil society to engage. This was explained in part to burn out and limited organizational capacity, but also to the concern that carefully nurtured partnerships with the SAPS not be jeopardized by a less than cautious engagement on oversight issues. To a large degree, official civilian oversight was in the same boat, having negotiated their space and built relationships in often difficult circumstances, they now confronted a less sympathetic political environment, in which many actors now perceived conflicts between the demands of oversight and the changed policing environment. The South Africa situation was even more concerning when seen against the backdrop of local level community oversight. The Community Police Forums initially set up to build accountability and transparency at local stations had from the outset been given two opposing mandates, that of partners and that of overseers. The oversight mandate never really materialized leaving a considerable gap in the policing oversight architecture. This continues to exist and a project within the broader programme to engage on this never got off the ground, partly due to local CPF reluctance to upset the partnership relationships they had with local police.

4 Given this background, it is tremendously rewarding that one impact of the project is an emerging partnership between government and civil society in one of the most politically sensitive and contested terrains that of policing oversight. The Need for Oversight Before turning to tell you a little more about the project itself, I want to make the argument for oversight today. The results of the SAPS Crime Combating Strategy have been mixed. The 2002/2003 statistics released by the SAPS seem to indicate a leveling off of crime figures. 3 However, feelings of safety have declined and are considered low in comparison to other countries. South Africans are now more afraid of crime than ever. 4 The ICD have also seen substantial increases in cases, against the police, reported to it. 5 While the ICD attributes the increases to increasing levels of confidence and awareness of the ICD it is conceivable that some of these incidents can be attributed to the "tougher stance on crime "being advocated in policing circles. 6 In the meantime, South Africa has also seen significant growth in other and non state policing. Municipal Police Departments have been established in five of the larger metros and one district municipality. Three other municipalities 7 have indicated their intention to establish Municipal Police Departments. The private security industry has also expanded rapidly over the last decade and now stands at almost 4 private security members to every SAPS member. 8 In addition most South Africans, (61%) participate in volunteer neighbourhood watches and anti crime organisations. 9 Thus added to a general feeling of insecurity and increased charges against the police for misconduct, the policing arena itself has become increasingly filled with new agencies and community protection formations. It is very clear that good oversight is needed to make sure that police service delivery is as good as it can be, and to assure that the guarantees and principles of democratic policing are being respected in the process. The Open Society Project The fact that the project has succeed in its initial stages is largely due to the methodology adopted. The broad goals of Strengthening Police Oversight were set out and the subsequent interventions filled with regular consultation between the Open Society and civil society, civilian oversight and the police. Civil Society and Civilian Oversight agencies were brought together to define a needs list and then subsequently meet on a regular basis to review progress. This not only built ownership but also created the much needed space to debate the policing oversight agenda. Each of the projects identified has taken the oversight debate forward and in certain instances adding to the development and strengthening of oversight. Most have been carried out in partnership with relevant civilian oversight agencies.

5 A review of the oversight committees in local government that have responsibility for the oversight over municipal policing agencies by the Centre for the Study of Violence and Reconciliation has identified critical short comings and has placed the issue of municipal police oversight firmly on the agenda. A website on Police Accountability managed in partnership with the Institute of Criminology at UCT provides a comprehensive database of police accountability literature, current events and documentation of the oversight infrastructure in African countries and beyond. The history, academic debates and current events relating to police oversight are available at the finger tips of lay persons and experts. The development of a set of 'indicators for democratic policing' by Centre for the Study of Violence and Reconciliation set out to provide a new framework within which to assess police in a democracy. All too often we are bogged down in our assessment of policing by fixating on crime statistics. This is only one aspect of understanding how well the police are performing in a democracy. The indicators set out to provide and balanced view on policing that will be of benefit to all practitioners in the field. The establishment of the Proactive Monitoring Unit within the ICD promises much with regard to improved monitoring as well as relationships and partnerships. Proactive problem solving approaches to police misconduct are recognised as being able to make important contributions to police oversight, and the need for such units is being increasingly supported internationally. The operationalisation of the unit will also include the establishment of an external reference group comprising of civil society, the police themselves and civilian oversight to identify research topics and receive and comment on the reports before release. This interaction speaks directly to a need identified in the OSF-SA's own strategy development processes, that one of the most critical issues relating to the accountability agenda is not necessarily the issue of what is to be done, but how work in this sector is undertaken. Agencies need to be made amenable to the changes that are suggested both by civil society and the respective oversight agencies. conclusion Oversight plays a critical role in ensuring the values and principles the police seek to protect are not in fact broken by them. Civil society is a key motivator and if it falls quite the impetus around civilian oversight soon wanes. On the other hand a relationship of constant conflict can harden positions. This can erode what should be a collaborative relationship between civilian oversight and civil society. It can also distance the police from the overseers making input and acceptance of recommendations for improvement all the more difficult. The project on Strengthening Police Oversight has managed to achieve in all impact areas strengthening civil society and civilian oversight and re invigorating the debate. Importantly it has also achieved in building the partnerships. This can largely be attributed to the methodology of the project which provides an important lesson for donors around who sets the agenda, who takes ownership of the interventions and the manner in which the process is managed and communicated.

6 Notes: 1 The views presented in the paper are that of the author and do not necessarily reflect that of the Open Society Foundation of South Africa. 2 Gastrow, P and Shaw, M In search of safety: Police Transformation and Public Responses in South Africa. Daedalus Since 1994, the incidence of murder has decreased by 30.7 %, and rape is at its lowest level since the establishment of the SAPS in 1994/95. There has also been a significant decrease in high profile crime such as aggravated robbery; the hijacking of motor vehicles, and bank and cash-in-transit robberies. This is supported by the 2003 ISS Victim Survey, which measures a 2.5 percent drop in the crime rate since Institute for Security Studies The cases reported in the 2001/2 financial year was up 15% on the previous year. In 2002/3 this increased 31% to and in the next by 32% to /3, saw a dramatic 88% increase in serious criminal cases against the police of which the greatest proportion 35 % were assault related. During 2003/4 report of serious criminal offences allegedly committed by SAPS members and reported to the ICD increased by 47%. 6 ICD Annual Reports , , Kimberly, Rustenberg, Mafikeng. 8 ISS Crime Index Vol 4 No 3. 9 ISS Victim Survey, 2003.