Democracy v securocracy: clarity’s urgently needed
‘The one issue that has not come up… is the responsibility of security force members who obey orders that may be unlawful…’
NOT FOR the first time in democratic South Africa’s history, we are confronted with an interaction between security interests and democracy. This time, however, the two cases of last week are so stark, linked as they are to parliamentary proceedings themselves – the very heart of our democracy – that we are on new ground.
The issues could hardly be clearer. The events last week may herald an unprecedented period of political disruption in our country. It is a period when the role of the security forces and their relationship to politics and the citizenry more generally will need to be carefully framed by the law.
They also show only too clearly that “grey” areas will be exploited and need to be clarified by the courts. The one issue that has not come up – and may still well do so – is the responsibility of individual members of the security forces who obey orders that may be unlawful, or are at least in a zone of ambiguity. That interaction takes place on two levels: first, if instructions are given by a politician to a senior police or security service officer and, second, when those instructions are conveyed further down the bureaucracy.
Take the issue of the use of police to remove a political party from Parliament. By all accounts, officers from several police units were used. They practised, using the faces of individual parliamentarians, so the intention was clear. It has been reported (although not confirmed) that several of these officers said they signed a declaration of confidentiality and with it an apparent guarantee that they would not be prosecuted for their actions.
If that is true, it is a grave breach of democratic policing. In a functioning democracy, any police commissioner worth his or her salt would have asked for a legal opinion from the service’s lawyers as to what the role of the police would be and acted on it. That response would have been clear:
“The legislation has some grey areas, we work on the parliamentary precinct subject to the permission of the Speaker, and we can only intervene ourselves if there is immediate danger to life and property.
“The Speaker cannot order us to do unlawful things – like physically manhandle someone for a breach of parliamentary protocol (while perhaps an affront to some political parties, it is not a crime). Commissioner, we strongly suggest – given this, and the criticism we as a service are likely to face – that we do not get involved, or stay our hand until there is violence or damage to property.”
That clearly did not happen. And if it did, the advice was ignored. What it leaves – at the second or lower level – is ordinary members of the security services exposed.
When the dust settles, fall guys will be found. When the pressure mounts, will individual officers be charged with assault for last week’s events? A concession by the ruling party that what needed to be done was done, but too roughly? We have been here before: think of the military officers responsible for the management of Waterkloof Air Force base.
They must have a feeling of damned if you do and damned if you don’t. Similar questions arise with respect to the cellphone-scrambling device. The ANC has been quick to criticise its presence, although significantly did not do so in Parliament on Thursday last week. It now emerges that the device belongs to the State Security Agency and was ostensibly for the president’s protection. It was telling that it was used for the first time at a State of the Nation address, though.
So all the political parties now agree on one thing: that we must get to the bottom of this, who ordered it, and who did it. If the State Security Agency lawyers had been consulted in an ordinary democracy, the answer should have been unequivocal: “Director-General, it is illegal to scramble cellphone signals under the provisions of the Icasa regulation (which is published here in this Government Gazette of November 2002).
And, if we do so, we are also in breach of provisions of the constitution which allow transparent public and media access to the proceedings of Parliament. There could be significant political consequences.” That did not happen, or again, at least, the advice was not listened to – if it was given at all. Our point is that there has correctly been a lot of focus on the political and constitutional implications of the goings-on in Parliament last week – and with it the ducking and diving of politicians.
But connected to that, of course, is an analysis of individual members of the security forces and how they operate within public and political spaces. One member of the public order police who participated in the parliamentary scrum stated openly on his Facebook page that he was “on the hunt for Juju” and, previously, that he would be back for “old Julius”. Incredible.
How have we failed to educate the police and the broader security community about the limits in which they operate? Our law and international standards are clear: individual members of the security forces should not engage in unlawful behaviour, even if ordered to do so. Yes, there are often “grey” areas as, arguably, in this case, where individual police officers, in contrast to their superiors, are unlikely to be able to immediately discern what is legally correct and face pressure to act, but the mixing of politics with security as we saw in Parliament last week is a slippery slope.
What would ordinary police do if ordered to break up a legitimate political meeting? Obey blindly? Or seek the order in writing from a higher level? Or, write which politician they will target next on their Facebook page? The culture of our security agencies has remained all too similar to the past. Politicians call the shots and the officials respond.
Security organisations have a responsibility to the members not to place them in positions where they commit unlawful or ambiguous acts, or threaten the very democracy they are meant to protect. And, as usually is the case – and our history demonstrates only too well – those who will take the fall are those who did the actions, and not those who ordered them. Despite all the efforts during our transition to create a set of working security institutions under civilian authority and outside of the framework of political interference and abuse, we have seemingly failed.
It is time to re-instil those ideas, not only in the ruling party, but within the security institutions themselves. It is time once again for a serious discussion about the limits of executive authority over security services, the need for the police in particular to have operational independence within the framework of the law, for intelligence services not to be used for political purposes, and to better educate individual members as to their responsibilities – not to the political party in power, but to the constitution to which they swear allegiance.