Seeing members of the South African Police Service (SAPS) suspiciously eyeing grant beneficiaries queuing outside welfare offices, or leisure-seekers sitting quietly on the beach in December -- as if they are criminals -- must make any constitutionalist cringe. Or indeed anyone remotely aware of South Africa's violent crime problem. Rather than doing whatever incompetent politcians tell them to do, and with the disastrous COVID-19 lockdown foremost in mind, what South Africa needs is a police service dedicated to fighting real crime.
Section 205(3) of the Constitution provides that the SAPS must "prevent, combat and investigate crime", "maintain public order", "protect and secure the inhabitants of the Republic and their property", and "uphold and enforce the law". In this respect it is important to remember that the COVID-19 lockdown regulations are regulations, often regarded as "subordinate legislation", as opposed to laws, often regarded as synonymous with "primary legislation". It is crucial to bear these distinctions in mind if we wish to conceptualise the role of a proper police service in a constitutional democracy.
We must also bear in mind the political distinction between laws and regulations. Laws are those interventions that our elected representatives in Parliament adopt through a majoritarian process with various rules and procedures, after transparent debate and discussion. Regulations, on the other hand, are those interventions that lone politicians and bureaucrats write and adopt behind closed doors. There is usually some time for public comments but these need not -- and if they are substantively critical, usually do not -- get taken into account.
The police are law enforcers, and this sacred role must not be besmirched by having the police enforce regulations -- which are essentially the hip-fired opinions of ministers.
Regulations, too, require enforcement, and indeed most people -- myself excluded -- would agree that regulations are necessary in any modern society; that is not up for dispute here. But the enforcement of regulations must be of a different nature than the enforcement of laws. I am thinking along the lines of an administrative assistant somewhere in a Pretoria highrise sending a strongly-worded letter to a regulation-breaker, threatening to review some or other licence or State benefit. What I am not thinking of, is an armed cop roughly manhandling someone or attacking them with teargas.
In practice, then, the SAPS should refuse to continue enforcing lockdown regulations unless these are adopted into law by Parliament. In the meantime, this is not to say the regulations must all be repealed, but those in the Department of Cooperative Governance and Traditional Affairs who wrote the regulations must themselves enforce them the way they should have been enforced from the start: With emails, earnest requests, and as a very last resort, an investigation that leads to a trial in court.
For as long as the police continue enforcing these regulations, they are acting in service of a small political elite and disinterested class of experts, not the ordinary people of South Africa. We appreciate the expertise medical professionals have brought to the table to combat COVID-19, but doctors and scientists are not necessarily experts in constitutional law or public policy. Their policy prescriptions, therefore, must only be considered insofar as they are consistent with the text and spirit of the Constitution.
And above all, the Constitution guarantees freedom of choice and thus requires of government to extensively justify any limitation of this freedom. I do not think the government has succeeded in justifying the lockdown limitations to a satisfactory level.
It is hugely destructive, not only to people's lives and livelihoods, but to our very constitutional democracy, to have armed police intervene in what remain open questions: Is lockdown the most effective means of combating COVID-19, and is it lawful? A people's police service would respectfully disengage from this debacle and leave the politics, debate, and contestation about the legitimacy or otherwise of the lockdown, to citizens and politicians.
To be a "people's police service" does not mean the SAPS must do whatever is demanded in the unpredictable waves of populism, but rather that the police must fulfil the function that gave rise to the idea of "the police" in the first place: Protecting the people's lives and property, not from viruses -- that is the job of medical practitioners -- but from real violence and fraud. South Africa has a lot of that going around, and it needs urgent addressing.
The lockdown has no doubt shaken many South African's trust and confidence in the SAPS. They are not universally regarded as protectors, but as violators of our rights and freedoms. This is an untenable and incredibly unfortunate position for any society to be in as regards its police service. Indeed, it could become a crisis of legitimacy. It is certainly time for the SAPS and its political masters to reconsider the range of policy objectives for which we use force and arms.
This article was first published on City Press on 4 March 2021.