| dc.description.abstract | This paper analyses the underlying structural and functional reasons for de facto impunity in South African law enforcement with specific reference to the South African Police Service (SAPS) and the Department of Correctional Services (DCS). While the legislative framework presents no major obstacles to holding state officials accountable for gross rights violations, it remains a rare event that
officials are prosecuted and convicted for assault, torture and actions resulting in the death of criminal suspects and prisoners. The paper argues that the reasons for prevailing impunity in respect of rights violations perpetrated by state officials are found across a broad spectrum. These relate firstly to South Africa’s historical development and in particular the security forces inherited by the
Government of National Unity (GNU) in 1994. The failure by the National Prosecuting Authority (NPA) to prosecute apartheid-era perpetrators of rights violations following the Truth and Reconciliation Commission (TRC) set a particular benchmark that left victims frustrated and, more importantly, a prosecutorial approach tolerant of rights violations. Important legal and policy developments in the police and prison system faltered in material ways and this further undermined accountability. Post-1994 governments’ response to or lack thereof, in respect of obligations under international human rights law and treaty monitoring bodies left much to be desired, thus further
strengthening a perception that the state is not accountable.
At the functional level it is argued that the state has failed to regard the high incidence of rights violations as a systemic problem and rather opted to focus on managing the media fall-out when high profile violations surface. The manner in which the NPA has dealt with rights violations perpetrated by law enforcement officials clearly indicate that it is reluctant to prosecute, but it has also not been
called to account for this trend and explain the reasons why recommendations by oversight structures to prosecute are in the overwhelming majority of cases not followed. Impunity is also enabled by the erratic enforcement of the internal disciplinary codes in SAPS and DCS. Statistics show great variation from year to year, indicative that managers in these two departments do not enforcement
discipline in a consistent manner. With reference to designated oversight structures, it is observed that recommendations to these two departments are seldom followed. This is particularly the case with SAPS and the Independent Complaints Directorate (ICD). Civil litigation against the two departments in respect of rights violations result in substantial costs to the tax payer, yet the two departments have
not regarded this as the result of systemic problems and opted to contest these claims individually. As a result of de facto impunity, law enforcement is increasingly suffering from a legitimacy crisis and public confidence in these institutions are probably at all-time low. To address impunity it is required that transparency and accountability be strengthened to ensure that the transformative ideals
of the Constitution are realised. 5 | en_US |
