It is time for the nation to roll up its sleeves and act pro-actively to deal with crime. It is after all everyone’s problem that crimes, especially violent types of crime and corruption, have reached the unacceptable levels which the, admittedly dysfunctional, statistics gathered reveal. It is quite conceivable and indeed probable that the problems are more widespread and deeper than the figures show. It is also nothing short of scandalous that so few crime scenes are attended by forensic investigators and so few detectives are available to investigate crimes properly. The knock on effect of these basic short-comings is felt when cases are throw out of court for want of proof or are repeatedly postponed for “further investigation.”
A word of caution is however necessary. The hard won constitutional structures in place for our security services and the administration of justice are set out in Chapters 8 and 11 of the Constitution. They have been carefully crafted and form an integral part of the historic compromise that is at the core of our national accord. This informs our new democratic system of government under the rule of law and, in particular, the Bill of Rights which promises dignity, equality and various guaranteed freedoms to all.
In reforming the criminal justice system sight must not be lost of the values, the structures and the checks and balances which have been carefully put in place in our new Constitutional order. The principles according to which reform is planned and launched have to accord with these considerations. If they do not, they will be rejected as unconstitutional in challenges that the criminal suspects will no doubt bring in court. The first reform now before parliament, the proposed dissolution of the scorpions, is already the subject of a constitutional challenge to be heard in the Constitutional Court. There it will be contended that the very idea of getting rid of this independent and highly efficient unit is irrational, unreasonable, unconstitutional and potentially a reasonably apprehended violation of several of the rights guaranteed in the Bill of Rights. The concerned members group of the scorpions told parliament that disbanding their unit will set the fight against crime back 20 years. This is hardly an auspicious start to the process of reform.
However it is patently obvious that reform is necessary and ought to be effected in a constitutionally compliant way. The answers are not easy to come by; the notion that one size fits all which seems to underlie the principles unveiled by the Deputy Minister, according to which reform will be carried out, is not a scientifically sound one. The incidence and rate of crime varies widely from province to province. The is no abalone smuggling in Limpopo, no faction fighting in North West, no Cape Flats gangsters are found in Gauteng and so forth. The constitution recognizes this. Crime policy is meant to be a province by province affair. It is not, and has not been, under the centralized thinking that has been the hallmark of the Mbeki years now drawing to a close.
The best possible way in which to initiate decent and lasting reforms is to invoke section 206(5) of the constitution and appoint a judicial commission of inquiry in each province in which the crime situation warrants it. A senior judge with long experience of the criminal justice system should be assisted by international experts in crime prevention and combating. All interested parties should be given the opportunity of having their say and presenting their problems to the inquiries. There are many in the NGO sector who have worked long and hard for the day on which they would be allowed to make a positive scientifically based contribution towards a solution to the dysfunction now acknowledged. The Institute for Security Studies and the Centre for the Study of Violence and Reconciliation both have valuable contributions to make, as have many others such as Business against Crime and the many Community Policing Forums which exist across the land. Obviously the NPA and SAPS will contribute too.
The beauty of approaching the problem this way is that the people get the opportunity of pointing out where exactly the shoe pinches, the experts get the chance to put their views and to be challenged on them and a wise head gets to make recommendations to the province concerned which are sure to be scientifically based and constitutionally sound. A win-win situation, if there is the sustained political courage not only to admit the dysfunction, but to put in place a process of initiating reform which is people driven, under the auspices of a Judge in a dispassionate a-political fact finding environment and in which the rule of law and the values of the Constitution will be best served.
More than a year ago the Mayor of Cape Town called upon the then Premier, Ebrahim Rasool, to appoint such a commission of inquiry. He declined the request, no doubt caught up in the state of denial which has now ended with the Deputy Minister’s brave announcement. Has the time not come to renew that call in the light of the changed circumstances?
Dr David Klatzow,
Adv Paul Hoffman SC
Former member of the Cape Bar.