The trauma of both the Covid-19 illness and death, and the securitisation and militarisation of this public health emergency, will for years be marked on bodies and communities, writes Edwin Cameron.
Soon a sombre anniversary will fall on our country.
This week, it’s a year since 11 March 2020, when the World Health Organisation first declared Covid-19 a pandemic.
On 15 March 2020, President Ramaphosa declared Covid a national disaster.
A couple days after our national Human Rights Day, on 23 March, he announced a nation-wide lockdown – among the strictest anywhere. The President’s words were important – for they set the tone for what followed.
The nation, he explained on 23 April, was “forced to take aggressive action against an invisible enemy that threatened our lives and the lives of our loved ones”.
This was war talk. Enemy. Aggressive action. Threats to life. It was not unique. Other countries, too, responded with war talk.
So did international bodies. The United Nations Secretary-General labelled the pandemic “the fight of a generation“. We were plunged into war against a common enemy.
The President closed our borders, banned alcohol and tobacco sales, permitted only essential services and restricted our movements under strict curfew. To enforce all this, the government deployed more than 70 000 South African National Defence Force (SANDF) soldiers.
For South Africa, a middle-income country already heavily burdened by HIV/AIDS and TB, with a precarious public health system, the pandemic evoked fearsome spectres. What would happen to those who live in densely-packed under-serviced townships? What of children for whom school meals are their daily sustenance? And what of those without access to housing or proper sanitation?
The pandemic undoubtedly demanded swift, decisive leadership.
This, President Ramaphosa, a person of accepted integrity, provided. More significantly, in doing so, he embraced medical expertise. In seeking to save lives, the government followed science and international guidelines.
But Covid plunged us into other, terrible mistakes.
In fighting contagion, we waged a war on our people. In the face of anguishing human needs, instead of doctors and nurses, we deployed the police and the military. Instead of improving social security, we created newly polished criminal laws. Under the lockdown regulations, we locked up tens of thousands. While communities pleaded for better opportunities to put bread on the table, we used pepper spray to disperse crowds queuing for the R350 Covid-19 grant. Instead of guiding our people through respectful example and instruction to safe and self-protective public health steps, we beat and brutalised them.
Words are never empty.
They frame a problem for us, providing a narrative for us to address it. Speaking about “war” and “the enemy” makes it easier to deploy the military, to incarcerate people, to roll back basic rights and infringe cherished liberties. And, perhaps it makes it easier to assault and even kill people.
Our still-fragile democracy knows this vocabulary – it has been called to earlier wars.
In the late 1990s the first and still-continuing war was declared, against crime and criminals. Since then, our democracy has been fighting many wars – against drugs and drug users, sex workers, cross-border migrants and unlawful occupiers. Too often, we frame the most vulnerable in our society as the greatest threat to our security, to job opportunities and to our values.
Yet all this war talk, all our aggressive counter-attacks, our “tough on crime” policies and mass incarceration have not brought us safety. Despite fearsome over-commitment to state-authorised force and militarised policing, South Africa remains one of the most violent societies in the world.
This past dark year of Covid-19 seems to show that we have not learnt from our mistakes.
High density policing
After the first shock of the pandemic, we were shocked, even more, by the brutality with which our security forces responded to it. In addition to the SANDF deployment, the South African Police Services (SAPS) implemented its “high-density policing” approach.
This entails using forceful policing strategies to assert “the authority of the state”. As Stellenbosch University Professor Guy Lamb noted, this quickly became “government’s primary lockdown compliance strategy”. Government made a major public policy choice – to use securitised and militarised state force to address a public health issue. And its cost was to both human rights and human life.
Early in the lockdown, police imposed petty yet humiliating penalties on transgressors in Soweto – push-ups and squats. On the second day, some fired rubber bullets at a tight-packed crowd of shoppers outside a Johannesburg supermarket.
Then, people started getting killed.
In Alexandra, Collins Khosa, drinking beer on his stoep, was brutalised to death in his yard, by security forces seemingly enraged by his insolent attitude. The SANDF’s first report told a disbelieving public that its soldiers had merely “pushed” and “clapped” Mr Khosa. A belated re-examination was more candid. It revealed that the soldiers violently beat Mr Khosa. He died of blunt force trauma to his head.
Chris van Wyk’s apartheid-era poem – In Detention – sprang to mind:
“He fell from the ninth floor, he hanged himself, he slipped on a piece of soap while washing.”
More tragedies ensued. A rubber bullet, seemingly randomly or inexpertly fired, killed nine-year-old Leo Williams inside his uncle’s home.
Police beat Ntando Elias Sigasa. He died in his sleep. Petrus Miggels tried to buy alcohol. He was beaten with a hammer before being taken to the police station – he was returned home, only to die on his stoep.
Police killed Sibusiso Amos. He was shot in front of his family on his veranda. Adane Emmanuel was killed for illegally selling cigarettes.
Elma Robyn Montsumi, a transgender sex worker, died after the police locked her up on a charge of drug possession in the Mowbray police cells. Why was she not released on bail under the lockdown regulations? She was “found hanging in the police cell alone, as she was in a single cell”, investigators concluded. Once again Van Wyk’s poignant poetry came to mind.
And not only did central government’s coercive measures trample on human rights. The Western Cape government plucked hundreds of homeless people from the city centre and placed them in a camp at Strandfontein, that soon became notorious.
Properly respectful obituaries are hard to offer. Names that did not reach media notice were swept into our statistics. In the first few weeks of the lockdown, the Independent Police Investigative Directorate (IPID) were investigating 199 Covid-related cases (five deaths as a result of police action, 37 discharges of official firearms, 152 assaults and five corruption complaints).
All this created a grievous contrast. While police and military were deployed to discipline poor communities into submission, corruption and looting of public funds by public servants amid a public health crisis seemed to gain pace and force.
The Special Investigative Unit is currently undertaking the mammoth task of investigating 2 556 personal protective equipment (PPE) contracts valued at more than R13.3 billion. These hefty taxpayer funds “disappeared” through official malfeasance – by members of the elite – when early in the lockdown three million people lost their jobs – two million women among them.
Now, a year later, more than 49 993 people have been officially recorded as having died from Covid-19 in South Africa – but the actual toll, measured by the unusually high death toll overall (“excess deaths”), may be nearly three times higher.
The trauma of both the Covid-19 illness and death, and the securitisation and militarisation of this public health emergency, will for years be marked on bodies and communities. South Africa is not alone. Many countries followed this war-like approach. The United Nations Secretary-General recently noted that “our world is facing a pandemic of human rights abuses“.
How did this happen?
The pandemic has exposed existing fault lines engraved in our society; the inequalities, indignities and fears. Illness and death from a new contagion intersected with existing poverty, violence, femicide, mass incarceration, alcoholism and corruption.
It also highlighted a deeper problem. In tackling complex public health issues, we mistakenly take recourse to the blundering, blunt instrument of the criminal law. We coerce compliance with measures, designed to save the public’s health, first through brutal force – and then through the stigma and shame that are criminality’s inescapable companions.
But this was desperately wrong.
The AIDS epidemic taught us profound lessons. Our response to AIDS offered a choice – the harsh, misdirected criminal law approach or the benevolent human rights approach. The former penalises marginalised communities, perpetuates stigma and fear and impedes education and transparency and security. We know it simply does not work. The benevolent approach dispels unwarranted stigmas and fears. It inspires openness and places a premium on resourcing prevention, information and support.
In AIDS, we avoided the terrible criminal-law errors many African countries and states in the United States made. We rejected new criminal penalties. We did not punish people through the law. Rather, we embraced the insight that protecting the rights of those at risk of and living with HIV grants better protection for everyone. We embraced the insight that a virus is not a crime.
We learnt first-hand that a public health crisis cannot be managed through fear and coercion and stigma. What it needs is human rights protections, leadership and role models, clear public messaging and education, social justice, compassion and empathy.
But the Covid emergency seems to have obscured these hard-learnt lessons.
War on drugs
When a crisis confronts us, we try to “nip it in the bud”. All too readily, we turn to failed solutions that focus on the symptoms and not the underlying causes. We take far too ready recourse to punishing and stigmatising through policing and incarceration.
Perhaps the most grievous example is the misbegotten “war on drugs”. We continue against increasing mountains of evidence to treat drug use as a crime issue, when it is a social and public health issue, managed effectively through public health education and interventions.
We try to tell ourselves these problems are short-term, but – as with Covid-19 – they may be around for long.
Is this because we lack the imagination and determination to design and implement something different? Or is it because “tough on crime” approaches provide our politicians with an excuse for not thinking through and implementing more effective action?
Wisely, the President brought forward the parole dates of 18 000-19 000 inmates sentenced for non-violent offences. But the lockdown regulations worked directly against this, by creating more criminals, triggering more arrests, more over-crowding in correctional centres, and more stigma in vulnerable communities.
And our prisons serve as reservoirs for the spread of contagion increasing the risk for both those inside and the community beyond.
When I visited the Johannesburg correctional centre (“Sun City”) in May 2020, we were told that awaiting trial detainees had burgeoned during the first month of the lockdown by over 10%. On the very first day of the lockdown, 55 people were arrested. The total arrested for lockdown regulations contraventions has swelled to 342 000.
The question for us is this: Do we keep anyone safe by treating Covid-19 as a security issue? By clamping down on the public with an iron fist, when what they seek is reassurance, food, healthcare and shelter?
The answer is clearly No. The most vulnerable were disproportionately hit by the stalled economy, and then double-hit by the new lockdown crimes. Nor do we keep safe the people forcibly evicted and dragged out of their houses. Nor the women who were abused and brutalised. Nor the millions who are unable to socially distance on public transport, and who do not have regular access to running water.
This harsh reality does not affect me, nor others living in relative comfort and security. Most harshly affected were those already severely affected by injustice and dispossession.
The pandemic accentuated what most South Africans experience daily – that a culture of violence and impunity, with a long history, is not overcome simply by electing a democratic government or enacting a soaring Constitution.
In these communities, soldiers and police using sjamboks in Hillbrow to enforce overnight-enacted regulations are all too reminiscent of the brutality we promised would end under the Constitution.
Brutal measures do not keep security personnel safe. While enforcing unpopular lockdown regulations, thousands of hardworking police contracted Covid-19 – and hundreds died “at a greater number than the combined total of SAPS deaths at the hands of criminals since 2016”.
Our institutions also suffered a loss of elemental safety. The pandemic exposed the crisis of faltering reform and waning trust.
Take the SAPS. Police violence was pervasive during apartheid. The transition brought a welcome change – a human rights approach.
Professor Lamb observes that public trust and confidence in the police profoundly influences both legitimacy of the police and their actions.
In democracy, the central pillar is policing by consent.
This exists “where citizens recognise the authority of the police and the lawful right of the police to act in specific ways, and they consequently forfeit certain rights and freedoms (that they would typically enjoy in the absence of recognised authority), either explicitly or implicitly, in the interests of public order and peace”.
In this way, “policing by consent” bolsters police effectiveness and the rule of law.
Eroded trust in police
The grievous reality is the opposite. Public trust in our police, already eroded, has drained away further in the pandemic.
A recent study even suggested that “the accountability chain in SAPS is broken“. There has been a steady decline in internal discipline on SAPS members.
Professor Muntingh of Africa Criminal Justice Reform (ACJR) found that even when disciplinary action is taken, there is a 44% chance of not being held to account.
Lockdown corruption dragged national trust down even further.
And the blame does not lie with front line individual police personnel. Responsibility lies with leadership, within the police and nationally. This past, unnerving year, has done our still-nascent democracy no good. Our Constitution and Bill of Rights promised freedom, equality and human dignity. But the pandemic glaringly exposed our deficient follow-through.
The pandemic offered no warrant to suspend the rule of law, or for a moratorium on rights.
Lockdown measures, including physical-distancing, quarantining, masks and hygiene and education campaigns had widespread support and acquiescence. But hard-core coercive measures at a cost to human rights and dignity and human life exacted a high toll, particularly amongst the vulnerable.
At this first anniversary, nearly coincident with Human Rights Day, equitable and effective vaccine distribution offer hope. The 1960 Sharpeville massacre anniversary invites us to renew commitment to human rights and to nurturing public health by measures healthy to the public – not by bullying coercion and brutality.
The pandemic is long not yet done with us. If we do not learn its lessons, deadlier waves may engulf us.
Much better is the promise embedded in our Constitution – that we encompass new and better ways of sharing our society’s energies and opportunities and assets. That approach offers safety and prosperity.
– Justice Edwin Cameron is the Inspecting Judge of the Judicial Inspectorate for Correctional Services (JICS).
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