Submission by the Human Rights Committee on the Prevention of Organised Crime Bill [B118-98]
The Human Rights Committee, an independent national NGO established in 1981, believes in protecting and promoting fundamental human rights and in sustaining and developing democracy. We seek to contribute to a South Africa where all its people meaningfully enjoy the benefits of the rights enshrined in the Constitution and the Bill of Rights. Our monitoring, research, reporting, public awareness and advocacy work aims to ensure that legislation and government policies conform to the Constitution. It is in terms of this vision that we submit this commentary on the Prevention of Organised Crime Bill.
Whilst acknowledging the difficulty the criminal justice system finds itself in, HRC is not convinced that the "extraordinary" measures proposed in the Bill can be justified. The HRC thus rejects the Bill for the following reasons:
2. The criminalisation of ‘street’ gangs ( Chapter 5 )
3. Questionable constitutionality
4. Legislation in isolation
1. PROCESS Our first objection to the Bill relates to process
As the preamble to the Bill reflects the fact that extraordinary measures are relied upon in the Bill, the HRC believes that thorough debate on the Bill is needed. The rapidity, which has characterised both the drafting of this Bill as well as its passage through Parliament, has excluded proper debate. We have no doubt that government perceives crime to be a most debilitating problem, but to pass laws which are fraught with contention, controversy and seemingly questionable success elsewhere, coupled with minimal debate, does not bode well in the search for solutions for a stable, safe South Africa.
By attempting to pass the bill in Parliament this session, it is clear that Parliament is compromising the democratic principles it has set itself, in exchange for short term gains, such as the perception that the Government is "tough on crime".
Because of the complicated, technical nature of this bill, as well its heavy reliance on legislative measures adopted from foreign jurisdictions, we would have liked to have been able to do comparative research and further explore the implications of some of the far-reaching measures which are being proposed. Furthermore, we would have liked to have established exactly how effective such measures have been elsewhere.
HRC has built up a reputation of making constructive criticism on bills considered by this Committee. We want to see good, workable and democratic laws passed; laws which are practical and an asset to the South African legal framework and South African people. The lack of time to properly comment on this Bill, we believe has compromised the kind of submission we would have liked to make. In light of this, we can only raise our objections to certain parts of the Bill, without offering constructive alternative solutions. We hope that the Committee will accept our criticism of the Bill in light of this comment on process.
2. CHAPTER FIVE: THE PREVENTION OF CRIMINAL GANG ACTIVITIES Our second reason for rejecting the Bill relates to the inclusion of Chapter Five of the Bill, " The Prevention of Criminal Gang Activities".
Whilst acknowledging the need to introduce legal measures to curb organised crime and gangsterism, the HRC would like to submit the following socio-political points for consideration in relation to passing this section of the bill.
Vague definitions The HRC believes that the following definitions in Chapter One of the Bill are so vague, they could certainly be challenged Constitutionally:
Section 1(iii) ‘criminal gang’
Section 1(iv) ‘criminal gang member’
Section 1(xv) ‘pattern of criminal gang activity’
These vague definitions are open to abuse and permit an extreme amount of discretion on the part of the police and justice officials as to who is a suspect in terms of Chapter Five.
The sociology of gangs: the "culture of gangs"
Gang culture, what it is and why it exists has been well documented by respected criminologists such as Wilfred Scharf and Don Pinnock of the University of Cape Town’s (UCT) Criminology Institute. According to Pinnock, for both police and thousands of youths who are members of gangs, it would be extremely difficult to define ‘criminal ‘ in the context of ‘criminal gang’ in the way the Bill deals with them. At the fringes of organised society young people often join gangs because they need protection from other gangs, because they have no other "family" to turn to and because they need to get a ‘job’ in an environment which offers none. The culture that develops within a gang owes little to legalistic definitions of criminal, and has much more to do with survival in an extremely harsh environment.
Supporting this view is PHD student at UCT, Steffen Jensen, who bases his knowledge on fieldwork carried out in Heideveld between 1995 and 1998. According to Jensen, Chapter Five has the ability to criminalise large sectors of the Cape Flats society. The definitions of gangsters and gang-activity are much too broad and will criminalise entire sections of the formerly coloured areas. This will be possible because the bill does not define criminality purely in terms of illegal acts but in terms of association and culture, as set out in the guiding definition of gang membership.
This is not merely of academic interest as the consequence of wrong definitions of the objects of the law can have devastating consequences for a potentially very large group of people, in this case historically disadvantaged youth. Unless there is a distinct and well-defined bottom line between gangsters and ordinary people, and this is reflected in the law, there should be no such law.
The Bill stipulates that the court can take factors into account such as the fact that a person resides in a criminal gang’s area, and adopts their style of dress. These same criteria will be used by police to make a decision around whether to arrest someone or not. The HRC believes that this loose wording can easily lead to dangerous stereotyping and labeling.
The Bill widens the net to such an extent, it could lead to undue focus on petty gang activity to the detriment of proper criminal investigations, as police acting in terms of the Bill do not have to make the distinction between the two.
The role of the police
What can be gleaned from the little that is being said publicly about this Bill, is that a specialised team is already being assembled to put into effect the sections outside of Chapter Five. Thus Chapter Five will be entrusted to local police trying to control a particular suburb: they are permitted to assume that all gang activity is criminal.
The Bill ignores the reality of collusion between gangsters and the police. Scharf has stated emphatically: "No gang, cartel or syndicate can exist for any significant period without the knowing and active assistance of functionaries in the state, particularly the criminal justice system." It is common knowledge that in some areas, police favour certain gangs over others, often through a long association with them, not least from ties which were established during the Apartheid years when gangsters were often used as police informants.
Although it has been very difficult to prove collusion between police and gangs, at least one case in the last year investigated by the Independent Complaints Directorate has shown that such relationships do exist. Bearing in mind the difficulty of reporting such cases to the police - until recently, people have had to report police collusion to the police themselves - there is always a grave danger when reporting any gang-related crime given the gangs’ record in relation to witnesses. If one accepts that collusion between certain police and gangsters exists, and is a serious problem, the discretion which this bill allows for in the determination of "who is a gang member", will be severely abused.
Both Pinnock and Scharf have warned that this law could lead to escalations of violence. For one, renewed turf wars will fill the vacuum left by anyone successfully targeted by the new laws. The law also has the potential to seriously polarise the community. Furthermore, and importantly, gangs won’t simply ‘go away’, based as they are in the socio-economic needs of their members. They are, therefore likely simply to ignore the Act or go underground, forcing increasingly heavy policing and an escalation of conflict.
In light of the considerations, as set out above, the following questions need to be asked:
- Is there any prospect that criminalising gang membership will reduce gangsterism?
- Does Parliament want to be responsible for re-victimising already marginalised youth?
- If passed, do we have sufficient police members to deal with the consequences of this Bill?
- Do we have the space in our places of safety to accommodate the numerous youngsters who will undoubtedly be caught in the web of this law? If not, has Parliament considered the effect of this, namely, that many young people will have to be kept in prisons, " the universities of crime".
- What checks and balances are in place to counter the enormous amount of abuse which could arise from the application of the provisions of Chapter Five?
A general comment on the inclusion of Chapter Five is that it does not fit in with the rest of the bill which is aimed at organised crime. It is our understanding that the primary aim of this bill is to get to the "untouchables". The inclusion of this section clearly brings into focus the visible gang members, the so-called "small guys". It is unclear whether the issue of street-type gangs are included in the bill as they are perceived to be part of the larger issue of organised crime, or whether such inclusion is to try and tackle the prevalence of gangsterism in the Western Cape ahead of the 1999 elections.
Either way, because of their high visibility, initially the effect of this extensive bill will be to harass the small guys, which we all know not to be at the root of the problem. HRC is emphatic that this Chapter must be excluded from the Bill in its entirety. In the event that this Bill is passed by Parliament, HRC would rather have the police and justice departments focus their concerted attention on the people who operate at the top of the organised crime syndicates.
- Can we legislate for change in an arena closely tied to lifestyles and heavily influenced by pervasive socio-economic realities and historical developments, such as the forced removals, and the consequent breakdown of many community structures and networks? If people feel the need to organise themselves in a particular way, laws will not stop them; prohibitive laws will merely drive them underground. To reduce gangsterism, speedy delivery of services, housing, recreation centres, proper education and healthcare, as well as proper policing and a well-oiled justice system, will go far further than any piece of legislation criminalising membership to a gang.
3. QUESTIONABLE CONSTITUTIONALITY Our third objection to the Bill is on the grounds of its questionable constitutionality.
The Human Rights Committee believes that this Bill deliberately erodes the rights enshrined in the Constitution. This Bill amounts to a curtailing of rights in a consciously veiled manner.
It is clear the drafters of the bill have tried to alter some of the sections of the laws they have lifted from other countries in an attempt to keep them within the bounds of our Constitution. It is our contention that they have not successfully achieved this balance. Furthermore, the Bill contains foreign phrasing and words which have no jurisprudence in South Africa. In light of this, it is likely that the Bill, once it becomes an Act, will spend a protracted period at the Constitutional Court.
- The HRC urges Parliament to respect not only the letter, but also the spirit of our Constitution. We hope that Parliament will seriously re-consider the problematic sections we have highlighted, in the quest to find measured, constitutionally-sound alternatives.
The following points highlight aspects of the Bill which are in our view unconstitutional or outside of the spirit of our Constitution and democracy:
a. What is meant by an ‘act of illegal conduct’? Is it a conviction or something short of a conviction? What type of evidence will be sufficient to prove an act of illegal conduct ?
b. In terms of the South African Constitution, an accused or a suspect in a criminal matter is necessarily afforded protection. A fair trial, and the doctrine of innocent before proven guilty, for example, are recognised through a series of checks and balances on the power of the state to curb the rights of the accused. This Bill has taken legal matters which usually fall within the ambit of the criminal law, and moved them into the civil arena. Forfeiture becomes a civil matter, and citizens’ rights are diluted as the guarantees afforded suspects in criminal matters no longer apply.
c.Not only are citizens’ rights diluted in terms of the shift to the civil law, the state requires a weaker burden of proof to establish its case.
d. The state has no obligation to provide legal representation at state expense to a person in a civil matter. In this case, where the laws have been shifted from the criminal law to the civil, there should be an obligation on the state to provide legal representation for the defendant if she or he does not have her or his own funds. This should be written into the law, especially as, by its own admission, this Bill takes such extraordinary measures.
e. The legal professional privilege, a fundamental principle upon which our legal system is based, is violated in sections 25 and 26.
f. There is no provision that makes the State liable for any harm done to goods forfeited by the State. If due to intention or carelessness they cannot be returned in a reasonable state, or not at all, the victim should be compensated.
g. The fact that the Bill allows the National Director to authorise a prosecution - which could cause considerable loss to an innocent person - on the basis of a "reasonable suspicion" is not good law. The National Director should be led in his decision to prosecute on the basis of there being sufficient evidence to sustain a conviction. Imposing losses upon citizens merely on suspicion of a committed offence, clearly violates property rights.
h. Sections 1(xiv) and 1(xv) toy with retrospectivity. The fact that the drafters tinkered with the provisions and made only one of the two acts required for criminality retrospective, does not detract from the fact that it is still retrospective in nature, and thus unconstitutional.
i. The formulation of section 6(1)(a), where the restraining order has no proportional relationship between the profit of the criminal pattern and the property forfeited, needs to be scrutinised. The word "concerned" is ambiguous.
j. In terms of section 2(3)(b), the National Director may authorise a prosecution if in his or her opinion –
"(i) there is reasonable suspicion that a crime has been committed; and
(ii) an organised crime has been committed"
k. Thus the National Director has to be satisfied that an organised crime has been committed in order to prosecute. But there is no definition of ‘organised crime’ in the Bill. On what does the National Director base his or her decision and on what basis does someone challenge this decision?
4. LEGISLATION IN ISOLATION Our final objection relates to the fact that this Bill is not part of a holistic plan, such as the National Crime Prevention Strategy.
According to Barry Rider, Director at the London’s institute for Advanced legal studies, who addressed this Parliament on the issue of organised crime earlier this year, confiscation of assets or proceeds of crime does not work on its own. He added that attempts to control organised crime and large syndicates should be aimed mainly at identifying "unaccounted wealth" rather than just through the confiscation of assets. He told Parliament that in the United States and United Kingdom, where confiscation had been part of their law for years, only a miniscule percentage of the estimated money laundered by crime syndicates was recovered.
Rider’s message was that forfeiture, if it is implemented, is only one part of a holistic strategy. South Africa has the opportunity to learn from other countries which have faced similar problems. What is concerning is that legislation is being rapidly passed, with the knowledge that these measures on their own are not adequate, as has been proved in other jurisdictions which have far more resources, police, etc than South Africa. The bill is not part of a comprehensive plan. Expert knowledge has told us that forfeiture alone is insufficient, and realistically, legislation criminalising gangsterism per se, without complementary developmental programmes and strategic socio-economic upliftment, is equally futile.
CONCLUSION Rather than try to rush this Bill through Parliament, HRC recommends that the Justice Committee allows for more time to properly consider some of the objections to this Bill. As the Bill will undoubtedly spend a lengthy time in battle in the Constitutional Court, the time can more productively be spent finding realistic, integrated solutions.
We believe that Chapter Five and the definitions in Chapter One, which support it are too vague and wide reaching. These provisions are loosely defined and are thus open to massive abuse: the bill can criminalise an entire segment of society without any criminal actions being recorded apart from in terms of this bill. The definitions are much too sweeping, and a pair of tackies, Levis jeans and a handshake can potentially incriminate a young person.
We would like to see laws targeting organised crime as part of a holistic plan, as advised by Professor Barry Rider. He has proof that forfeiture laws passed in isolation, have not achieved the reduction in organised crime elsewhere. We believe that legislation which complements a holistic plan of action would also serve the country immeasurably better than a "quick-fix", such as this one, which will ultimately dilute the rights culture in SA.
The introduction of this Bill was necessitated by the state's inability to prosecute gangsters and people involved in organised crime. We believe that unless the criminal justice system is given the requisite back-up – including modern database and information systems, and adequate training, resources and remuneration for police, prisons and justice officials – attempts to alter the status quo through laws alone, will not succeed.