National Association of Democratic Lawyers
Submission on the Prevention of Organised Crime Bill to the Portfolio Committee on Justice
(30 September 1998)
(Drafted by Michael Blake of the Nadel Human Rights Research and Advocacy Project)
"(I)nternational law enforcement is at best a holding action... (U)nless there is simultaneous advance in economic and social development, organised crime on a pervasive and global scale is likely to be with us to stay." (United Nations Department of Public Information report)
We thank the Committee for providing the opportunity for Nadel to make a written and oral submission on the Prevention of Organised Crime Bill.
A. An unsatisfactory hearing process
Having said so, at the outset, Nadel feels it appropriate to make a few points about the hearing process itself:
We consider that not enough time has been granted for civil society organisations and communities to respond to the Bill. We question the wisdom of rushing a piece of controversial legislation on a vitally important matter, without allowing a substantial public airing of the relevant issues and concerns.
Furthermore, Nadel is concerned about the timing of the Bill. It seems to us that the May 1999 election is a leading factor. This is unacceptable. The National Crime Prevention Strategy noted that "... The tendency of political parties to use the issue as a vote catcher has resulted in the generation of single-factor causes and solutions to crime and violence." In its timing and substance (especially that of Chapter 5), it appears that the Bill departs from this caution.
B. Nadel’s basic stance on the Bill
1 We accept that organised crime and gang activity are serious social problems. Crime is a parasitic scourge, especially in black working class communities. Amongst others, it breaches the Constitutional rights to security of the person, dignity and freedom of association.
2 However, the causes of crime are structural. As such, an integrated and multi-pronged approach is required. The National Crime Prevention Strategy (NCPS) offered such an approach. Nadel believes that the Bill fundamentally contradicts the NCPS in a number of key respects.
3 The Bill is proposed in a context of near hysteria against crime. In this context an unhealthy pattern of government response has begun to emerge, from which it will be increasingly difficult to disentangle itself. We highlight a few points to illustrate this trend:
- for a while, the Minister of Justice attempted to justify the archaic and discriminatory law on sodomy, in the name of protecting children from violence and abuse;
- in the name of strong community feelings against crime, the recent bail legislation and tough minimum sentencing whittled away the rights of accused and detained persons;
- in December 1997 Pagad’s National Secretary, Abeedah Roberts, was harassed and her privacy invaded by over-eager and high-handed members of the police force;
- anti-Muslim sentiment and prejudice, in the wake of the Planet Hollywood bomb explosion, was the pretext for an innocent man being harassed and falsely accused by the police;
- recent news reports highlight the fact that Gauteng police have been using profiling techniques, which are clearly discriminatory, in the efforts to curb ‘illegal aliens;
- feeding the pre-election hysteria, by attacking a vulnerable minority, the National Party’s Gerald Morkel recently blamed ‘illegal immigrants’ on the 14% increase in crime in the Western Cape;
- similarly, in Cape Town new by-laws have been passed which criminalise street traders and street children.
4 The Bill’s catch-all definitions and the wide discretion granted to the police, represents an attack on black working class communities, especially the youth.
5 The ‘war against crime’ is therefore being used to undermine fundamental rights and the Prevention of Organised Crime Bill is a further addition to this unacceptable trend. We reject the argument that, because it is difficult to target and hit organised crime, it is therefore permissible to infringe on existing rights.
6 Nadel believes that we are on a slippery slope. We have been forced into a situation where each defence of principle is conducted from a lower point than the previous law-and-order enactment. This trend need to be stopped. The problem of crime cannot be addressed by resorting to simplistic and pragmatic means. In the words of Denis Davis: "The solution lies in institutional change, not an erosion of human rights, in rational policing not populist hysteria."
7 The Bill is unconstitutional. There is a serious breach of due process. As Cachalia and Steenkamp remind us, "It is accepted in our law that no one should be forced to give evidence incriminating himself or herself." They go on to state that the "recognition (of the right to remain silent) as a constitutional right is significant." (ibid.) However, under the Bill, suspects and other innocent people will not have the right to remain silent, in that, as the Bill states, they will not be "...excused from answering any question... on the grounds that the answer might incriminate him/her or make him/her liable to a forfeiture."
8 Nadel is concerned that the Bill, explicitly or implicitly, breaches a number of other fundamental freedoms in the Bill of Rights. Without elaborating on this, Nadel believes the list includes:
the right to freedom of opinion, religion and belief;
the right to freedom of association;
the right to the free use and practice of language and culture of choice;
the right to privacy;
the right to property.
9 Nadel finds it disingenuous to use the rights in the Bill of Rights, as the Preamble of the Prevention of Organised Crime Bill does, to justify measures that effectively attack the same rights.
10 Nadel is not satisfied that the following important questions about the Bill have been properly aired in public and convincingly answered by the government, viz:
Why the need for what the Bill calls "extraordinary measures"?
Why are the common law and existing statutory legislation inadequate?
Where is the overwhelming argument, evidence and the statistics to show that new legislation of this sort is necessary?
Where is the broad public discussion on the controversial implications of the Bill?
11 Nadel does not believe it is appropriate to respond in any detail to individual sections or provisions in the Bill. Under the circumstances, it would be wrong to try to make the most of a very bad job, by offering amendments and recommendations. To do so would be to give credibility to something constituting a fundamental breach of principles. The slide further down an ever steeper and more slippery slope needs to be halted.
12 We too are concerned about crime and its devastating impact on communities throughout South Africa. However, for all the reasons we set out, we do not think that the Bill is an appropriate means for addressing the problem. Nadel believes it should be completely withdrawn.
C. How the Bill departs from the National Crime Prevention Strategy The National Crime Prevention Strategy is a useful bench-mark for evaluating the Prevention of Organised Crime Bill. In this section all references to the NCPS refer to the summary of the document. Nadel notes with concern that the Bill contradicts key aspects of the (NCPS):
1. The NCPS calls for a comprehensive, co-ordinated, non-reactive crime prevention programme and streamlined legislation
The NCPS states that "... In the past, legislation which relates to crime prevention has not been co-ordinated in a coherent programme." It also goes on to say that "... Crime needs to be tackled in a comprehensive way, which means going beyond an exclusive focus on policing and the Justice System"; and further, that the government needs to move with circumspection, "beyond a mode of crisis management and reaction". It argues that to rush things and expect quick solutions "...is to sabotage proper planning and solid construction of a new criminal justice machinery."
The Bill breaches guiding principles of the NCPS and fails to heeds its warnings. The narrow reactive focus on crime is disheartening.
In the first place, the government needs to deal effectively with the structural causes of crime. This is far from the case, as is argued below.
At the same time, government should put appropriate measures in place to deal with crime, without either impinging on other human rights or punishing the victims of poor socio-economic circumstances. In both these respects, this is exactly what the Bill does.
The police force that is supposed to execute the terms of the Bill is a far from adequate instrument for the task. In the circumstances, the Bill will feed police corruption and further undermine the credibility of the force. This shortsightedness is tantamount to the ‘sabotage’ that the NCPS speaks of. Are we really sure that, on the basis of the Bill, circumstances with regard to crime will improve rather than deteriorate?
Furthermore, the NCPS states that "... This programme is aimed at improving and streamlining the development of legislation required to improve crime prevention." However, the Bill follows hard on the heels of a supposedly failed Proceeds of Crime Act of 1996. Rather than streamlining, we have one set of measures quickly followed by another. Why this duplication? What are the failings of the Proceeds of Crime Act? Are two years enough to conclude that the Act is failing and requires further extraordinary measures. Do we really need another Bill?
As the election nears, every political party is vying for votes under the banner of fighting crime. Populist reaction has led to renewed calls for the reinstatement of the death penalty and ever tougher measures on crime. "Avoid being reactive", is what the NCPS insisted. The Bill falls into the very trap that the NCPS expressly tries to avoid.
2. The NCPS expressed concern about the marginalisation of ‘at risk’ youth
The NCPS notes that "... The historic marginalisation of youth, combined with slow growth in the job market, has contributed to the creation of a large pool of ‘at risk’ young people." Through Chapter 5, the Bill opens up working class youth to arbitrary attack by a police force whose legitimacy is far from established. A significant proportion of the very youth whose specific needs the NCPS is so sensitive to is under threat from the proposed legislation.
Under a section called "Diversion Programme for Minor Offenders", the NCPS says: "The criminal justice system is enormously costly and often inappropriate for dealing with petty offenders, particularly juveniles, where stigmatisation can pose an intolerable burden on the normal development path to responsible adult citizenship." In the current ‘moral’ anti-crime climate, it is not hard to see that Chapter 5 of the Bill will indeed lead to the stigmatisation of juveniles and their further marginalisation in society.
The NCPS also talks about limiting "unnecessary trauma" of young offenders and facilitating their "eventual reintegration into society" . This rehabilitative approach is farsighted and progressive. However, the punitive purpose of Chapter 5 will expand the number of potential young offenders and undermines the emphasis of the NCPS on preventative rather than reactive measures. Young people will be caught in a worsening spiral of criminalisation and victimisation at the hands of the police. Rather than alleviating the problem of crime, the demoralisation and disintegrative trends within society are likely to be aggravated. This approach differs sharply with that of the TRC, except that in the case of the latter ‘reintegration’ of the oppressor minority (including members of the police) has been facilitated. In contrast, the Bill punishes a vulnerable section of the historically disadvantaged majority.
3. The NCPS recognised the structural causes of crime The NCPS states that, "... While economic growth and development are crucial in addressing the factors which lead to crime, poorly managed development can itself contribute to increased crime rates." The NCPS also argues that "all forms of crime increase during periods of political transition." This is historically inaccurate. There are examples of "political transition", such as Nicaragua from 1979 to 1984, in which crime levels dropped dramatically. Much depends on the specific interplay of political and economic forces.
Of greater significance is the fact that, over the past 15 years, crime levels have increased throughout the world, both in ‘transition’ societies and others. Neo-liberal policies, especially structural adjustment programmes, and the unemployment and poverty they have led to, are the leading cause of crime. Growing worldwide economic instability will add to the problem. Witness the recent reports of soaring crime levels in East Asian countries (up 47% in Malaysia according to one report), following the economic collapse there.
We are concerned that the government’s Gear policy is a case of "poorly managed development." This self-imposed structural adjustment programme, as in the case of similar programmes elsewhere in the world, is likely to increase poverty and inequality rather than improve living conditions.
The insistence on tight budget deficits do not match the mounting socio-economic needs of people. There are over 450 000 new job-seekers each year. Since the introduction of Gear, the job market has shrunk and hundreds of thousands of workers have been laid off in both the private and public sectors. Growth targets have been badly missed. Where poverty, unemployment and other forms of social want are so extreme, crime will flourish. A huge percentage of young black people, easy targets of the Bill, are drawn into criminal activity under these circumstances.
Lastly, international evidence suggests that the opening up of financial markets, an important element of Gear, has greatly facilitated the growth of organised crime. This point is elaborated further below.
The Preamble of the Bill merely notes the "rapid growth of organised crime and criminal gang activities nationally and internationally, without locating the structural causes. Nadel believes that a false diagnosis has led to wrong remedies in this case.
D. Further Nadel objections to the Bill
1. Wide definitions that make for bad apartheid-type law
A combination of wide and arbitrary definitions - of a criminal gang, of criminal gang members, of a pattern of illegal conduct, of a pattern of criminal gang activity, of an enterprise - makes for the potential widespread criminalisation of black working class people.
For example, the Bill includes, as a factor for determining whether someone is a member of a gang, whether a person frequents an area of a criminal gang, associates with gang members, dresses, behaves or bears other trappings of gang members. A high percentage of young black people, just by living in an area or having friends who are gangsters or behaving in a manner that resembles typical gang member behaviour, could be caught in this net. This is a draconian restriction on human rights.
The Bill is couched in terms analogous to those used by the Apartheid regime against its political opponents. The incrimination of people by subjective association, is similar to the charges of "furthering the aims" of banned organisations or communism. It was bad law then and to apply a similar approach now is unacceptable.
If the Bill becomes law, it is conceivable that it could be used by sections of the police either to incriminate, harass or intimidate people for reasons of narrow self-interest or against legitimate opponents of the government.
Because the definitions are very wide, guilty and innocent could be tarred with same brush. There is a failure to recognise that there are different types of gangs. Not all are criminal in nature and often the lines between one and another are blurred. For example, the wide net layed by the definitions is likely to affect small shebeen owners, small time informal ‘gangs’ and street children.
There is a failure to recognise the socio-economic realities that the youth face. If Madiba’s grandson could be arrested for fraud and, more recently, Minister Mufamadi’s daughter for theft, then what are we to say about the impoverished youth throughout South Africa. Gang activity often is a means to survive, to secure an income, to feel a sense of dignity and to be part of a ‘family’. To criminalise working class youth in the manner that Chapter 5 implies is to punish victims. With millions of youth facing unemployment, poverty and little or no prospects for the future, further victimisation and criminalisation is no solution.
2. Wide discretionary powers to a police force that lacks credibility The National Director of Public prosecutions will rely on evidence provided by the police. The wide definitions and the subjective criteria give enhanced discretionary powers to the police. Yet we know that the police force, by and large, lacks legitimacy. As Denis Davis has noted, the police force has been "... Trained for a brutal authoritarian environment which is ill-suited to a society which wishes to build a constitutional state"
A significant section of the police force remains racist, homophobic, sexist, hostile to youth, intolerant of other oppressed minorities, and authoritarian in approach. Deaths at the hand of the police, either in detention or in other circumstances, make up an average of over two a day over the past year.
Furthermore, police corruption is widespread. Two recent examples highlight the problems: about four weeks ago, nine policemen from Pretoria’s Alien’s Investigation Unit were arrested on charges of theft, corruption, defeating the ends of justice and soliciting prostitutes; in the past week, a further nine police officers of the South African Narcotics Bureau were arrested on charges of rape, robbery and assault.
There is also widespread evidence of collusion between the police and organised criminal gangs.
Lack of resources and low morale in the police service fuel the problem.
To enhance police discretion under these circumstances and in the context of the unhealthy law-and-order trend set out above, will only aggravate things.
3. Netting the sardines but not catching the sharks Unfortunately, the Bill does not even provide a definition of organised crime. It casts a wide net, with small holes. Many small fish are likely to be pulled up but how great is the prospect of catching the big fish?
The danger exists that even where the big fish are arrested they could easily break the net. They will use the huge finances they have amassed to exploit the flaws in the Bill. The leaders of organised crime could either launch effective constitutional challenges to the proposed law or resort to the tactic of dragging out cases interminably on technical grounds.
4. An ill-conceived fund The Criminal Assets Recovery Fund might be a good idea but, if set up in the way indicated, it might create further problems.
Insofar as the fund’s primary aim is "to render financial assistance to law enforcement agencies to combat organised crime and criminal gang activities in general", the Bill creates an incentive for the police to ensure the arrest of accused persons and the forfeiture of their assets. This will further encourage arbitrary and corrupt actions.
It would be better if the recovered assets went into a fund that served to facilitate social development, thereby tackling the root causes of crime.
5. The right-wing political origins of the approach Nadel does not accept the right wing populist anti-crime agenda that has been adopted across most of the United States. It is common knowledge that Chapter 5 of the Bill is largely modelled on the US experience, specifically that of the state of California. Do we really want a ‘zero tolerance’ approach to crime in South Africa? Are we heading for a reinstatement of the death penalty? Are we vying with the USA to have the highest prisoner to total population ratio in the world? Rather than blindly adopting US policies, we need to reflect on the context in which they have emerged.
As one criminologist, Professor Anthony Platt of California State University, noted:
"... By 1992, the traditional liberal agenda on crime prevention, community development, mediation, rehabilitation, and abolition of the death penalty had, like liberalism itself, disappeared from official political discourse."
This is despite the fact that by 1995, overall crime rates had declined in the USA. Youth violence is only a small part of serious crime. However, working class youth, especially Hispanic and black youth, have been hit hard by the legislation. The last two groups suffer far higher arrest and conviction rates, confirming the racist bias of the police and the criminal justice system as a whole. Why are we falling behind a similar approach?
6. The economic basis for organised crime The Prevention of Organised Crime Bill justifies its existence by referring to the fact that we need to bring ourselves in line with international efforts to fight organised crime. This sweeping motivation serves to hide the realities of organised crime. We cannot rush into a set of new draconian ‘solutions’, without having properly located the problems we face. The growth in organised crime needs to be placed in international context and requires careful analysis not a blind imitation.
Firstly, in today’s economic context, the distinction between organised crime and white collar crime is increasingly blurred. However, the Bill does not even refer to white collar crime.
There is a convincing argument that the mushrooming of organised crime is inextricably tied up with the wholesale imposition of neo-liberal economic policy throughout the world. In recent months, the terrible state of the world economy, from the point of view of the poor, has been further exacerbated by the economic havoc spreading from East Asian countries, to Russia and Latin America.
According to the UN, revenues of "trans-national criminal organisations" total $1 000 billion, which is the equivalent of the combined GDP of low-income countries totalling 3 billion people. According to one author, "organised crime groups outperform most Fortune 500 companies...with organisations that resemble General Motors more than resemble the traditional Sicilian mafia."
In Latin America structural adjustment programmes have been adopted by politicians directly linked to the drug mafias. Political and economic corruption has significantly increased since neo-liberal policies have come to dominate the world.
A professor at Ottawa University, Michel Chossudovsky, offers a telling warning:
"Vested interests are so entrenched in this system that formal changes in the gamut of banking regulations are unlikely to effect fundamental reform. The ability - and the will - of governments and international institutions to curb the criminal economy on behalf of society - is seriously compromised since those with the power to make changes are often well served by the status quo."
The blunt reactive approach of the Bill hardly acknowledges these complexities.
Conclusion Nadel favours the comprehensive, integrated and all-sided approach of the NCPS.
It is far better suited to tackle crime than the reactive and risky measures of the Prevention of Organised Crime Bill.
The base-line of human rights entrenched in the Constitution needs to be vigorously defended.
A halt needs to be called on the narrow, retrogressive law-and-order approach to the problem of crime.
Human rights organisations need to campaign against the politically unacceptable trend that the Bill further reinforces.
There is no valid basis for extraordinary measures and the related erosion of our newly acquired human rights.
Nadel requests that the Bill be withdrawn.