South Africa

OPINIONISTA: The inaction (and complicity) of South African police fuels xenophobic violence

The role of the South African Police Service has been held out again and again as both a possible contributing factor to community hostility towards non-nationals and exacerbating the harm to non-nationals during xenophobic violence through police inaction (at best) or ‘siding’ with South African nationals (at worst).

This month, Human Rights Watch published a sobering and, at times, distressing report on xenophobic violence against non-nationals in South Africa. It describes a South Africa where non-nationals, subjected to shocking levels of violence, do not trust the police enough to make reports, and where dawn and dusk crackdown operations involving the South African Police Service (SAPS) and others fail as a crime prevention method, but succeed in reinforcing harmful stereotypes about non-nationals as a collective criminal element.

The most recent descriptions of violence against the bodies and properties of non-nationals by South Africans are especially heartbreaking when we are reminded that for more than 10 years, there have been significant efforts at international, national and provincial level to understand and address the preconditions, drivers and impact of the recurrence of xenophobic violence across the country.

The response by government to this scrutiny was, in part, to adopt a National Action Plan (the NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. While a welcome signal of the prioritisation measures to address xenophobic violence in a systemic way, the NAP is completely, and strangely, silent on the issue of policing. This is deeply concerning as the role of the police has been held out again and again as both a possible contributing factor to community hostility towards non-nationals, and exacerbating the harm to non-nationals during violence through police inaction (at best) or “siding” with South African nationals (at worst).

A comprehensive national response to recurring xenophobic violence will only make an impact if it contains concrete measures to address how the SAPS understands and acts on its constitutionally mandated obligation to deliver equal and non-discriminatory services to all people who reside in the republic, regardless of their race or national origin.

For those who have been following this issue over the past 10 years, addressing the role of the SAPS as a means of addressing xenophobic violence is not novel. This includes the work of international human rights treaty bodies and special procedures, the African Commission on Human and People’s Rights, the South African Human Rights Commission’s official investigations, the National and Provincial Assemblies’ ad hoc joint committee on violence against foreign nationals, the Special Reference Group on Migration and Community Integration in KZN (chaired by Judge Navi Pillay), the diplomatic community, as well as the countless efforts of civil society and academics to frame and understand the problem as it pertains to policing practices.

Despite all these efforts, South Africa still lacks a publicly available strategic framework for improving the SAPS’s performance in relation to xenophobic violence.

Among the specific constraints of the SAPS’s failure to provide equitable and effective service delivery to non-nationals are lack of training for members on prevention, detection and investigation of xenophobic violence and related crimes; the absence of known systems within the SAPS to pre-empt and recognise trends that give rise to xenophobic violence; the categorisation of xenophobic violence as an ordinary crime without the need to adopt specific or targeted interventions; and the problematic attitude of some SAPS members towards non-nationals, which ranges from discriminatory to apathetic.

Perhaps most concerning is the perception by some members that by doing nothing, or by being perceived to support the violent expression of “grievances” of South African nationals, they are both doing the job demanded of them by their compatriots, and protecting themselves from potential victimisation by those same compatriots for being perceived to be on the side of non-nationals by providing them with effective policing services. This final disturbing aspect underscores the urgency with which the Minister of Police and SAPS management should address the lack of action by the SAPS to detect, prevent and combat xenophobic violence and related crimes as part of the broader and deeper work required to address community policing relations.

There is no quick fix to this issue, and it is an unfortunate inevitability that continued inaction means that South Africa will experience further recurrences of xenophobic violence before policing responses improve.

The recommendations in the Human Rights Watch report, as with the multitude of reports and findings on this issue over the past 10 years, highlight how complex and multisectoral the response to xenophobic violence must be. Indeed, the European Union is currently supporting an action by the African Policing Civilian Oversight Forum (APCOF) to understand and address the deficits in terms of early warning, SAPS actions and oversight. In recognition of the complexity of the issues, the project support will run for three years and include direct technical assistance to the SAPS and its stakeholders, if they want it.  

In the meantime, there are three areas that can be addressed through urgent action by the Police Minister, SAPS management and its oversight stakeholders that could see improvements to SAPS responses in the short term.

The first relates to attitudinal shifts within SAPS members. Recently, the SAPS invested resources to develop training on changing policing attitudes and practices towards sex workers, people who use drugs and others on the basis of their sexual orientation and gender identity. If we know that attitudes towards non-nationals is a challenge within the SAPS, and the delivery of equitable policing services is shaped by members’ attitudes, immediate investment in training to address this issue – starting at station level – could promote a shift in institutional culture towards respecting and promoting the right to equality and non-discrimination in policing services for non-nationals. The training should also be designed to provide members with the resilience required to resist pressure from local communities to do less than their constitutionally mandated role of equitable service delivery.

However, training alone is not the panacea, and a commensurate strengthening of oversight and accountability of the police with respect to equitable service also requires development and support. This includes not only internal SAPS reporting and accountability systems, but a more visible, consistent and persistent presence by key oversight stakeholders such as the South African Human Rights Commission and, where appropriate, the Independent Police Investigative Directorate.

Second, as also recommended in the Human Rights Watch report, the SAPS must become involved as an integral partner in the development and maintenance of early warning systems to stamp out xenophobic violence. Community-based models have been proposed and tested by civil society organisations, and the technical know-how is available to the SAPS in terms of the critical policing involvement at local station and cluster level.

Finally, the SAPS should make xenophobic violence and related crimes a distinct and publicly reportable category of crime. If the issue can be quantified, with reliable data on who is being victimised, where violence and related crimes are occurring, and the extent to which dockets are finalised for prosecution, more targeted interventions to improve SAPS responses can be developed.

The passage by the National Assembly of the Prevention and Combating of Hate Crimes and Hate Speech Bill into law would go some way towards supporting this action. During the Covid-19 lockdown, the Anti-Repression Working Group of the C-19 People’s Coalition has received reports on its Security Forces’ Violence Tracker and other reporting mechanisms that indicate being a foreign national was clearly or implicitly a motivating factor for victimisation, so the issue is not going away as the country’s attention turns to the pandemic and lockdown.

The last widespread round of xenophobic violence to affect the country brought with it significant embarrassment and diplomatic pressure on South Africa. Recall the scenes at the 2019 press conferences where the then minister of international relations and cooperation, and the police minister, were asked difficult questions by the diplomatic representatives of our neighbouring countries. If it happens again – and unfortunately all signs suggest it will – how will the Minister of Police and SAPS management justify the continuing inaction and complicity of the SAPS in the problem?

Hopefully, we don’t have to find out. DM

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