The Marikana commission of inquiry’s terms of reference are wide; too wide for retired judge Ian Farlam to complete his inquiry in the four months he was initially given.

With respect to the police, Farlam must investigate the nature, application and extent of standing orders, policy and other relevant legislation that gave rise to the events at Marikana.

It is a tall order.

This broad mandate given to Farlam, combined with the funding of the injured and arrested miners’ legal team, has contributed to the extension of the commission’s life on two occasions. It is frustrating, and does nothing to hasten the process of delivering some kind of justice to the Marikana victims and their families.

To the frustration of a number of critics, the police witnesses called thus far have not been the men who actually pulled their triggers at Marikana. Instead, they have been their superiors – the men who must implement a police policy known as standing order 262.

This order directs the police in crowd management situations. It says that minimum and proportional force must be used as a last resort. Where live ammunition is used, it can be done only on instruction from a commanding officer on the scene, and the use of such force can still lead to a criminal investigation being instituted.

The delay of justice for the Marikana victims also gives President Jacob Zuma and his security cluster in Cabinet further license to avoid apportioning blame – or accepting it.

It is in everyone’s interests for Farlam to make findings about what happened at Marikana as soon as possible.

But those who would have Farlam cut to the chase forget that the police’s actions at Marikana did not occur in a vacuum, and the commission must be given the time and space to test the policies that underlie their behaviour.

Farlam, if his commission is to avoid becoming little more than a parking spot for a politically uncomfortable issue, must not skim over the details of how the South African police disperse crowds. And he must locate these findings within the broader socioeconomic and political conditions in which Marikana occurred.

The Mail & Guardian’s Sam Sole put it like this, in a piece written shortly after the massacre:

“The current state’s capacity to deal with unrest – complex and hydra-headed political and economic revolt – is way, way below that of the apartheid state. The incompetent management of the scene at Marikana, which led to the wild shooting (and God knows what else), is a manifestation of state weakness, not state power.”

As Sole observed, ours is a state that outsources its responsibility and that of its powerful mining friends to a commission of inquiry.

It is a state that talks of peace accords and stakeholder agreements while leaving the real work – investigating the socioeconomic and other causes that led to Marikana – to Farlam and his fellow commissioners.

About a year before Marikana, the police acknowledged to parliament that standing order 262 needed to be revised: it was wholly unsatisfactory in dealing with violent protests in particular. The policy remains unrevised.

The broader legislative framework that belies standing order 262 asks the police to find a balance between letting people exercise their right to protest and the somewhat undefined concept of “the maintenance of peace and order”.

Various observers, including the Independent Police Investigative Directorate and the Institute for Security Studies, have pointed out that this directive places too much trust in individual police officers to interpret the use of “minimum force” in the heat of the moment.

In the run-up to the 2010 Soccer World Cup, the police opted to refine their policy, especially with regards to the distance between the police line and the crowd. But no formal adoption of policy took place, and the police have largely continued with their former policies as a result.

This is perhaps why the police witnesses called thus far have been those who should have been in control of the scene at Marikana, while those who received instructions from these superiors will only be called later.

This is because it remains vital for the commission to unpack, albeit at a snail’s pace, the implementation of the police’s crowd dispersal strategies.

What the commission has uncovered thus far is telling: for example, while the police know that tear gas was used on August 13, they cannot tell the commission who ordered the command to use it or why.

Similarly with August 16: the police have thus far been unable to pin point exactly who issued the directive to use live ammunition.

It points to an uncoordinated approach to crowd management –the police are able to avoid accountability because a lack of planning also means there is no proper record keeping and no hard evidence that points to who should be held responsible.

In 2011, with the revival of the Public Order Policing (POP) squads, Parliament heard that police needed a “refresher course” on crowd dispersal that was human rights based and founded in international best practice. This was because research had shown that the available training “lacks content”.

Perhaps government’s own research on the subject lacks content, too. A spike in violence in public protests since 2009 is evident from the police’s statistics – but this particular bit of research fails to deal simultaneously with the drivers of this violence, and, more importantly, to interrogate the police’s culpability for the violence at protests.

Policing regulations say the police must “prevent provocation”, but little detail is given on how this is to be done, with the exception of ideas on how the police can distance themselves from the crowd. The crux of these ideas is that police should use negotiation tactics ahead of violence. But around 2008 an acknowledgement was made that this approach gave large crowds too much ground and was more likely to lead to violence.

These policies are underpinned by a broader mindset: that the police’s duty to protect the property and life (in that order) of non-participants in public protests comes before the rights of the protestors.

Police are also supposed to ensure that the “leaders of the pack” are identified for interrogation at a later stage, and the police are also to ensure the protest is recorded for reference purposes.

But for this approach to work, the police must be trusted to self-police in crowd-management situations. Evidence at the Farlam Commission thus far has shown that they are ill-equipped, and probably unwilling, to do so.

Where there is video evidence presented to Farlam – of the events of August 13, for example – there is also evidence that suggests the police tampered with their own recordings.

The nuts and bolts of what happened that day – who ordered the use of tear gas, for example – are missing from the recordings given to Farlam.

This in turn leads us to the present day. Police witnesses like General William Mpembe have remained on the stand for months on end, unable to provide Farlam with a clear sequence of events.

There is a broader trend in this regard: from 2002 to 2011 the IPID investigated 204 cases of abuse against police officers relating to crowd control situations.

Most of the accused were ordinary station members.

The majority of the cases against the officers were dropped because the policemen alleged to have committed the crimes could not be identified.

The South African police are not alone in this practice.

In the United States, for example, a paper by the American Civil Liberties Union (ACLU) published in 2010 put it succinctly, in a case study of crowd policing in Washington:

A “major feature” of crowd policing is the failure of the police to accurately record information so that those who are rightfully arrested can be prosecuted, and that police officers who acted unlawfully can be promptly disciplined.

The ACLU authors concluded that, often, arrests of protestors who allegedly commit crimes are not made with criminal prosecution being the endgame in mind.

Instead, arbitrary arrests are made simply to keep people off the streets – and to keep the peace.

National police commissioner, General Riah Phiyega’s evidence to Farlam speaks to this, albeit indirectly. Here Farlam asked Phiyega to talk about the police’s approach to crowd policing in hypothetical terms:

“What if the police were called to Marikana by the striking miners because they felt they were under attack by Lonmin’s security, for example? Would the police have gone to Marikana in that situation?”

“Yes,” she replied. Her justification? Because the police have a duty to maintain the peace.

The acknowledgment that a crime against the miners – possibly attempted murder – might have occurred was absent from her response.

That the police arrived at Marikana, especially on August 16, apparently with the intention of arresting miners who were suspected of being armed, speaks to this.

Mpembe told Farlam that the police wanted to divide them into smaller groups of about twenty each, disarm them, and arrest those carrying arms illegally.

The entire plan for that day was not to contain the crowd: it was to disperse them on the basis that the maintenance of law and order was at stake.

Around the world a consensus is developing which says that “the peace” is not a concept that the police should be allowed to define for their own ends, on the spot, live ammunition in hand.

This is why in India, only a magistrate can give the police permission to use live gunfire on a crowd of protestors.

In that country, if a crowd of five or more refuses to disperse upon being warned, a magistrate can order the armed forces to disperse them. Even then, “as little force as possible must be used.”

When force is used, the intention must be to disperse the crowd, no more. As soon as the first crowd member leaves the scene, the shooting must stop. Punitive or repressive intent is not allowed.

Crucial to Mpembe’s evidence is also that the police felt they had a duty to protect the business and private residences in and around Lonmin, and that this formed the basis for their need to break up the striking workers.

This is quite different from the idea that the strikers had to be removed because they were at an illegal gathering – which is another version of events often told by the police.

It also does not provide enough justification for the use of maximum force.

Either the police went to Marikana armed with live ammunition because they envisioned having to murder other people in an act of unavoidable self-defense, or they were trying to disperse the miners, as a last resort, with maximum force.

Neither of these two versions, if they are to be accepted at face value, can pass the test of constitutionality.

The illegal activities that happened at Marikana in the days leading up to the 16th did not render the strike illegal. That two police officers were killed during the preceding week also did not give the deployed policemen license to treat every Marikana striker as a potential murderer. That strikers carried traditional weapons did not render their lives any less protected by the Constitution.

It speaks to another flaw in the police’s policy: the broader approach to crowd control that confines the police to either containing the crowd or dispersing them.

Containment often means moving the crowd to a “safe” area, in an attempt to protect surrounding properties.

This was the case at Marikana: evidence given at the Farlam Commission shows that, on August 13, police moved the miners to the notorious koppie in an attempt to protect a nearby railway line from damage.

Again, police used force – tear gas – that day. Dispersal was not the police’s aim here, containment was. So why was force used during a containment operation?

Should force ever be used during a containment operation? Perhaps an ideal containment operation looks like the Washington police department’s attempts to police a march of the Klu Klux Klan in October 1991. Police were faced with an angry crowd of observers – opponents of the Klan – who threw rocks and bottles at the police.

The police did not retaliate, and instead protected the Klan’s right to march, however deplorable the robed racists’ motives were.

Besides this example, the Washington police are by no means the golden standard of crowd policing. But their actions that October are in stark contrast to those of the South African police, who regularly engage protestors with force, either in the interests of keeping the peace or in self-defence.

Farlam must interrogate this, but the police also have a duty to review their own policies in the interim. They would be wise to incorporate Farlam’s eventual findings into their final policies, but nothing stops them from beginning a process of introspection while Farlam continues his work.

At any point during the year that has passed the police could have reviewed standing order 262.

Yet they arrived at the first anniversary of Marikana two weeks ago armed with live ammunition and the same dispersal policies that led to the murder of 34 men a year ago.

And so those who would have Farlam deal only with the bare bones of what happened at Marikana fail to understand that the Marikana massacre in its entirety was not an aberration; a sort of genetic mutation in an otherwise functional fixed order.

To ask that of Farlam is to fail to understand that Marikana is a proliferation of a profoundly unjust system, in which workers are damned if they rise up, and damned if they don’t.

It is a system in which police do not arrive on a scene to protect the rights of the workers to gather and to strike. Instead, they use maximum force, ostensibly for the protection of those gathered anywhere but on the koppie.

It is a system in which the police protect the rights of those around the strikers first by dispersing a group of people who were judged guilty as criminals before the first knob-kierrie was raised in the air; a group of people who were labelled hooligans in waiting by virtue of the mere act of their gathering.

The system was designed so. Its design must be tested and be found wanting. It is within Farlam’s mandate to test it. And if Farlam will not do it, who will?

Main picture: Miners at a 2013 May Day rally in Marikana – by Delwyn Verasamy



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