PROF. ANGELO DUBE

The onset of the Coronavirus in early 2020 and its attendant challenges has now gained notoriety. South Africa responded by enacting Lockdown Regulations under the Disaster Management Act. Like other governments across the globe, South Africa imposed limitations on the rights of citizens, particularly on freedom of movement. The regulations imposed strict limitations on the times during which individuals could move between their homes and other places. They generally allowed for people to leave their homes for valid reasons, such as to buy essential items or to seek medical assistance. Only essential services workers were permitted to move between their homes and their places of work. The regulations also clamped down on cross-provincial travel, and also saw the country’s borders shut down.

Despite the clear provisions in the Lockdown Regulations, security personnel had to contend with brazen lockdown violators, particularly in the major cities such as Johannesburg, Durban and Cape Town. These cities are situated in provinces which at one point or another were the Covid-19 hotspots of the country. The South African Government deployed members of the South African National Defence Force (SANDF) to assist police in law enforcement operations. This was the first time a very large contingent of the army (almost 76 000 members) was deployed to assist in civilian operations. Needless to say, this raised legal questions around the suitability of the army for civilian law enforcement operations.

The recent  High Court judgment in the case of Khosa and Others v Minister of Defence and Others flowed out of the lethal use of force by the military during a civilian operation. The judgment is interesting for legal scholarship, regarding the powers of the army and security officers, as well as the limitation of rights during a “state of disaster”. It is notable that since the South African Constitution does not permit limitations to the right to life and dignity, even during a “state of emergency”, the same would apply to South Africa’s lesser format (state of disaster). In the South African context, a state of emergency is regulated by section 37 of the Constitution. The declaration of a state of emergency can only be done through an Act of Parliament, whenever the life of the nation is under threat (from war, invasion, general insurrection, disorder, natural disaster or other public emergency). It can only last for 21 days, but can be extended with the approval of the National Assembly (which plays an oversight role). Such extensions cannot exceed three months as a time. During a state of emergency, human rights are generally suspended, with the exception of the rights to life, human dignity, and freedom from torture. A state of disaster on the other hand, does not flow from the Constitution, but flows from the Disaster Management Act. It is not subject to the same legislative oversight that the state of emergency enjoys. It is worth noting however, that both these states are subject to judicial oversight in the sense that any aggrieved individual is free to challenge their legality, or the legality of the consequences flowing from the declaration in a court of law.

Perhaps it is apposite to paint the context here. The South African Government knew that the lockdown would not be easily welcomed by all in society. Some would rush to court to challenge its constitutionality, and indeed many did: on the rights of Muslims to leave their homes and travel to the Mosque during the lockdown; the Gauteng Liquor Board threatened to sue to have the ban on liquor sales lifted; some odd NGO had its case thrown out by the Constitutional Court, where it challenged the legality of imposing the state of disaster; tobacco sellers unsuccessfully challenged the law banning sale of cigarettes. Others would simply defy the declaration and go about their lives as usual, holding street parties, insisting on large religious gatherings, standing idle at street corners in large groups etc. Hence the deployment of the army to assist the police in enforcing the lockdown regulations.

In the first two weeks of the lockdown, videos were circulating on social media depicting soldiers frog-marching those who violated the lockdown, making them do physical exercises such as squats, push ups and leopard crawls. What stood out in the government narrative was the confrontational stance adopted by the Minister of Police Bheki Cele. Whilst he did not outrightly commend the approach of the law enforcement officers, he was outright militant in his approach and in his speeches. Perhaps we should not lose sight of the fact that when Bheki Cele was still Commissioner of Police during the era of the former South African President Jacob Zuma, he became famous for militarising the police, and encouraging them, publicly, “to shoot to kill”. That could have given impetus to the excesses experienced during the first ten days of the lockdown.

The Khosacase, however, is quite unfortunate. Collins Khosa (now deceased) resided in one of the poorest neighbourhoods of Alexandra, Johannesburg. When soldiers approached him, he was inside his own property, his own dwelling place. The soldiers stormed his house after they saw a camp chair and a half-full glass of alcohol in his front yard. The entire family was assaulted, before the deceased was marched into the street with the alcohol in his hands, where he was further assaulted. He eventually succumbed to his injuries in the arms of his wife. The autopsy revealed that the fatal injury was inflicted by a blunt force to the head.

There seems to have been a misunderstanding of the instruction given on the part of law enforcement. (Initially, videos were circulating on social media, showing army personnel and police officers ordering people to retreat from their gardens, front porches, lawns etc into their houses). It was clear that the instruction had not been fully comprehended by these officers. The lockdown regulations restricted movement outside one’s home, not outside one’s house. Yet these officers were bullying and threatening residents to go back inside their houses.

What the Khosa case revealed was a paucity of guidelines on the part of the SANDF, on the role of soldiers in civilian law enforcement operations. It took an order of court, for the SANDF to develop and publicise these guidelines, after Collins Khosa’s death.

What is worth noting though is that despite the absence of a mission-specific code of conduct, the SANDF was still bound by and ought to have followed the prescripts of various international instruments that govern these scenarios. Of note is the United Nations Code of Conduct for Law Enforcement Officials of 1979. It enjoins officers to protect the communities they are serving; to respect and protect human dignity and human rights; and to only use force when strictly necessary. It further prohibits torture.

Their actions should have been further guided by the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990.  These Basic Principles enjoin the state and law enforcement agencies to adopt and implement regulations on the use of force against persons. It also enjoins officers to employ non-violent means as far as this is practicable. The UN Human Rights Committee in General Comment No. 36 also commented on the right to life as contained in the International Covenant on Civil and Political Rights. In it, it re-emphasizes the sanctity of the right to life (article 6 ICCPR) and its non-derogable nature; and the fact that it cannot and should not be arbitrarily taken away, as it happened in the Khosa matter. In para 12, the Committee states that deprivation of life is arbitrary where the taking of that life is inconsistent with international law or domestic law. Khosa’s life was taken away arbitrarily, given that the death penalty is outlawed in South Africa. Thus Khosa’s death was brought about by the excesses of officers who failed or refused to follow due process, and instead took the law into their own hands.

The family approached the High Court, after a failed attempt to lodge their application directly before the Constitutional Court. In the High Court proceedings, Fabricius J found that the right to dignity, to life, the right not to be tortured in any way and the right not to be treated or punished in a cruel, inhumane or degrading way are non-derogable even during a state of emergency. A further order instructed the responsible functionary to investigate the matter to completion and submit a report to the court by 4 June 2020; to immediately suspend all officers involved (pending the outcome of disciplinary procedures); and publish a code of conduct for all security personnel involved in lockdown enforcement. This code should be preceded by guidelines on when and how a person may be arrested, how to effect social distance, when force may be used etc, and these should be widely published via television, radio, twitter, facebook, whatsapp etc.

It would seem from the judgment that a lot still has to be done, to formulate the “rules of engagement” in civilian operations; and to publicize same. The Khosa matter is just a tip of the ice berg, the abuse of rights of civilians was rampant during the lockdown. Fortunately, the High Court also ordered that a reporting mechanism should be set up, its existence publicized via television, radio and digital media in all 11 official languages, to enable victims of human rights violations to approach and make use of that mechanism.

The implicated soldiers have since been cleared by an internal investigation, which found that there was no connection between the injuries Khosa sustained due to their actions and him dying.

As ordered by the High Court, the Chief of SANDF, General Shoke released a mission specific code of conduct for SANDF members, specific to the state of national disaster, aptly named Operation Notlela (Sesotho for ‘lock up’). This specific code of conduct would be adhered to in addition to the code of conduct for uniformed members of SANDF. It lists seven scenarios which soldiers may encounter during Operation Notlela, and provides dos and don’ts for each scenario. The highlighted scenarios are: (i) looting or public disturbance; (ii) persons drinking in their yard; (iii) provocation, insults or disrespect; (iv) roadblocks; (v) armed robbery; (vi) cash in transit; and (vii) general.

It is quite fascinating that as a response to the Khosa case, the SANDF actually formulated the most suitable responses to ‘a person drinking in his yard’. Under this scenario, the second suggested action is for SANDF members to ignore any person drinking in his yard. Confusingly, in the first instance, the code notes that ‘SANDF members have an inherent right to self-defence’. It is not clear what this reference means in the context of what SANDF members must do when confronted with a person drinking in his yard. Perhaps that was inserted there by mistake. The second instance makes sense, for it instructs members to ignore such a person.

The code continues to highlight the don’ts in that scenario. It indicates that SANDF members should not enter any such premises. The second instance is couched in confusing language, it states ‘Continue with patrol’. At first reading, it sounds like the code is directing soldiers in this fashion: ‘Don’ts: Continue with patrol’, which would mean they are to cease patrolling? Although the SANDF needed to urgently direct its members on acceptable behavior in order to avoid a repeat of the Khosa situation, the manner in which the code is couched is very confusing.

Further clauses of the code direct members of SANDF to issue verbal warnings, to exercise restraint, to ignore certain situations, to avoid physical fights with members of the public, not to shoot, not to fire warning shots, not to establish roadblocks independently and not to arrest and not to assault members of the public. The only time the code suggests the use of force, including deadly force is where members of SANDF respond to a robbery or cash in transit robbery.

The code also envisages an instance where a member finds himself in a situation not covered by the code, and stipulates that in such a case, the member must request guidelines through the chain of command. It then provides information of which channels aggrieved members of the public may utilize to report any misconduct or violation of the code.

Whilst the code is commendable, the glaring absence of guidelines on the use of physical exercise as punishment is concerning. Given this could be included under the directives on ‘not assaulting members of the public’, but in light of the prevalence of the use of push ups, leopard crawls and frog marches, it would have made more sense to include physical punishment as a specific category. Despite all this, the SANDF did well to publish the Operation Notlela Code of Conduct as directed by Fabricius J in the Khosa matter.

Angelo Dube is an Associate Professor of International Law at the University of South Africa, Pretoria Campus. His research interests include international criminal law, the African criminal court, the law of war, aviation law, universal jurisdiction, business law, and leadership. Angelo has published in the areas of aviation law, comparative constitutionalism and international criminal law. He also published a book entitled Universal Jurisdiction In Respect of International Crimes: Theory and Practice in Africa (2016) Galda Verlag, Germany. Follow him @DubeProf