What and Who is a Criminal?

There is this buzz these days amongst the country’s top echelon about the need to effectively deal with crime and to render South Africa safe for its citizens. There is talk doing rounds that police must shoot to kill and talk of amending legislation in order to make this possible is gathering momentum. Talk that criminals are enjoying more rights is also rife and the president has been the main driver of this view. This leads one to ask what and who is a criminal and what rights are are being referred to. The police have always shot at criminals in order to defend their life and limb, why the sudden need to increase their powers. In attempting to tackle crime isn’t this talk of “shoot to kill” barking up the wrong tree?

A person is presumed innocent until the state proves his criminality beyond reasonable doubt and a court of law declares him a criminal. Otherwise before that we cannot label people criminals even if they were caught with their hands in the cookie jar. Our president, Jacob Zuma was accused of corruption and other crimes and he and his supporters rightly found it offensive to presume him a criminal before he had his day in court. He used all the rights provided for in the constitution and other legislation to ensure that his right to be presumed innocent and to a fair trial was protected. What right does he then have say that people that are criminally accused are enjoying more rights when he was, rightly, a beneficiary of that protection. When he says that criminals enjoy more rights who is he referring to because all criminals are serving all sorts of sentences that are meted out by the courts. Before a court of law declares somebody a criminal, the president, the Minister of Police or the Commissioner of Police, have no right to call anybody a criminal. That is the law and they should know!

In an effort to be seen to be doing something about crime our government is resorting to populist tactics which will not serve them good in the long run. A lot of crime that is happening does not need any use of force in order to prevent it nor does it need police to brandish their might in order to indicate who is in charge. In order to tackle crime in South Africa what is needed is the capacity and political will to deal with criminality at all spheres of society. So called criminals are walking the streets because they are able to buy dockets from the police or because it is easy for them to get bail because somebody did not do his job properly and place sufficient evidence before the court to prove that such a person is a flight risk. They are walking the streets because the majority of the police are functionally illiterate and cannot take proper statements that will stand the rigor of close scrutiny in a court of law. They are walking the street with impunity because the police force is overwhelmed by the amount of work that they have to do and there is serious lack of capacity.

As an example it is a well known fact that the Department of Home Affairs is rotten to the core and one just needs a few hundred rands to acquire a South African passport or ID. Over the years the Auditor General has exposed the corruption that is rampant within the government departments and municipalities in the awarding of tenders and billions of rands meant for service delivery have been lost. Senior Civil servants moonlighting as service providers have not been brought to book despite overwhelming evidence and many politicians are implicated in one scandal or another but nothing is done about it.

Guns that are used in armed robberies and hijackings have most of the time been stolen from the police or are AK-47 that were used in the liberation struggle by people who most often have skipped bail or are on some wanted list of the police. Surely there must be something fundamentally wrong when the state of affairs is like this and resorting to shoot to kill policies is not going to solve the problem.

The Commissioner of Police is implicated in a case of obstruction of justice because he allegedly interfered with the work of the police in a case where his friend is accused of drunken driving and culpable homicide where the friend skipped a red robot and collided with another motor vehicle, killing its occupants. How is the law going to bite this Commissioner and his friend? Isn’t it the duty of the state to prove beyond reasonable doubt that the Commissioner obstructed the implementation of justice and that his friend was drunk beyond the legal limit and as a result caused an accident where people lost their lives.

Mind you the constitution is the supreme law of this country and all this posturing by politicians will amount to nothing if the courts pronounce that all this machoness they are showing is unconstitutional. The Constitution is god and if god says so, it cannot be.