MARIKANA : THE CASE FOR POLITICAL CULPABILITY

Despite its inevitable limitations the Farlam Commision report, when linked to the broader policing context, and ministerial interference in the post massacre work of IPID (Independent Police Investigative Directorate) points to political culpability for the death of 34 people. Commissions make findings based on evidence placed before them and in this case the evidence was corrupted by systematic concealment and falsification by police management. Furthermore, its initial mandate to investigate the role of the Department of Mineral Resources or any other government department was subsequently withdrawn.
The findings against the police are damning : The tragic events of 16 August 2012 were a direct consequence of the ‘inexplicable’ decision of Maj Gen Mbombo, the North West Provincial Commissioner, endorsed by the National Commissioner and other senior management members at a secret meeting held late on the eve of the massacre. While the National Commissioner must bear responsibility for what happened it is essential to look beyond her role at reasons for Mbombo’s decision. The then Minister of Police, Nathi Mthethwa, is also liable by virtue of his office. Marikana was yet an example of all that is wrong with policing, a state of affairs for which successive executive members of government and commissioners should share responsibility – including the politicisation and re- militarisation of policing, the promotion of a ‘shoot to kill’ policy (of which the then Minister for Mineral Resources, Susan Shabangu, was an early proponent), the rewarding of incompetence with promotions, and their failure act against systemic police brutality.
The case against the police
In the run up to the killings of 16 August ten people (miners, security personnel and police) had been murdered during an unprotected strike at Lomnin. Large groups of strikers, armed with ’traditional’ weapons regularly gathered on small hills (koppies) demanding that mine management meet with them about their grievances. Senior police members with experience in crowd management, together with mine security, were in the process of implementing a ‘minimal risk’ plan to persuade the miners to disarm and disperse. Without consulting with these members Mbombo, lacking any requisite experience, took the sudden decision to change to a ‘tactical’ option to forcibly disarm, disperse and arrest the miners on 16 August (D Day). The decision was not dependent on there being any escalation in the violence. Two senior police members – Maj General Annandale – the Head of Special Operations from SAPS Headquarters, and Maj General Mpembe – warned her of the danger of bloodshed, and Annandale insisted that an entry about the danger be made in the Occurrence Book.
There was no legal basis for the action which followed: In addition to international norms, domestic laws stipulate that police should use minimal force, and lethal force only as a last resort if lives are endangered. The level of concealment of evidence, and lying by senior members – even to the extent of contradicting each other and themselves – is mind boggling, as was the ignorance of some senior members of policing policy and a crucial standing order (262). Despite deaths being anticipated (four mortuary vans were commissioned and 4 000 additional R5 rounds were ordered) first aid preparations were grossly inadequate, in contradiction to United Nations principles..
With one exception the fatalities occurred in two different places, termed Scene 1 and Scene 2. At scene 1fourteen men died on the spot and three died in hospital after 1327 live rounds of R5 gunfire was unleashed on them. Apart from military assasult weapons being unsuitable for crowd management, the fact that they were on automatic fire was widely condemned, with even a police colonel admitting gross negligence. The firing continued for approximately a minute after first cease fire call. The leading group of strikers would have moved towards the TRT line to escape teargas and stun grenades fired from behind them. Four members of the second group of miners were at such a distance from the TRT they could not have posed a threat to them. Many of the injured appeared shot from behind.
The shooting at Scene 2 (described as koppie 3) occurred fourteen minutes after the first shooting, with fourteen men dying at the scene and three dying in hospital. This shooting occurred despite the police having known about events at scene 1. Chaos reigned at Scene 2, with different units firing towards each other and a complete loss of command and control on the part of the police. Given the police’s garbled and contradictory version of events, interference with the scene of the crime, and the lack of adequate forensic and ballistics evidence the Commission was unable to make a finding and referred the matter for investigation under a senior prosecutor assisted by independent experts.
The vast majority of deaths (and injuries) were caused by R5 automatic fire and although other units (e.g. NIU and POP) were present the Tactical Response Team (TRT) appear the main culprits. Established by the previous Commissioner of Police, the TRT operating in KZN soon acquired a reputation for brutality which had been drawn to the attention of SAPS management months before Marikana,. Some of their activities involved assault, abuse and destruction of property and when IPID attempted to bring the culprits to book TRT management failed to co-operate in the holding of ID parades. Recommendations by IPID that disciplinary proceedings be taken against some members were ignored by the provincial commissioner.
The case against the politicians
The Commission was unable to answer the question of why there had been this inexplicable change of plan because ‘at the highest level’ the police had decided not to provide it with the true version of what happened at the meeting, even to the extent of preparing an inaccurate set of minutes and testifying in support of them. Mysteriously the memory stick recording the meeting had been lost.
What was known (but not initially divulged by the police) was that during ‘extraordinary’ discussions with Lomnin management Mbombo had referred to concerns that management could be seen as capitulating to AMCU (the new union supported by strikers which was in competition with NUM), There were also concerns about the role of Julius Malema, who had been expelled from the ANC, and who seemed to enjoy the confidence of the strikers, to the extent that he might be able to take credit for any breakthroughs made. Mbombo also mentioned that Cyril Ramaphosa – then an ANC NEC member with business interests in Lomnin – had called the Minister of Police, Mthethwa, urging that the police deal with the situation.
Ramaphosa’s subsequent defence was that he was concerned about the loss lives in what he maintained was a ‘purely criminal’ matter. Lacking any prima facie evidence to the contrary, the Commission declared that his intervention was ‘not improper’, or that it would have influenced the SAPS subsequent conduct. Given his own background in trade unionism is does seem strange that Ramaphosa should claim that the matter was purely a criminal one for since the rolling mass action of the early 1990s strikes have usually been accompanied by violence and, in some cases, deaths. Why had he not urged management to meet with miners and to desist from ordering miners to work despite the danger they faced in doing so (for which the Commission made an adverse finding against Lomnin)? Did he not know about the squalid living conditions, and that Lomnin had failed to honour an agreement with the Department of Mineral Resources to build 5 000 houses for miners? Although the Commission could not make a finding against the Department in terms of its failure to take any action (because of the withdrawal of its mandate) it did recommend further investigation.
Based on his international experience Dutch policing expert Kees de Rover told the Commission it was likely that, given the economic and political ramifications of what was happening at Marikana the police would be guided by the executive in reaching such a decision (and he indicated that the two senior SAPS members who emerged with more credibility during the hearing than their colleagues – agreed with him). There was, of course, no evidence to support this view given the manufactured paucity thereof. The Commission was thus unable to make a finding against Minister Mthethwa.
Experience in working on policing issues for the past twenty five years supports de Rover’s position that the directive came from the executive. There is political interference in policing at all levels of government which is linked to the conflation of the interests of the governing political party and those of the state – which should, in a democracy, be kept separate. Leaving aside the intervention by Ramaphosa, events at Marikana posed a problem for the ANC itself because an AMCU victory might further erode support for NUM – an important component of its Alliance partner COSATU – and any credibility Malema earned would be at the expense of his erstwhile party. Given political interventions in policing, including the deployment of two party heavyweights as commissioners, how likely is it that Phiyega would have been appointed to her position had she not been pliable enough to take political instructions? Informed sources made this observation when she was appointed as National Commission.
Executive members of government also played a crucial role in covering up after the event. The Commission berates IPID for its lack of independence, but that independence exists only on paper for it relies on SAPS crime scene management and ballistics. However, it does on occasion use private pathologists – which is often essential because there are insufficient specialists at state facilities due to the the disastrous handling of forensic mortuary services by the Department of Health. Shortly after the massacre an inter-ministerial committee ordered the bodies of the victims to be removed to a state facility some distance away, and for all 34 post mortems to be completed within two days. Nor were X-rays of the bodies made available to the doctors tasked with performing the rushed autopsies. The use of radiography equipment is a crucial diagnostic tool when making autopsy findings on the bodies of shooting victims. It is not surprising that the Commission was left in the dark about events at Scene 2 – and that there was disagreement between one of the doctors working under extreme pressure and an independent expert about the instrument used to kill one of the victims.
The way forward
Six weeks after the release of the Farlam report the focus is on whether the prime scapegoat, National Commissioner Phiyega, will bite the bullet of redeployment (or a golden handshake) – and probably be replaced with another political deployee. Despite the calls by the Commission for de-militarisation the military ranks remain, as does the anti-constitutional policing culture which spawned the Marikana excesses, including routine brutality and torture.
On 22 July, Glebelands resident Richard Nzama – who was already in a traumatised state because he had been shot and injured some months before, and faced constant death threats –was brutally tortured. He was tubed (near suffocation), and sustained injuries to different parts of his body, including his ear, eye, neck and teeth (which were loosened). This torture apparently took place with a view to the police forcing him to make a statement. The police also instructed him to run away – a classic excuse used by the SAPS to kill detainees. A court order that he receive medical treatment, including psychiatric, in the hospital at Westville prison while detained there, and be kept on his own for safety reasons, was ignored by the police, whose job it is to organise medical treatment for awaiting trial prisoners. Only after various interventions to senior police and prison management members did he receive medical treatment almost two weeks after admission – from the doctor who treats all the prisoners beaten by the police, he said.
Only when policing is de-politicised and appointments are made on merit – and when IPID is removed from the control of the police, given the resources to be independent, and reports to an independent board and not the Minister of Police – is our unconstitutional policing culture likely to start a slow and long overdue change. There is no sign of any political will to make such changes.