On constitutional values, Marikana and the demise of the SADC TribunalPosted: 23 August, 2012
Section 1 of the Constitution sets out the founding values of the Republic of South Africa: dignity, equality, human rights, non-racialism, non-sexism, constitutional supremacy, rule of law, regular elections, accountability, responsiveness and openness.
The tragic shootings in Marikana, which took place on 16 August 2012, have led not only to much needed discussion on how equipped and prepared the police are to respond to violent protest, but also discussion about the underlying factors which led to these protests, and why they were so violent. Important questions must be asked about the shootings. Video footage of the incident suggests that it was not a clear cut case of self-defence. Accountability must prevail, both for workers responsible for violence and the police. Hopefully the Commission of Inquiry, established by President Jacob Zuma, will receive a broad mandate to investigate not only the shootings, but also a range of related issues related to what happened before and after.
The Constitution sets out ‘the achievement of equality’ as a founding value. The origins of the protest are of course a conflict over payment: a conflict over the value of work. One likely common factor in relation to both the origins of the miners’ protests and the violent turn of events is the extreme inequalities which exist in South Africa. Nowhere is this more vividly displayed than in the digging for platinum, one of the most precious metals in the world, for a meagre salary while company executives live in luxury.
While most would agree that the extreme inequality in South Africa is a problem, opinions on how to address this problem obviously differ. Perhaps it is true that to meet the salary demands of the workers would bankrupt the mining company and therefore just lead to higher unemployment. But if it is not possible to meet the workers’ demands, at least it should be possible to limit pay among those who earn the most. Perhaps there is a need in South Africa not only to regulate minimum wages but maximum wages. Measures to create equal opportunity should not be with the aim of having equal opportunity to rise to the class of exploiters.
The aftermath of the Marikana incident also raises issues of fair trial rights. Concerns may be raised with regard to how the arrested persons are dealt with. Over 200 arrested persons were remanded in custody on 20 August for further investigation and a new hearing set for a week later. This procedure is allowed under article 50(6)(d)(i) of the Criminal Procedure Act which provides that a bail hearing may be postponed for seven days at a time if the Court is of the opinion that it has ‘insufficient information or evidence at its disposal to reach a decision on the bail application’. However, the necessity to keep a person in custody should be considered on an individual basis. Was there clearly insufficient information in relation to all the individuals? Does the justice system have sufficient resources to handle cases of this nature? Public violence is clearly a crime with collective dimensions but each participant must still be judged on his or her own participation (Le Roux and Others v S (444/08)  ZASCA) 7). Violence should not be condoned, but there are clearly interests that stand against each other. Sole breadwinners stand to lose their jobs if they cannot return to work, for example, due to delays in the proceedings against them.
National rule of law co-exists with international supervision. It is therefore a pity that South Africa despite its constitutional obligation to uphold the rule of law supported a decision of the SADC Summit on 18 August to finally put the nail in the coffin on the SADC Tribunal which has been moribund for the last couple of years. (see Final communiqué of the 32nd summit of SADC Heads of State and Government, Maputo, Mozambique, August 18, 2012, para 24). The activities of the Tribunal were suspended since 2010 after Zimbabwe got upset over an adverse judgment.
Why would SADC member states establish a Tribunal with individual access in the first place only to dismantle it a few years later? The dismantling of the SADC Tribunal does not augur well for the rule of law in Southern Africa and is not very promising for the future of the regional human rights court, the African Court on Human and Peoples’ Rights. It remains to be seen what will happen if this court would deliver a judgment with which a state strongly disagrees with. Hopefully in such a scenario there would be a sufficient number of states that would stand up for the rule of law. South Africa should be one of them.
About the Author:
Dr Magnus Killander is Senior Lecturer and Head of Research at the Centre for Human Rights, Faculty of Law, University of Pretoria.