25 Jan 2007: ISS Today: South Africa: Bloody Justice!

25 January 2007: South Africa: Bloody Justice!
Kamogelo Sebola, Daily Sun 

The front page of Daily Sun of the 23 January displays a gory picture of a man who had been at the receiving end of what the paper terms “crowd’s revenge”.  According to the accompanying report, but for the intervention of the police, the man would have been killed by the “crowd”.  Apparently the man had killed his girlfriend, Khosi Hlatshwayo, for “dumping him”.   Those who follow media will know that this incident is merely one of the many where people resort to home-brewed forms of justice.  

While the act of stabbing one’s lover to death is despicable and inexcusable in every way, so too are the acts of the members of the community who participated in the subsequent incident.  As the story goes, the two lovers were standing outside Khosi’s workplace discussing their relationship, which she wanted to end.  People nearby heard screams and went out into the street.  This is when they realised that the accused, now the victim, had stabbed his lover, who was at this stage lying on the ground.  The reaction of these members of the public was to apprehend the suspect.   After a chase, they caught him and the picture on the front page of the paper probable leaves no doubt as to the type of punishment that he received.  He has cuts and gashes all over his body and is covered with blood from head to toe. His clothes look like rags, is a result of the assault he endured.  In short, the picture is gruesome and does not make for pretty sight.

This incident, like many similar ones that take place around the country raises a number of important questions.  On the one hand, one wonders what type of people would assault a fellow human being in this way.  At this stage some, like my friends when I raised the issue, would retort: “he deserves it for he had no right to kill another person”.  On the other hand, one has to ask what members of the community—such as those who took part in this assault—understand about policing and law enforcement.  In my interpretation of the story the amount of force used could not possibly have been necessary for the apprehension of the suspect.  Clearly the intention was never that of effecting a citizen’s arrest.  The intention was punishment – probably the “death sentence”.  The view is that the suspect committed a crime (killed someone in this case) and therefore deserved punishment.   No one can argue with the need for punishment except that it is not for the community to administer this. 

Although one has to appreciate that the level of violent crime is high and that people feel unsafe, there is no logical justification for instant and brutal punishment.  Some would say—as it has indeed been pointed out to me—that there are no alternatives as the criminal justice system cannot be trusted to effectively deal with criminals.  This argument cannot be dismissed for people who say this would refer you to many incidences where they tried to follow the right channels: as good citizens, they reported crime to the police and such matters were not handled to their satisfaction. 

All the above said, it is extremely dangerous for any society to have citizens take the law into their own hands.  It does not matter what the criminal justice system does or does not do.  Nor does it matter that the criminal justice system is ineffective in dealing with criminals.  The danger is simply that there are no rules governing such practice.  It is, after all, precisely because human beings cannot be trusted with the use of violence/force that the state is given monopoly in its legal use. 

Some of the practical dangers of members of the public meting out justice include:
 

• Mistaken identity:  it is quite possible that a wrong person may be pointed out as the one who committed a crime.  In situations like this—where emotions are running high—there is no time for procedural safeguards aimed at verifying the identity of the person.  In fact it is not inconceivable that some people who joined in the chase and participated in the beating of the suspect acted with little regard for the details of what actually happened.  Hypothetically, A (the suspect) could have escaped and B (another person) could have happened to match his description.  What chance does B really have to prove his/her innocence?
• Malice: if I have a score to settle with A, all I need to do is rally support and convince people that he/she has committed a crime against me (or someone else).  There are incidents where all it took was for a woman to say “this is the guy who grabbed my bag yesterday in the train”. A real life story can illustrate this better.  At Olifantsfontein (Gauteng) there is an ATM notorious for robberies.  Two young men went there to withdraw money. The one was to stand guard and warn the other (drawing money) if a robbery was about to happen.  As would-be robbers approached the ATM, the one standing watch sounded the warning to which the other responded by simply discontinuing the transaction.  The sad thing is that the two young men ran away and went to a taxi rank.  While there, the would-be robbers—aggrieved that they could not proceed with their mission—came and accused the two young men of trying to rob them.  In an instant, the would-be victims became the villains.  The saving grace was that someone in the crowd had been a victim of these robbers before and loudly vouched for the two young men.  The robbers’ reaction? They got into their car and fled.
• Mistake of fact: in the incident of murder outlined above no one really knows what happened between the two people before the stabbing took place.  To illustrate the point—and solely for the purposes of this discussion, I am going to take Khosi out of the picture and paint another possible scenario where these two people are men and it is very late at the night.  One of them screams, and people in the vicinity discover that a person has been stabbed to death.  With no witnesses and the only evidence being the corpse on the ground, would it matter to the crowds if the other man was acting in self-defence? 
• Excessive punishment:  in many cases the only punishment given to suspects is death.  Those who survive do so because of some intervention such as that from the police, as in this case.  It is quite obvious that the punishment is excessive and seldom matches the offence—a criteria that forms the basic tenet of any form of justice administration.

The challenge, therefore, is getting communities to channel their anger and collective energy in the right direction.  They need to be encouraged to effect real citizen’s arrests and resist the temptation to ‘punish’.  However, the criminal justice functionaries also have to win the confidence of the public.  For as long as people believe that the criminal justice system is ineffective, chances of minimising the extent of self-brewed justice will remain slim.

Boyane Tshehla, Crime and Justice Programme, ISS Tshwane (Pretoria)