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COMMENTS ON AFRICA WATCH RECOMMENDATIONS MADE IN JANUARY 1991 TO THE SOUTH AFRICAN SECURITY FORCES

1. A. Issue clear and unequivocal instructions to all members of the security forces that bias against any group will not be tolerated - and that abuses of human rights by members of the forces will be punished.

B. Investigate all allegations of abuses by the SAP, the KZP and the SADF. Bring those suspected of committing abuses to a speedy and public trial and punish them accordingly.

A. Efforts Made to Eliminate Bias

Much more needs to be done to implement this recommendation. In their public statements, the security forces have claimed that bias in policing has been eliminated and that human rights abuses committed by members of the police force will be punished. However, publicly declared standards of conduct are only as effective as the measures taken to ensure their compliance. Unfortunately, the public statements of the security forces are entirely at odds with their practices in the black townships, where bias against ANC supporters is evident, police abuse of residents is commonplace, and deaths in detention are frequent.

The September 1991 National Peace Accord includes codes of conduct for members of the police forces. In setting forth basic principles for the conduct of police officers, the Accord states that "the police in particular shall emphasize that there is no place in the police force for policing practices based on personal or racial prejudice, corruption, excessive force or any unlawful actions."³ More specific provisions include requirements to respond promptly to calls for assistance, to endeavor to disarm persons who illegally bear dangerous weapons in any gathering, to arrest all those reasonably suspected of participating in any unlawful act and, following an arrest, to conduct a full, proper and expeditious inquiry. The Accord provides for the establishment within the SAP of a unit specifically to investigate complaints alleging police misconduct. On completion of an investigation, the unit is to make recommendations on disciplinary action to the Commissioner of Police. The Accord noted that a Code of Conduct for members of the SADF was being negotiated under the auspices of the National Peace Committee.⁴ More than a year later, this Code has not been finalized.

In August 1992, when South Africa township violence was under the international spotlight, folowing the massacre of 42 people in the township of Boipatong, the Law and Order Minister announced plans for changes in the SAP, including a new emphasis on training. The Minister enunciated basic principles to be included in police training, including total impartiality, absence of discrimination on grounds of race, color, creed or sex, lawful procedures by the police, and accountability to the public. A committee would also be appointed to evaluate all aspects of SAP training. Africa Watch believes that the inclusion of international observers and advisers in any attempt to revise SAP training would greatly enhance such efforts. For too many years, policing in South Africa was directed solely at enforcing apartheid. Many of those in the senior ranks of the SAP, including those who oversee the training of new recruits, rose to positions of power during the apartheid years. International assistance in the implementation of new training techniques could prove invaluable in building a force that will eliminate the bias of the past.

In addition to the change in emphasis in training, the Minister also announced that 18 white generals in the SAP would retire. Black police officers, who make up at least 40 percent of the force, would for the first time be considered for promotion to the office of general. Africa Watch welcomes the removal of racial barriers to promotion within the SAP. It should be noted, however, that none of the most senior ranking officers in the SAP who have been implicated in unlawful activities were among those scheduled to retire. In addition, it cannot be assumed that these candidates, merely because they are black, will ensure that respect for human rights is observed. They, too, were trained in the same value and operational system as the recent retirees and must be assessed on the basis of their past performance. While the Minister said efforts would be made to "sensitize all serving members on an urgent basis about the changed environment," he also said that a major restructuring of the police force would have to be negotiated at talks on the transition to non-racial democracy between the government and other political groups.⁵ Further delay in implementing necessary changes in the SAP, however, can only serve to increase the existing widespread distrust of the SAP among the African community.

Notwithstanding the principles set forth in the Peace Accord and subsequent government statements, police bias and misconduct remains prevalent. The attached Appendix details incidents in which police demonstrated a bias in favor of Inkatha and against supporters of the ANC (see Appendix, cases 4, 13, 14 and Police Bias and Violence), failed to respond to calls for assistance (see Appendix, cases 1, 2 and 14), failed to disarm persons carrying dangerous weapons in public places, including on commuter trains, or at gatherings (see Appendix, cases 8, 13, 22 and Police Investigation of Train Attacks), failed to arrest those suspected of conducting attacks (see Appendix, cases 4, 8, 10, 12, 20, 21, 22 and Police Investigation of Train Attacks), used political rivalries between the ANC and Inkatha to promote further chaos (see Appendix, case 3) and failed to conduct adequate inquiries into violent incidents (see Appendix, Police Investigation of Train Attacks). The evidence establishes that, irrespective of the Peace Accord and police training manuals, bias against anti-apartheid activists still pervades policing. Mistreatment of detainees and widespread harassment of anti-apartheid activists continues. (See for example, recent allegations by a prominent South African pathologist, Appendix, case 31, and Police Abuse of Detainees.)

B. Efforts to Investigate Abuses

The failure to implement this recommendation is perhaps the most serious obstacle to the creation of trust and confidence in the security forces.

Evidence continues to emerge of security force misconduct, yet few investigations have taken place. (See Appendix, Investigations of Police Misconduct, which describes investigations of serious misconduct known to have been undertaken.) In some cases, police officers have been convicted of criminal conduct, and in one case a senior police officer was sentenced to death for his involvement in the massacre of eleven people. In the vast majority of cases, however, members of the SAP, the KZP or the SADF have not been suspended from duty pending the outcome of an investigation into their conduct. Moreover, when judicial inquiries have recommended that the Attorney-General for the area consider prosecuting security force personnel for abusive conduct, few prosecutions have taken place. The infrequency of prosecutions is totally disproportionate to the vast number of eyewitness accounts of police and defence force personnel escorting attackers to attack sites, assisting attackers, standing by while others attacked residents, or carrying looted goods away from the scene of the attack. (See Appendix, cases 12, 20 and 21.)

The SAP

It would be incorrect to assume that because many allegations of abuse are made against members of the SAP that the force is entirely corrupt or that all officers are biased against the ANC. For example, one notable exception is Major Frank Dutton who was involved in a series of prosecutions that exposed police wrongdoing, and is now seconded to the Goldstone Commission. Nevertheless, while victims continue to see police officers abuse their powers, engage in illegal activities (including murder), and receive light sentences for serious crimes, trust in the SAP cannot be created. The SAP has demonstrated its inability to conduct full independent investigations into alleged misconduct by fellow officers. A number of cases illustrate this, including the Trust Feeds case in which one white and four black police officers were convicted of multiple murders and the police force was accused of an attempted cover-up (see Appendix, cases 23 and 33); the inadequate efforts made by police to investigate the assassination of Bheki Mlangeni, a lawyer involved in human rights work, suggesting attempts at a cover-up (see Appendix, case 15); and the forced resignation of Lieutenant-General Ronnie van der Westhuizen from the investigation into police misconduct at the Welverdiend Police Unit (see Appendix, case 29).⁶ As a result, it is incumbent on the government to appoint a body with all the necessary resources to conduct a full, independent investigation of all SAP activities, leading to full public disclosure and criminal prosecution for those found to have participated in illegal acts.

The government has taken a modest step in this direction. In August 1992, after years of ignoring the evidence, Law and Order Minister Hernus Kriel announced proposals for an independent unit to investigate complaints against the SAP. The unit would be staffed by SAP investigators who would resign from the SAP to become full-time employees of the unit. The unit would be headed by a serving or retired judge and would be assisted by 35 inspectors. In January 1993, as part of a series of announcements about the future of the police force, Mininster Kriel stated that an external body of ten regional ombudsmen would be created to whom members of the public could complain of police misbehavior. Africa Watch welcomes the creation of such bodies but notes that they can be successful only if they are completely independent of the SAP, and have all the necessary powers and resources to obtain relevant information, including adequate staff and the power to subpoena evidence and to protect witnesses. In the past, independent investigations into allegations of police misconduct, such as that conducted by the Harms Commission in 1990, proved unsuccessful when evidence was destroyed or disappeared or witnesses refused to provide evidence.⁷

Additional measures necessary to ensure greater police accountability would be the elimination the indemnity against prosecution presently enjoyed by policemen acting in "unrest areas," the repeal of the indemnity enacted by the government in October 1992 for all those confessing in secret to political crimes (this legislation is described below: see Comments on Africa Watch Recommendations made in January 1991 to the National Party Government, Recommendation 1), and the extension of the period during which the police may be sued in civil proceedings for harm inflicted on others while acting in the course of duty. The indemnity for political crimes is especially troubling, as it has only recently been enacted and displays the lack of governmental interest in ensuring that all persons who commit criminal acts, including members of the security forces, will be brought to justice.

The KZP

In contrast to the steps taken to increase accountability within the SAP, no independent public investigation of the KZP, the police force of the KwaZulu homeland, has been conducted to date, in spite of continuing reports of bias and abuse. In August 1992, Chief Gatsha Buthelezi, Chief Minister and Minister of Police of KwaZulu, stated that there was no reason for any investigation of the KZP. In late March 1993, the Goldstone Commission announced it would conduct an investigation into the KZP. Africa Watch welcomes this long overdue investigation.

The SADF

Some investigations into SADF activities have been conducted. These include the investigation by the Goldstone Commission into funding by the security forces of Inkatha and criminal gangs engaged in township violence (see Appendix, Covert Police Activities and case 47), the Goldstone Commission report on the behavior of 32 Battalion in Phola Park in April 1992 (see Appendix, case 49), the incomplete inquest into the security force link to the killing of Matthew Goniwe and others in 1985 (see Appendix, case 50), the Goldstone Commission report on covert operations of the SADF aimed at undermining the ANC (see Appendix, case 52), and the inquest into the death of anti-apartheid activist David Webster (see Appendix, case 55). While Africa Watch commends the Goldstone Commission for its efforts impartially to investigate abuses by the SADF, allegations of SADF abuses continue to emerge (see Appendix, cases 52, 53 and 54) and the government continues to resist appointing an independent investigator that would have a broad mandate.

Following an August 1992 report by the United Nations Secretary-General on South Africa that recommended a thorough investigation of all security forces, including the SADF, the KZP, MK and private security firms, the government indicated that such an investigation would be considered. The Goldstone Commission is perhaps the only body in South Africa today with sufficient credibility to conduct such an investigation. However, no such wide-ranging investigation has yet been undertaken, nor is the SADF the subject of any general enquiry into its activities.

The Goldstone Commission has undertaken an investigation into claims that Military Intelligence (MI) hired agents to conduct a covert campaign aimed at undermining the ANC (see Appendix, case 52). A dramatic raid on MI premises by the Commission led to a government-appointed internal investigation of all intelligence activities. On the basis of information produced by the internal investigation, President de Klerk dismissed 23 SADF officers and some civilians in December 1992. However, some of those most compromised by allegations of involvement in covert activities, including General "Kat" Liebenberg and Brigadier Christoffel van der Westhuizen, remain in office. The Goldstone Commission's investigation into MI is continuing.

2. Issue written orders that establish public guidelines about the procedures that security force personnel should follow in dealing with political violence.

The police have failed to adhere to the standards they accepted in the National Peace Accord for dealing with political violence generally. Allegations of their involvement in fomenting political violence continue (see Appendix, Police Bias and Violence).

The Peace Accord requires the police force to form a special unit to investigate crimes relating to political violence and to produce a monthly report detailing progress in ongoing investigations. The Accord calls for the convening of a National Peace Committee to be composed of members of the political parties who signed the Accord. The Committee has the right to require the police to submit a report on the progress of their investigations. The Police Commissioner is required to "have regard" to recommendations of the National Peace Committee but is not obligated to adopt Committee recommendations or explain his refusal to do so.⁸ The Accord also requires police to consult regularly with regional and local groups established by the Accord.

The general principles concerning police conduct set forth in the Accord also apply to policing of political violence. Among the principles which police have not observed are ones requiring them to use the least possible force to disperse gatherings, to carry a legible external form of identification, to have an identification number painted on the side of official police vehicles, to endeavor to disarm and disperse aggressors, and to give a gathering a reasonable time to comply with requests to disperse.

Political demonstrations and rallies continue to be a focus of political violence in South Africa. Although, in an effort to implement the Accord, the SAP formed a special 5,600 person anti-riot unit, the Internal Stability Division, this division, too, has repeatedly used excessive force while policing public demonstrations.

In April 1992, the Goldstone Commission requested a panel of international and South African experts to examine policing of public demonstrations. The panel criticized the use of lethal force by the police when adequate non-lethal substitutes could be made available. It urged the government to stop using the Internal Stability Division to police public demonstrations and to rely instead on local police and the development of a co-operative relationship between police and local communities. The panel urged a basic change in attitude among police officers who in the past have taken measures, including the use of violence, to prevent demonstrations from taking place. The panel emphasized that "[t]he right to demonstrate is as fundamental a right of democratic citizenship as the right to take part in political campaigns.... One of the central responsibilities of the police is to facilitate the right to demonstrate."⁹ It also stressed the need for consultation among organizers, local authorities and the police before and during demonstrations, as well as their joint responsibility to ensure that demonstrations were peaceful. Among the panel's recommendations for reform were the following:

1. Organizers should be required only to give "timely notice" (six days) to local government authorities of their intent to hold a demonstration. Currently, organizers are required to obtain a permit, and police frequently try to break up demonstrations for minor infractions of permit requirements. The panel also strongly emphasized that discussions should take place between police, local authorities and organizers of demonstrations to enable arrangements to be made in advance of demonstrations to allow them to proceed peacefully.

2. A universal ban should prohibit demonstrators from carrying weapons or replicas of weapons.

3. Lethal force should be used only when delay in its use and the use of anything less would subject police or others to a severe risk of death. Sufficient numbers of police officers should be deployed to police demonstrations, and they should be provided with riot shields, masks and other non-lethal equipment to enable them to control any violence that may erupt during a demonstration.

The government, the SAP, the ANC and Inkatha agreed to implement a system of advance discussion, which was used successfully during largely peaceful strikes of August 3 and 4 and a march on government buildings in Pretoria on August 5, 1992. Many other recommendations made by the panel were accepted by all participants, but Inkatha rejected a recommendation to prohibit the carrying of dangerous weapons, including "cultural weapons" such as assegais, at demonstrations.

Other recommendations made by the panel require the SAP to revise their training techniques to emphasize human relations and communication between police and the community. In addition, the panel recognized that new training would be required in the use of non-lethal equipment not previously used in South Africa. The panel's report was published and is available in South Africa.

While the government agreed with the recommendations made in the panel's report, it has not taken prompt steps to implement them. Some of the panel's recommendations called for legislative amendments, such as one enabling local authorities or local magistrates to determine the conditions applicable to a particular demonstration and one repealing the present permit requirements. Implementing legislation is being drafted by the Goldstone Commission for presentation to Parliament. The thrust of the report focused on establishing better relations between police and community relations, but the government has taken few significant steps to accomplish this, although in February 1993 a campaign to improve community relations was announced, some seven months after acceptance of the panel's recommendations. In addition, the government has refused to adopt stringent regulations governing the carrying of dangerous weapons (see Appendix, Regulation of Dangerous Weapons).

The recommendations have not affected the homelands, where lethal force has been used to prevent peaceful demonstrations. For example, failure to adhere strictly to the court-appointed route for a demonstration, which would be treated as the crime of trespass under the panel's guidelines, was used to justify the use of lethal force in Ciskei against demonstrators marching on the capital Bisho in September 1992. Twenty-eight unarmed civilians died and two hundred were injured as a result.

3. A. Afford adequate police protection to all groups and individuals.

B.Retrain security forces with an emphasis on peacekeeping and protection, rather than on enforcement of outmoded apartheid laws.

Although some progress has been made in beginning to address the second of these recommendations, there has not yet been any appreciable effect on police behavior. The anti-ANC bias of the SAP and the KZP, evident all too often in the black townships, demonstrates that they do not yet view themselves as peacekeepers whose responsibility is to protect South Africans of all races. Africa Watch has seen no significant change in the behavior of the security forces, many of whose members still fail to take adequate action to protect ANC supporters from attack. In a review of actions taken by the security forces since January 1991, Africa Watch found the following:

• The SAP failed on numerous occasions to take effective preventive action when warned in advance of attacks against residents of ANC-aligned townships or squatter camps.

• The SAP, when it was present, frequently failed to take any action to halt attacks by Inkatha supporters and escorted attackers from the scene of the attack without attempting to disarm them.

• The SAP repeatedly used excessive force when attempting to disperse demonstrators, causing unnecessary injuries and, in some cases, deaths.

• The SAP often mistreated suspects while in detention, sometimes causing their deaths.

• The KZP frequently demonstrated a bias in favor of Inkatha, and continued to attack residents seen to be non-Inkatha supporters and to break up meetings held by non-Inkatha supporters.

• The KZP failed to perform its functions as a peacekeeping force, and in fact on many occasions, inflamed violence.

• Both the SAP and the KZP failed to investigate incidents of violence adequately.

• The SAP attempted to cover up police complicity in the violence.

• The SADF and SAP demonstrated a bias in favor of Inkatha.

• When employed on township duty, the SADF frequently contributed to the violence and tended to use excessive force.

The conduct of the police following the June 1992 visit of President de Klerk to Boipatong township, after the killing of 42 in a raid from the nearby hostel, illustrates the poor training of the SAP in policing public demonstrations: in a stand-off between police and demonstrators, once again a crowd was fired upon without provocation, and three were killed. (See Appendix, case 25.) South African demonstrations have repeatedly turned into violent confrontations between the public and the police. As recently as February 1993, when taxi drivers protested in Johannesburg, police responded by using force; press images of police in riot-helmets using rubber bullets, tear gas, attack dogs and live ammunition again became a common sight.¹⁰ Police appear to be unwilling or incapable of isolating individuals who incite violence, disarming those who openly display dangerous weapons, or dispersing a crowd without causing panic and injury.

In order to improve their effectiveness in peacekeeping, the recommendations made by the panel of experts on policing of public demonstrations (see above) should be implemented and disseminated widely among members of the SAP and the SADF. Police equipment also contributes to abuses. Rather than wearing bullet-proof vests or carrying riot shields, police officers carry loaded firearms, thereby encouraging the use of excessive force. Clearly, alternative methods of riot control should be implemented.

Police training, which did not become racially integrated until 1992, has only recently been reprogrammed to reflect post-apartheid policies. Brigadier L. van Vuuren, commanding officer of the Police College of Pretoria, told reporters that the curriculum now includes subjects previously ignored, such as police ethics and human rights. "That teaches the student to start off with a respect for life, people, their belongings," he said.¹¹ These changes, however, will affect only the newest recruits and, in an existing force of more than 100,000, greater efforts are needed to retrain police in skills of peacekeeping and protecting citizens while maintaining respect for human rights, particularly for those who rose through the ranks during decades of counter-insurgency work. An independent researcher granted access to police training institutions concluded in a report published in July 1992, that "the organization as a whole has not yet succeeded in making the transition to a new set of values and aims for policing; to a large extent, the police force remains the victim of its history."¹² In January 1993, as part of a campaign to improve community relations, Minister of Law and Order Hernus Kriel announced various measures, including that police command would be decentralized, individual police retrained, and a system of "community oriented policing" introduced within six months. The minister admitted that some members of the police force still regarded the ANC as the enemy.¹³ In March 1993, a senior Dutch policeman monitoring violence in Sebokeng sharply criticized SAP methods, stating that police conduct in "slaloming" through mourners at a political funeral seemed designed "to cause trouble."¹⁴

In March 1993, the Police Commissioner announced a ten-point plan to combat the increased violence and crime in South Africa. The plan included increased use of reservists and watch groups to patrol the community, greater deployment of the SADF in community protection and in fighting crime, increased visibility for the SAP, greater use of scientific and technical methods for investigating crime, increased cooperation between the Department of Law and Order (to which the police force reports), the Department of Justice (which is responsible for the administration of justice) and the Department of Correctional Services (which administers prisons), prevention of the illegal import and distribution of weapons, and efforts to use available information to oppose bail applications and to provide evidence promptly to courts.¹⁵

Many of the problems identified by the Police Commissioner are indeed problems that require immediate attention. Africa Watch welcomes the effort, however belated, to combat crime in South Africa but notes that without public support it cannot hope to succeed. This is particularly true in the most violent areas where fear and distrust of the police is deep-rooted and where continuing police bias and violence undermine all other efforts to establish peace.

4. Consolidate the forces into one force in order to oversee actions and ensure neutrality.

At the time of our report in January 1991, South Africa had a multiplicity of police forces. That situation has not changed. The SAP, the police force of the central government, has no jurisdiction in the "independent" homelands, each of which has its own army and police, and limited jurisdiction in the "self-governing territories," which may also have their own police forces.¹⁶ The security forces in all parts of South Africa, including the "independent" homelands, receive direct and indirect support from the South African government, and South African officers are often seconded to leadership positions in homeland forces. In the "independent" homelands, separate security legislation is also in force, which in Bophuthatswana and Ciskei is comparable to that in effect in South Africa before reforms were introduced in 1991.

No effort has been made by the government or the security forces to consolidate the various security forces operating in South Africa and the ten homelands. Moreover, during 1992 the government enacted legislation to enable "cross-border" activities by homeland police forces,¹⁷ while it continued to transfer to KZP jurisdiction areas formerly policed by the SAP. Residents in those areas were not consulted and are justifiably afraid. In its third interim report on violence, the Goldstone Commission stated that the transfer of police stations to the KZP from the SAP should be halted, as it would "seriously aggravate the violence."

In Natal province, where many areas are suffering what has been described as a low-level civil war, the existence of two police forces has repeatedly thwarted attempts to prevent violent incidents from occurring. Residents of areas falling within the KwaZulu homeland have often requested and been denied assistance by the SAP on the grounds that the area falls within KZP jurisdiction. The attached Appendix describes incidents in which members of the KZP have demonstrated a strong bias in favor of Inkatha and incidents in which residents who are not Inkatha supporters have been refused assistance by the KZP when they were attacked. In some cases, residents were attacked by KZP members. (See Appendix, Complicity by the KwaZulu Police.)

Police forces in Ciskei and Bophuthatswana have been notorious for their opposition to the ANC and its supporters. Since our January 1991 report, ANC supporters in those homelands have repeatedly been assaulted or intimidated by members of their respective police forces. The Gqozo regime in Ciskei and the Mangope regime in Bophuthatswana, supported by their respective security forces, continue to prevent the ANC from organizing on their turf. ANC meetings have been forbidden or disrupted and persons attending have been harassed, arrested and detained.

On August 3, 1992, Brigadier Gqozo sought help from the South African army to prevent an ANC march from East London to Bisho, the capital of Ciskei and refused entry to a U.N. violence monitor who had planned to observe the march. On August 4, Gqozo ordered his police to set up a line of machine guns along the border with South Africa and gave an order to shoot any marchers who crossed. Under pressure from the National Peace Committee and the South African government, he later permitted the marchers to hold a meeting at the stadium in Bisho.¹⁸ One month later, on September 7, he ordered troops to be positioned outside the stadium at Bisho, where a peaceful demonstration organized by the ANC was to take place. When some unarmed demonstrators broke through a hole in the fence surrounding the stadium, troops opened fire, killing 28 demonstrators and wounding at least 200. The troops fired without warning and many of those injured were hit as they tried to flee. Brigadier Marius Oelschig, in command of the Ciskei forces on that day, was on secondment from South Africa.

The ultimate integration of all South Africa's security forces was agreed in principle at the Convention for a Democratic South Africa (Codesa).¹⁹ After the breakdown of Codesa, in June 1992, General A.J. "Kat" Liebenberg, Commander-in-Chief of the SADF, announced a plan to incorporate the armed wing of the ANC, "Umkhonto we Sizwe" (Spear of the Nation) (MK), the "Ystergarde" (Iron Guard) of the right-wing white Afrikaner Resistance Movement (AWB) and the defense forces of the "independent" homelands into a "super-army," which was rejected by the various unofficial military groups. Although the government has stated in the past that the disbanding of MK is a non-negotiable precondition to the creation of an interim multiparty government, the ANC refuses to disband it until a democratic government is in place. It also insists that MK can not be integrated into the SADF but that a new security force will need to be created that includes personnel from the various military groups presently existing in South Africa, including the Azanian People's Liberation Army (APLA; the military wing of the PAC), and the defense forces in each of the homelands. In bilateral negotiations between the government and ANC in early 1993, it was agreed that "transitional executive councils" would be established to supervise the operations of, amongst other things, the security forces during the run-up to multiracial elections.

In the interim, while the negotiations continue their halting progress, conscription into the SADF for whites only continues, and no concrete steps have been taken to consolidate the multiple security forces operating in South Africa.

5. Be more thorough in preparing cases to ensure that courts have evidence to convict perpetrators of violence.

Since January 1991, more than 6,000 people have died in political violence. Many of these deaths were witnessed by township residents, and human rights organizations have taken statements from many of them in an effort to assist investigations into police abuse. In addition, the government has hired more police officers in the past year who should be available for this work. Nevertheless, in the vast majority of cases, police have been unable to provide prosecutors with sufficient evidence to mount successful prosecution of suspects implicated in township violence.

The poor quality of police investigative techniques can be illustrated by two important examples. On June 19, 1992, a provincial Supreme Court judge dismissed all charges against seven suspects, including three residents of the KwaMadala Hostel, who were implicated in the funeral vigil massacre of 38 people in Sebokeng in January 1991, saying that the State's case had been riddled with "inconsistencies, contradictions and fabrications"²⁰ (See Appendix, case 1). Most recently, on April 13, 1993, charges were withdrawn by the prosecution against 27 of 74 men accused of involvement in the massacre of 43 people in Boipatong in June 1992 (See Appendix, case 14).²¹

The failure of the police successfully to prosecute persons responsible for acts of violence has permitted distrust of the police to continue and grow. This distrust can be blamed on the attitude of the police toward the investigation of crimes involving black victims; the bias of the police against ANC supporters; the investigative techniques developed during the apartheid years which relied heavily on confessions and largely ignored the need to seek forensic or other evidence; and finally, to a lesser extent, on the huge increase in general crime levels in South Africa.²²

An urgent need exists for a radical change in the attitudes towards crime investigation and training techniques, and to equip police with the investigatory skills they need to identify perpetrators of crime. Police must overcome the long history of black South African distrust of the police in order to conduct effective investigations.

In view of the high level of political violence and crime generally in South Africa, police often claim they are understaffed and that it is impossible for them to investigate every violent incident adequately. While police may be understaffed in some of the worst areas, the failure of the police to identify perpetrators of crime and to provide sufficient evidence for successful prosecutions is not entirely attributable to lack of manpower. In its presentation to the Goldstone Commission investigation into train violence, Lawyers for Human Rights contended that

the manner in which train attacks have been investigated thus far is a cause for concern. There has only been one successful prosecution to date. During the last year, the police have made only a handful of arrests as a result of train attacks.... They themselves do not appear to have made an enormous effort to investigate. In many instances, their information was more sketchy than that available in newspaper reports. Several newspaper reports mentioned witnesses by name, and even in these instances, the police have not bothered to trace the witnesses. On the East Rand, there are only two officers investigating train attacks ... yet one of them gave evidence to the effect that they do not have a heavy workload. It then became clear during cross-examination that they had simply not applied themselves to investigating properly.²³

Lawyers for Human Rights concluded that

as far as policing is concerned, it is primarily a matter of inefficiency, poor training and laziness. Whether there is a more sinister motive for the inadequate performance of the SAP remains to be seen. Certainly, an immediate increase in personpower ... a tightening-up of procedures, and a more enthusiastic pursuit of evidence and suspects, would make a noticeable difference.²⁴

In its interim report on the train violence, the Goldstone Commission noted that only one successful prosecution had taken place since attacks first began in 1990. The Commission plans to continue its investigation of train attacks. The attached Appendix details the poorly coordinated efforts made by police to investigate train attacks, in spite of continuing attacks and a rising death toll. (See Appendix, Train Attacks and Police Investigation of Train Attacks.)

In another illustration of poor policing and investigative techniques, Dr. Peter Waddington, director of criminal justice studies at the University of Reading in Great Britain, released his report in July 1992 on police conduct during and after the Boipatong massacre the previous month. His report characterized the police response to the massacre as "woefully inadequate":

Contingency planning was inadequate and non-commissioned officers were left at the scene of a rapidly unfolding disaster to make fateful decisions.... Command has been notable by its absence for much of the time; junior officers have not been adequately debriefed....²⁵

The report stated that, if the glaring failures of the investigation represented normal policing in South Africa,

the SAP is an unaccountable police force. The difficulties encountered by this inquiry team in uncovering the most routine aspects of the police response and investigation suggested systems do not exist for either internal or external accountability.²⁶

The report also criticized the manner in which police had investigated the deaths. For example, residents of KwaMadala Hostel, some of whom were later charged in connection with the massacre, were permitted to toss their weapons into a pile, making it virtually impossible to match weapons to individuals. As a result, the report concluded, it may never be possible to obtain convictions. A similar failure had been criticized by the Goldstone Commission in February 1992 following its investigation into the Bruntville massacre of December 1991 (see Appendix, case 22.) Clearly, police ignored the earlier recommendations concerning the gathering of evidence made in that report. The report also criticized the investigation as having a disproportionate focus on obtaining confessions rather than supporting evidence.²⁷

The police responded to the report by listing 16 mainly technical steps they would take to improve investigations, but they rejected its main conclusion that the SAP appeared to be an unaccountable police force, claiming that Dr. Waddington had not taken proper note of special conditions in South Africa. Given the glaring inadequacies highlighted by the Waddington report, such a response is extremely disappointing and reflects a lack of appreciation of the extent to which changes need to be made in the SAP and its operating and investigative procedures to comply with international standards.

6. Afford witnesses adequate protection by investigating the possibility of legal reforms that would enhance the prospect of witnesses cooperating with the prosecutions.

This recommendation has not been implemented, and the absence of a comprehensive witness protection program forms one of the most serious barriers to bringing those who perpetrate violence to justice. Although the government did agree to provide protection to witnesses testifying before the Goldstone Commission, in all other legal proceedings witnesses receive no protection, despite numerous incidents of intimidation, particularly in cases involving allegations of misconduct against police officers. The government has given no indication that it is considering the creation of such a program.

In some cases, private lawyers and human rights organizations, such as Lawyers for Human Rights, have provided protection for witnesses in political cases, including those testifying before the Goldstone Commission. In its April 1992 report, the Independent Board of Inquiry into Informal Repression (IBIIR), an independent human rights monitoring group based in Johannesburg, reviewed the scheme implemented by private lawyers and concluded that a private protection plan can never be as effective as one supported by the authorities. It described incidents of intimidation involving witnesses who had testified before the Goldstone Commission. In one case, the witness's mother was stabbed to death a few days after he had given evidence; another witness was shot to death after giving evidence concerning the violence in Phola Park.

In its second interim report released in April 1992, the Goldstone Commission recommended that it be given power to protect witnesses. In July, the government published regulations to implement a witness protection program for the Commission. The regulations did not provide for any major relocation and change of identity for witnesses, but made it a crime to try to gain access to, or to disclose the location of, protected witnesses, punishable by a fine of $660 or six months' imprisonment. Although some witnesses have been kept in hotels, others have been kept ‑- often for quite lengthy periods ‑- in housing on prison grounds, and there is considerable distrust of the program. Moreover, protection is only supplied while a witness is testifying before the Commission, leaving witnesses vulnerable to attack upon returning to their communities.

Intimidation of witnesses is also prevalent in cases of alleged police misconduct and in inquests into the death of well-known anti-apartheid activists. For example, the senior police investigator assigned to examine allegations of torture against the police unrest unit at Welverdiend in the eastern Transvaal admitted that the public was afraid to come forward with evidence for fear of retaliation. In an interview with reporters, he said, "You can't take steps against officers without evidence from the public, and most of the public doesn't have the confidence in the local police to go to the station and make a charge against an officer."²⁸ This same investigating officer was later removed from his position amid reports of attempts to cover up police complicity in the violence. In its third interim report, the Goldstone Commission repeated its call for government action, stating that "an adequate, well-known and trusted witness protection programme would encourage witnesses to report information to the police."²⁹

Africa Watch welcomes the introduction of a witness protection program for those testifying before the Goldstone Commission. However, because witnesses testifying before ordinary courts are also subjected to intimidation, Africa Watch urges the implementation of a witness protection program applicable to all trials where concerns of intimidation are real. In the past, the government has shown its willingness and ability to provide protection for witnesses, such as those who provided testimony to the Harms Commission. Clearly, it could and should do so now for those testifying in the ordinary courts.