On the 3rd of March 2010 the Centre for Constitutional Rights filed a formal complaint with the South African Human Rights Commission regarding the violation of various human rights of Mr Chumani Maxwele by members of the Presidential special protection unit. The violations occurred when he was unlawful arrested and detained on the 10th of February last year for allegedly pointing his middle finger at a convoy of police vehicles which were purportedly transporting the President.
In terms of newspaper reports at the time, Mr Maxwele was bundled into the unit’s car, pushed onto the ground, shouted at, was taken to the Rondebosch Police Station and then to the Mowbray Police Station and later to holding cells at the Wynberg Magistrate’s Court, where he was detained for 24 hours. Whilst at the cells, he was manhandled and subjected to cruel and inhumane interrogation. Furthermore, his home was searched by police officers whilst he was being detained and his belongings and notebooks were rifled through. He was charged with crimen injuria and resisting arrest, but these charges were all dropped upon his release from detention. The Police also insisted that Mr Maxwele should write a letter of apologising for his behaviour.
The Police Ministry, through its spokesperson, justified this extreme conduct on two grounds. Firstly it maintained that the gesture of pointing a middle finger amounted to conduct which would promote hatred.. Secondly, it maintained that Mr Maxwele became aggressive and swore at the members. Neither grounds were correct or legally sound. There is no law that prohibits gesturing and neither is there any law that prohibits swearing. In fact the opposite prevails and our Constitution contemplates a society that is premised on freedom of movement and the free flow of information and ideas. To this end, the Constitution expressly guarantees the right of everyone to freedom of expression, which includes, inter alia, the freedom to receive or impart information or ideas, including criticism. The only forms of expression that are prohibited are those clearly defined in section 16 (2) which includes expression that amounts to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
The conduct was thus in the Centre’s view both unlawful and in violation of a number of constitutional rights. These included Mr Maxwale’s right to human dignity, to freedom and security of the person, to privacy, to freedom of expression, to peaceful and unarmed demonstration, to make political choices and to certain conditions when in of his detention. Equally importantly, the Centre believed that the conduct of the unit members reflected an attitude of intolerance and unfettered power which is in direct violation of the supremacy of the Constitution and the constitutional principle that the State must respect, protect, promote and fulfill the rights in the Bill of Rights.
The Centre accordingly asked the SAHRC to investigate these violations and if found to be true to secure appropriate redress. This included bringing the provisions of the Constitution to the attention of the South African Police Service and specifically the members of the Special Protection Unit and demanding a public apology to Mr Maxwele.
Against this background the Centre welcomes today’s findings of the Commission that all the listed human rights had in fact been violated by the Police.
It particularly welcomes the recommendations which include:
A written apology by the Minister on behalf of all the members who were involved in the incident;
An acknowledgement by the SAPs that they accept the supremacy of the Constitution as well as their duty to respect, protect, promote and fulfill the rights in the Bill of Rights; and
A report to the Commission setting out their plan, with specific timeframes, of the steps that they will take to ensure that the SAPS acts, teaches and requires its members and specifically members of the unit, to act in accordance with the Constitution.
Although the conduct of the SAPs was premised on an incorrect understanding of the law, it clearly indicated ignorance of our new constitutional dispensation. It amounted to behaviour that was both unlawful and unconstitutional and that amounted to an abuse of power in the grossest degree. It was reminiscent of the use of the police during the apartheid regime to suppress the freedoms and rights of the majority and which was aimed at dehumanizing any opposition.
The Centre would also like to point out that although Mr Maxwele has instituted civil proceedings against the SAPS, civil proceedings cannot result in the important remedial steps that the Commission has now ordered. The fact is that the failure of the SAPS to observe fundamental constitutional rights in the Maxwele case poses a threat to the rights of all South Africans – and was by no means limited to the immediate harm and indignity to which Mr Maxwele was subjected.
The Centre believes that the remedial steps that the Commission has now ordered will go a long way to ensuring that our nascent democracy continues to be founded on the supremacy of the Constitution and on the values of human dignity and the advancement of human rights and freedoms.
The Centre would like to thank the Human Rights Commission for its diligence and persistence in investigating the complaint and in upholding fundamental constitutional rights.
Nichola de Havilland
