Lockdown and the application of the law

If you’ve been keeping yourself occupied on social media during the lockdown, you’ve probably seen videos of law enforcement making people roll on the floor, do squats and other forms of extrajudicial “justice”. But what are the laws around it?

Can we just take a moment to express how great the president’s speech was on Monday night?

Not simply because of its directness, but also because it is, in many respects, a better job than most, if not all, world leaders. One omission though, and one that is probably strategic as it would go against the grain of his narrative, was addressing the clear extrajudicial punishments being meted out by his agents of the executive.

Make no mistake. There are images of soldiers helping the elderly push shopping trolleys and that’s pretty awesome. However, for now, I’d like to focus on being made to roll in the dust.

When the pre-lockdown-bars-closing-at-six announcement was made, I initially had a little chuckle because the announcement did not include any form of sanction.

One learns very quickly that any law without teeth is an ineffective law that people will be swift to ignore. That chuckle last ed as long as until I read the regulations and I thought, “Wow! He’s pretty serious”. The president has a habit of announcing the lay information but hiding the teeth in the fine print.

This was made evident to me yesterday as I got a call to bail somebody out of holding. The police were telling a line of people how they were disobeying the orders of the president with a clear sense of frustration. That frustration was matched by the peoples’ shock when they learned they had to pay a R5,000 fine … and that’s getting off lightly.

They could, for example, have been subjected to six months in prison but the police know that won’t happen. The moment that holding cells get too full, investigators get too busy and/or the resources cannot cope with the demand, a natural reaction is to drop the lesser charges.

One must also consider the philosophy behind our post-94 legal system. It is one of “restorative justice” which is a far cry from our former ideology of “retributive justice”.

The former focuses on making people understand their mistakes and become more law-abiding while the latter focuses on punishing criminals for their misdeeds. Naturally each philosophy comes with its own pros and cons, yet restorative justice has a significant con in the age of Covid-19; it takes time to be effective … time we simply don’t have.

So what should happen? I’m not convinced we can simply make a paradigm shift as major as foregoing the basis of our criminal legal system for three or so weeks.

Doing so would be to admit that our legal system is baseless.

We also cannot just be seen to be letting people go because the system can’t handle them because doing so would remove the teeth from the regulations.

In this regard, extrajudicial punishment seems like an effective compromise but how legal is it? Is the effect a justification for the action?

Let’s answer the easier question first. Do the circumstances and effect justify a breach of law? Simply put, no!

There are situations where the law caters for circumstances and effect, like when you kill somebody who was about to fire a gun at you in the name of self-defence … but the law makes consideration for such circumstance.

Even in instances where it doesn’t, you can try your hand at a compelling argument in court but that involves going to court.

In the instance of the lockdown, again, there is not much time to go through all that and the likelihood of having the requisite resources for such a swift yet extensive litigation is low.

In other words, it’s unlikely that one can rely on the effect of extrajudicial punishments in stopping the virus as a legitimate reason to breach the law … but that wouldn’t be an issue if extra-judicial punishments were a breach of law so we should have a look at that.

How it usually works is one gets into trouble, police threaten arrest, person does some form of punishment, police do not arrest.

It’s the punishment aspect that is worthy of inspection as we know that were the punishment a payoff, it would amount to bribery, but what if it were doing 10 pushups.

For this we need to look at the Prevention and Combating of Corrupt Activities Act of 2004, the same Act that makes bribery illegal. The receiving of money is included. The Act prevents any public officer from offering or receiving any gratification in order to act in a manner that (among others) abuses position of authority, violates a set of rules.

Gratification is broadly defined so even a thank you e-mail sent to your superior would be considered such.

Escaping a night in a holding cell would be considered gratification bestowed upon an accused so if they were to get away with extrajudicial punishments, they’d have to look at what’s exchanged for gratification.

While the regulations do not amount to a compulsion to make arrests, they do give a certain nudge so whether the trade-off of punishment for avoiding a write up and night in holding amounts to abuse of authority could be a grey area, at least enough to have the executive authority look the other way … for now.

The issue is that while extrajudicial punishments may be effective and in some ways, a grey area compromise, that grey will quickly be questioned if heavy-handed policing continues.

Unless the president does something below the surface to curb the police’s heavy-handedness, he’s not going to be able to avoid addressing it much longer.

Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.

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