How SA can turn the rising tide against vigilantism

A wave of vigilante violence has recently rocked the working class suburb of Rosettenville, south of Johannesburg. It’s the latest instalment of a now all-too familiar phenomenon in South Africa.

Images of people being brutally beaten or even killed by a vengeful mob are a regular feature on television, in newspapers and on social media. Private citizens often take the law into their own hands to punish perceived wrongdoers in their communities. Their aim is to improve their collective security and social order where formal law enforcement is absent or ineffective.

The fundamental issues of law, order, justice and power that lie at the heart of vigilante activities have a myriad of significant wider implications. Vigilantism challenges the formal boundary between crime and punishment, between law and justice.

Despite its ubiquity, vigilantism has largely been overlooked as a legal topic worthy of in-depth consideration, or even definition. My recent doctoral study aimed to fill this gap.

The central questions my research sought to answer were how to conceptualise, understand and address vigilantism from a legal perspective.

My study showed that vigilantes resort to violence to “fill the gap” left by unsatisfactory law enforcement. This is because of the state’s failure to command widespread legitimacy.

This loss of legitimacy is due to the state being inefficient, corrupt and out of touch with popular concerns. The situation is exacerbated in marginalised and poverty stricken communities, where violence is commonplace.

Vigilantes as both victims and perpetrators

There are inherent contradictions in how we respond towards vigilantism in South Africa. Vigilantes are viewed as criminals who deserve to be punished. But they are also sometimes portrayed as being proactive citizens fighting crime. As Judge Binns-Ward J in one case stated:

vigilantes are seen by many in the communities … as upstanding and respectable members of the community, and indeed see themselves as serving the interests of their community. On reflection, even if wholly unacceptable, this much is understandable in the context of a perception by a community that the formal and constitutionally established criminal justice system is not functioning.

The courts and the executive seem to share the popular assumption that vigilante violence deserves harsh condemnation. This goes hand-in-hand with an uneasy acknowledgment that vigilantism is essentially an attempt to address a long standing and ongoing problem – namely the state’s woefully inadequate response to societal order and security demands.

This ambivalence is reflected in the words South Africans use to talk about vigilantism. These include oxymoronic terms such as “popular justice”, “kangaroo court”, “vengeance attacks” and “mob justice”.

And the ambivalence is reinforced by the fact that there are very low levels of trust between citizens of the country and the police. This was borne out again with the release of the country’s latest victims of crime survey by Statistics South Africa. It showed that, on the whole, South Africans are reluctant to report crime because they think the police can’t, or won’t, do anything about it.

Vigilantes as law-enforcers

During the course of my research I found that vigilantes saw the law as a stumbling block to achieving justice. I also found that vigilantes often appeared to have considerable community support.

This is because they employ a variety of techniques to legitimise their actions – to themselves and others. For example they depict their distinctive brand of violence as a legitimate means of enforcing group norms. And that the enforcement of these norms is being carried out by upstanding, honourable and respectable members of the community.

They also demonise their victims, claiming that their violent actions are necessary to safeguard the community from “undesirable” and “subhuman” elements.

It’s also noteworthy that vigilante “justice” is often carried out in a way that crudely parallels the formal justice system. This allows vigilantes to represent their exercise of power as not only comparable with, but superior to, conventional law enforcement.

So, how can the state counter the strategies of vigilantes and re-establish its own legitimacy. What is the most effective way to respond to vigilantism to harness (or neutralise) its power?

Tackling vigilantism

To establish its legitimacy the state must demonstrate its capacity to reduce citizen’s feelings of insecurity and fear. This requires dealing sufficiently harshly with crime (including vigilantism) while also delegitimating the option of violent “problem-solving”. But this can only happen if the state acts in ways that shows respect for human rights.

The state can go one of two ways. It can go the exclusionary route, punishing those who take the law into their own hands harshly. Or it can opt for more inclusionary alternatives. These could include using restorative justice or co-opting vigilantes’ crime-fighting power.

My research shows that various community driven restorative justice initiatives have been successful in the past. One example was the Community Peace Programme through which community members were able to take peaceful ownership of their conflicts. The programme was started in 1997 but was discontinued in 2009 due to lack of state funding.

Police-vigilante partnerships have been rather less successful due to vigilantes’ propensity for violence. But there have been examples of former vigilante groups being incorporated via neighbourhood watch and community policing initiatives.

These examples show that, with the proper guidelines, addressing vigilantism need not be at the expense of basic values such as non-violence and respect for the human dignity of everyone involved.

I suggest that for the state to succeed at relegitimating itself in the eyes of the public, it needs to focus on solutions that are forward-looking. These should involve reintegration rather than simply condemnation. And they should uphold and advance constitutional values.

The practice of justice by the state in marginalised communities needs to be based on shared societal and communal values. These include the need for practical reparation (for example, police could return stolen goods to crime victims rather than retaining them as exhibits), community participation, ubuntu (human kindness) and policing that focuses on fair treatment and accountability. Doing this would greatly increase the likelihood of citizen buy-in.

Vigilantes may indeed be willing to abandon violence as a means of problem-solving and to work with the formal criminal justice system if it’s seen to be addressing issues of crime and disorder in a community responsive, inclusive, respectful and restorative manner.

Mary Nel, Mary Nel is a senior lecturer in Public Law, Stellenbosch University

This article was originally published on The Conversation. Read the original article.