Abstract In 2014, the Western Cape Department of Community Safety in South Africa launched the first pilot of the Smart Policing Project, which sought to reduce incidents of violence between private citizens and law enforcement officials by attaching body-worn cameras (BWCs) to a small group of traffic officers throughout the province. In light of rising allegations of police brutality and deep-seated tensions between citizens and law enforcement officials, the Smart Policing Project received widespread support across the country. However, despite the appearance of a strengthening in police oversight, the ability of BWCs to hold police officers to account for acts of misconduct or criminality depends largely upon the existence of institutional policies governing usage, and a robust legislative framework for accessing information held by the state. Accordingly, the purpose of this article is to unpack South Africa’s tenuous commitment to transparency by juxtaposing the reactions of law enforcement officials to wearing BWCs owned and operated by the state, versus being recorded by cell phones owned and operated by private citizens. The article begins by examining the context of police oversight in South Africa in an effort to demonstrate the rationale for introducing BWCs 20 years post-Apartheid. It then moves on to highlight inconsistencies in South Africa’s right of access to information regime by exploring differences in the levels of protection afforded to records held by public bodies versus those held by private bodies under the country’s access to information legislation. The article concludes by discussing the impact of those protections on the utility of BWCs in South Africa, and making recommendations on how to increase the effectiveness of BWCs in strengthening openness and transparency in policing. Introduction The introduction of body-worn cameras (BWCs) has been widely recognized as a positive development in police oversight, with information and communication technologies possessing the unique ability to shift power imbalances between the state and its citizenry, and to transform the manner in which governments, public institutions, and private citizens interact (Bruce & Tait, 2015: 1). Unlike witness statements or written police reports, which may be subject to the influence of institutional agendas and political motives, audio and video recordings have the power, at least in theory, to present unaltered accounts of interactions between people and law enforcement officials. However, the context in which such a recording takes place, and the person and/or institution that exercises legal custody and control over the footage, often determines whether BWCs become instruments of transparency, or tools used to legitimize the actions of the state (Meyer, 2015a). In 2014, the Western Cape Department of Community Safety (DOCS), an independent police oversight body, partnered with the African Policing Civilian Oversight Forum (APCOF) and the Igarapé Institute in Brazil to pilot the Smart Policing Project to monitor performance of the police throughout the province.1 The purpose of the Smart Policing Project was to attach BWCs to a small group of traffic officers employed by the Department of Traffic and Public Works (DOTPW) in Cape Town, and observe whether the devices were effective in reducing incidents of violence between officers and motorists and in decreasing the number of complaints filed against department officials (Brown et al., 2015: 2–3). While findings from the pilot’s Assessment Report in 2015 suggested that BWCs could be used to ‘manage the behavior of police officials’ (Brown et al., 2015: 15), the report’s main conclusion concerned officer safety, and argued that further roll-out of BWCs was necessary in order to protect officials against allegations of ‘abuse, accusations, allegations, and bribery’ (Brown et al., 2015: 20). Accordingly, the purpose of this article is to unpack South Africa’s tenuous commitment to transparency by juxtaposing the reactions of law enforcement officials to being recorded by BWCs owned and operated by the state, versus by cell phones owned and operated by private citizens. This article begins by examining the context of police oversight in South Africa in an effort to demonstrate the rationale for introducing BWCs into the policing environment 20 years post-Apartheid. It then moves on to highlight inconsistencies in South Africa’s right of access to information regime by exploring differences in the levels of protection afforded to records held by public bodies versus those held by private bodies under the country’s access to information legislation. The article concludes by discussing the impact of those protections on the utility of BWCs in South Africa, and recommends establishing a set of policies governing usage to ensure BWCs achieve their purpose of strengthening openness and transparency. Police oversight in South Africa Police oversight in South Africa needs to be understood within the context of its historical and political transition to democracy, a process that underwent extensive reforms in order to bring legitimacy to the new democratic state. A central priority of post-Apartheid South Africa was the establishment of a democratic police service, which not only involved transforming personnel to be more reflective of the nation’s demographics, but also required efforts to demilitarize and civilianize the operational approach of the police service (Rauch et al., 2006: 21–30). An extensive network of oversight structures and mechanisms was created, including the Independent Police Investigative Directorate (IPID), the Civilian Secretariat of Police (CSP) and provincial DOCS, to not only ensure that police officers complied with their obligations under the law, but remained fundamentally committed to serving the needs of the people, rather than the interests of the state (Rauch et al., 2006: 31–36). Despite South Africa’s best attempts to transform the police since the transition in 1996, the South African Police Service (SAPS) remains one of the most violent and distrusted organs of state. In 2014, a FutureFact Survey found that 33% of adults were ‘scared of the police’ (ISS, 2015: 6), which is not an unwarranted sentiment given that 3,509 complaints of assault, 145 allegations of torture, 134 cases of rape, and 366 deaths were filed with IPID in 2015–16 alone (IPID, 2016: 51–52). In addition to fearing law enforcement officials, survey results from the past 5 years have found high levels of mistrust in SAPS amongst South Africans. For example, in 2011, the Human Sciences Research Council's South African Social Attitude Survey (SASAS), found that two-thirds (67%) of adults believed corruption and bribery were endemic within the police, and identified SAPS as the most corrupt institution of government (HSRC, 2011). Similarly, in 2014, the same FutureFact Survey found that three-quarters (75%) of adults believed many police officers were criminals themselves (ISS, 2015: 6). These sentiments are consistent with the results of Statistics South Africa’s most recent 2015/2016 Victims of Crime Survey, which also found that most households do not report crime because most believe that the police ‘could not or would not do anything’ (Statistics SA, 2017: 2). In this regard, post-Apartheid efforts to transform the police and hold law enforcement officials to account have been, to a certain extent, largely ineffective. The case for smart policing Increasing demands to strengthen police oversight, coupled with political pressure to adhere to the 2012 National Development Plan’s call to demilitarize and professionalize the police, compelled the CSP to develop a new policy directive for policing in 2016 (CSP, 2016: 5–7). The new policy, formally referred to as the 2016 White Paper on Policing, creates a framework for establishing ‘an accountable, professional, competent, and highly skilled police service’ (ibid) as part of the state’s efforts to address citizen concerns over high levels of criminal misconduct, corruption, and brutality by law enforcement officials. In addition, the White Paper emphasizes the need for regular and independent monitoring of police conduct and performance in order to strengthen transparency and increase levels of accountability within law enforcement (ibid at 35–36). In addition to promoting stronger transparency within the police, oversight bodies have simultaneously advocated for increased awareness of the inherent danger of policing in South Africa, where rates of violent crime are amongst the highest in the world for a country not at war (The Guardian, 2015). Growing appreciation for the vulnerability of South African law enforcement officials came to the fore in July 2015, when seven police officers were killed in a period of less than 10 days, sending shockwaves throughout the country (EWN, n.d.). Traffic officials in South Africa were reported to have faced similar threats, with officers being ambushed and robbed of their firearms on open roads (News 24, 2015), and others being shot at in their vehicles (EWN, 2016). In response, Groundup, a public interest news agency in Cape Town, conducted statistical research comparing South Africa and the USA and found that South African police officers are ‘twice as deadly as American cops’ but also ‘six times more likely to die on the job’ (Mail & Guardian, 2015). In light of the above, the case for Smart Policing is a strong one, with the country’s current policy framework serving as a key entry point for the introduction of BWCs in the police oversight environment. Mainstreaming use of BWCs has the potential to be widely successful not only because ICTs can be used to enhance the effectiveness of performance management systems, but also because they can be used to protect officers from incidents of violence and allegations of misconduct. However, like many other jurisdictions have found (Washington Post, 2016), the ability of BWCs to hold police officers accountable for acts of misconduct or criminality depends upon the existence of institutional policies governing usage, and a robust legislative framework for accessing information held by the state. Accordingly, the next section of this article challenges the veracity of South Africa’s commitment to transparency by juxtaposing the reaction of a Ekurhuleni Metro traffic officer to being recorded by a motorist against the institutional response of DOTPW officials to wearing BWCs owned and operated by the state in order to reveal inconsistencies in the country’s pledge to establish open governance. A tenuous commitment to transparency Transparency, like many other liberal democratic values, less often practiced than it is preached. An open government is considered to be more legitimate if it provides people with mechanisms to access information about the state, to ensure government is acting in the interests of its people, rather than the interests of a particular person or party (Hood, 2006: 3–23). However, more often than not, states are selectively transparent—choosing only to disclose information that will improve, rather than harm, the legitimacy of government. Hence, I argue here that South Africa's commitment to transparency is no different than other countries insofar as it rests upon the state's ability to control which information is disclosed to the public despite its constitutional promise to establish an open and transparent system of governance, and providing for a right of access to information held by the state. Take, for example, the case involving Mr Diederick Stopworth. On the morning of 15 March 2017, Mr Stopworth and his girlfriend were pulled over by Ekurhuleni Metro Police outside of Johannesburg after driving around a truck that had been blocking an intersection.2 According to Mr Stopworth, he was the only motorist to be pulled over by police even though many other people had done the same. After the officer took his licence without providing a reason, Mr Stopworth stepped out of the vehicle, approached the officer, and began recording their interaction with his cell phone. In the video, Mr Stopworth not only stated that the officer had taken his licence without providing a reason, but also declared that he was not wearing any identification. The officer, after realizing that Mr Stopworth was recording him, grabbed the phone out of Mr Stopworth’s hand, shattered it on the ground, and then drove away with the licence. According to news reports, Mr Stopworth laid a charge of theft, damage to property, and common assault with the police and provided the video footage as evidence; however, to date, no action has been taken against the officer (News 24, 2017). The reaction of the Ekurhuleni Metro Police traffic officer is not an uncommon one. Every day, videos depicting police misconduct and brutality are uploaded on the Internet; more often than not, the officers in these videos do not know they are being recorded. Yet, in the instances where they do know, their reactions are more or less the same. A hostile command by the officer to ‘Stop recording!’ and ‘Turn off your phone!’ is often followed by a forceful seizure and shattering of the individual’s cell phone to the ground (Meyer, 2015b). Consequently, I argue here that if the South African government was genuinely committed to open governance, and if law enforcement officials were honestly concerned about their safety and false allegations of misconduct, (as articulated in the 2015 Assessment Report and in news articles documenting violence against officers), the destruction of cell recordings of police–citizen interactions would not only be seen as counterproductive, but also treated as a threat to the legitimacy of the state. This is not the case, however, because South Africa's commitment to transparency is rooted in its ability to control which information is disclosed to the public, rather than its willingness to be wholly visible to the citizenry by sharing information about the state that is both accurate and comprehensive. I support this contention by highlighting the fact that, unlike BWC recordings, which can be prevented from disclosure under South Africa's access to information legislation, cell phone recordings are not subject to the same levels of protection. Accordingly, the polarizing reactions by law enforcement officials to be recorded by BWCs versus by personal cell phones is understandable given that one type of recording can be protected from disclosure while the other type cannot. Accordingly, the next section of this article aims to further support my contention that South Africa’s commitment to transparency is tenuous by exploring inconsistencies in its access to information legislation, the Promotion of Access to Information Act (PAIA). The PAIA Although the right of access to information was treated as a fundamental component of an open and accountable state at the dawn of South Africa’s democracy, the country’s access to information regime today is quite different than the one envisioned in 1994. Not only had the right of access to information originally been conceived as a mechanism of good governance, it was also seen as a vehicle for the realization and protection of other human rights, and a means of unlocking the potential and enhancing the capabilities of all South Africans (Calland, 2009: 1-16). Four years after the adoption of South Africa’s final Constitution in 1996, the PAIA was enacted to give effect to the constitutional right of access to information under Section 32, which provides that: Everyone has the right of access to – (a) Any information held by the state; and (b) Any information that is held by another person and that is required for the exercise and protection of any rights (Constitution, 1996: sec 32(1)). In this regard, PAIA’s primary objective was to create a mechanism for requesting access to records, and more generally, to promote transparency, accountability, and effective governance. In addition, the promulgation of PAIA also aimed to protect certain types of information, including the mandatory protection of law enforcement, from disclosure by establishing various grounds upon which access to records held by both private and public bodies can be refused (PAIA, 2000: secs 9, 31). Therefore, even though PAIA has been internationally recognized as a progressive piece of legislation, compliance levels are notoriously low, with many departments deliberately ignoring requests for records that should already be in the public domain (SAHRC, 2015: 4, 29). In fact, some access to information experts argue that, despite its best intentions, the ultimate effect of PAIA has been to centralize power within the state, not only by establishing a bureaucratic procedure for requesting access to information (Darch, 2010), but also by creating multiple grounds of refusal for records held by the state. Questions concerning the accessibility of Smart Policing Project recordings under PAIA were raised in the 2015 Assessment Report, specifically in relation to whether audio and video recordings would constitute as publicly owned data, and if so, whether the public would be able to access the recordings. In response, legal research was conducted to respond to these queries, which found that recordings generated during the Smart Policing Project would constitute as records of public bodies under Section 1 of PAIA and, therefore, would be subject to the grounds of refusal provided under Chapter 4. The research further found that several grounds of refusal could be used to protect BWC recordings from disclosure, including (1) the mandatory protection of safety of individuals, (2) the mandatory protection of law enforcement, (3) the mandatory protection of research information of public bodies, as well as (4) the operations of public bodies (Stone, 2016: 13). Although all denials for records held by public bodies are subject to the public interest override clause under Section 46, the final decision rests with the Information Officer (an employee of the body in control of the record), who is empowered with the discretionary authority to grant or deny access (PAIA, 2000: sec 46). Given the extensive grounds provided under Chapter 4 of PAIA to deny access to BWC recordings, I argue here that South Africa’s access to information legislation can be used to prevent the disclosure of any information that harms, or has the potential to harm, the reputation of the state. In this regard, PAIA not only supports, but also facilitates, South Africa's tenuous commitment to transparency insofar as it provides various mechanisms through which information about the state can be censored, including the mandatory protection of law enforcement officials as well as research held by public bodies. Accordingly, in the absence of a robust legal framework for accessing information held by the state and strong institutional policies governing usage, the ability of BWCs to transform police oversight in South Africa is significantly limited. Conclusion Advancements in technology present an exciting opportunity for police oversight; however, the ability of BWCs to hold police officers to account for acts of misconduct or criminality depends upon a robust legal framework for accessing information held by the state and the establishment of strong institutional policies governing usage and public disclosure. Despite the challenges that exist within South Africa's current legal framework, the objectives of BWCs can nevertheless be achieved if comprehensive operating procedures and mechanisms for disclosure are adopted. Footnotes 1Although policing is a national competence in terms of Part A of Schedules 4 and 5 of the Constitution of the Republic of South Africa (No. 108 of 1996), provincial government exercises concurrent legislative control over public transport, public works, and road traffic regulation. Accordingly, the Western Cape Department of Transport and Public Works (DOTPW) employs traffic officials to enforce traffic laws and monitor road safety throughout the province. Traffic officers are armed, and empowered under Section 31 of the National Road Traffic Act (No. 93 of 1996), to ‘give such directions as may be necessary for the safe and efficient regulation of the traffic; which includes impounding any motor vehicle it may deem unfit for operation’. Given that traffic officials have quasi-police powers in the execution of their duties, it was a suitable decision to pilot the Smart Policing Project in the provincial traffic departments. 2While it is important to acknowledge that Ekurhuleni Metro Police and the Western Cape provincial traffic department are two separate entities, officials in both departments have the authority to act on behalf of the state and exercise police powers in the execution of their duties. References Brown L., Bhekithemba S., Dissel A. ( 2015). ‘ Smart Policing Assessment Report: Western Cape’ , Western Cape Department of Community Safety, Provincial Police Secretariat for Safety and Security: Policy and Research. Bruce D., Tait S. ( 2015). ‘A “Third Umpire” for Policing in South Africa: Applying Body Cameras in the Western Cape” . Strategic Paper 14. Brazil: Igarapé Institute. Calland R. ( 2009). ‘Iluminating the Politics and the Practice of Access to Information in South Africa’. Chapter 1 in Paper Wars: Access to Information in South Africa . Johannesburg: Wits University Press. Civilian Secretariat of Police. ( 2016). White Paper on Policing. http://www.policesecretariat.gov.za/downloads/bils/2016_White_Paper_on_Policing.pdf (accessed 19 September 2017). Constitution of the Republic of South Africa, [No 108 of 1996]. Darch C., Underwood P. G. ( 2010). Freedom of Information and the Developing World: The Citizen, the State and Models of Openness . Oxford: Chandos Publishing. Promotion of Access to Information Act, [No 1 of 2000]. Eyewitness News Online. ( 2016). Traffic officer assaulted outside Nigel school. http://ewn.co.za/2016/08/17/EMPD‐officers‐assaulted‐outside‐Nigel‐school (accessed 20 February 2017). Eyewitness News Online. (undated). ‘In the line of fire: SA cop attacks’. http://ewn.co.za/Features/SA‐cops‐under‐attack‐police‐officers‐killed (accessed on 13 July 2016). Hood C. ( 2006). Transparency in Historical Perspective. In Hood C., Healt D. (eds), Transparency: the Key to Better Governance ? Oxford: Oxford University Press, pp. 3‐ 23. Google Scholar CrossRef Search ADS Human Sciences Research Council. ( 2011). Business unusual: Perceptions of Corruption in South Africa. http://www.hsrc.ac.za/en/review/june‐2012/business‐as‐usual‐perceptions‐of‐corruption‐in‐south‐africa (accessed 22 June 2017). Institute for Security Studies. ( 2015). ISS Submission: White Paper on the Police, at 6. See also ‘FutureFact Finds: three quarters of South Africans believe that a lot of police are criminals themselves’. http://www.futurefact.co.za/futurefact‐finds/futurefact‐finds‐three‐quarters‐south‐africans‐believe‐lot‐police‐are‐criminals (accessed 19 September 2017). Independent Police Investigative Directorate (IPID) Republic of South Africa. (2016). Annual Report 2015/2016: Independent Police Investigative Directorate, Pretoria: IPID. http://www.icd.gov.za/sites/default/files/documents/IPID%20AR%202015%2016%20WEB.pdf (accessed 19 September 2017). Mail & Guardian, ( 2015). South African police are twice as deadly as American cops, but they’re also six times more likely to die on duty. http://mg.co.za/article/2015‐06‐10‐pdf (accessed 13 July 2016). Meyer R. ( 2015a). Many police departments have dismal body‐camera laws. The Atlantic. https://www.theatlantic.com/technology/archive/2015/11/many‐of‐the‐nations‐largest‐police‐departments‐have‐dismal‐body‐camera‐laws/414945/(accessed 19 September 2017). Meyer R. ( 2015b). What to say when the police tel you to stop filming them. The Atlantic. https://www.theatlantic.com/technology/archive/2015/04/what‐to‐say‐when‐the‐police‐tel‐you‐to‐stop‐filming‐them/391610/(accessed 26 July 2017). News 24. ( 2015). Traffic officer ambushed on N7 for service pistol. http://www.news24.com/SouthAfrica/News/Traffic‐officer‐ambushed‐on‐N7‐for‐service‐pistol‐20150526 (accessed 20 February 2017). News 24. ( 2017). WATCH: EMPD Officer Slaps Cellphone Out of Motorists Hand. http://m.news24.com/new24/SouthAfrica/News/watch‐empd‐officer‐slaps‐cellphone‐out‐of‐motorists‐hand‐20170315 (accessed 18 July 2017). Rauch J., Van De Spuy E. ( 2006). Recent Experiments in Police Reform in Post‐Conflict Africa: A Review . Pretoria: Safety and Security Programme of the Institute for Democracy in South Africa, pp. 21‐ 30. South African Human Rights Commission. ( 2015). The Promotion of Access to Information Act Annual Report 2014/2015. Johannesburg: South Africa. https://www.sahrc.org.za/home/21/files/Final%20annual‐report%20.pdf (accessed 10 July 2017). Statistics South Africa. ( 2017). Victims of Crime Survey 2015/2016. http://www.statssa.gov.za/publications/P0341/P03412015.pdf (accessed 20 February 2017). Stone K. ( 2016). Operationalising Smart Policing: Navigating Challenges and Opportunities within South Africa’s Legislative Framework. Unpublished legal brief. The Guardian. ( 2015). South Africa ‘a country at war’ as murder rate soars to nearly 49 a day. https://www.theguardian.com/world/2015/sep/29/south‐africa‐a‐country‐at‐war‐as‐rate‐soars‐to‐nearly‐49‐a‐day (accessed 13 July 2017). The Washington Post. ( 2016). A new report shows the limits of police body cameras. [Referencing a study completed by the Brennan Center at New York University.] https://www.washingtonpost.com/news/the‐watch/wp/2016/02/05/a‐new‐report‐shows‐the‐limits‐of‐police‐body‐cameras/?utm_term=.90e9c74535de (accessed 25 February 2016). © The Author 2017. Published by Oxford University Press. All rights reserved. For permissions please e-mail: email@example.com
Policing: A Journal of Policy and Practice – Oxford University Press
Published: Mar 1, 2018
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