Is South Africa Reverting to a Repressive State?

Since the Marikana  massacre in 2012, several journalists, academics and media commentators have argued that South Africa is reverting to a repressive state. They have interpreted violence at the hands of the South African Police Service (SAPS) generally, and Marikana specifically, as signs that the post-apartheid social order can no longer be held in check through consent alone. They argue that the ruling African National Congress (ANC) and other powerful actors have concluded that naked violence is now needed to stabilise increasingly fractious social relations.1 Some have even used the term “police state” to describe post-Marikana South Africa.2  As a police state is one where the police act as a political force to contain social dissent using arbitrary force, it is an important manifestation of a more repressive state.

How likely is South Africa to descend into  a state of full-blown repression? How likely is it that there will be more Marikanas? Need- less to say, being able to answer these questions will have a major impact on the future trajectory of the  country’s politics. There can  be little  argument with  the  statement that South Africa’s democratic government under its  fourth president, Jacob  Zuma, has strengthened the coercive capacities of the state, consisting of the police, the intelligence and  the  military and  located in the Justice, Crime Prevention and Security Cluster.  In fact, it would appear that this  Cluster  has  become the  praetorian guards of an increasingly embattled presidency.3 The well-reported growth in the levels of police violence against ordinary civilians and  protestors and  police militarisation are the most visible manifestation of this shift, as is the normalisation of the military in domes- tic  policing functions, which suggests a growing militarisation of society.4 However, the  huge  public controversies over  police violence and  police militarisation, mask the  fact  that there are  fundamental shifts in the coercive capacities of the state, away from  overt  repression and  towards less visible, more pre-emptive forms of repression. What are the indicators of this shift and why is it significant?

Members of the Association of Mineworkers and Construction Union (AMCU) dance and sing around Wonderkop Hill during the 4th anniversary of the Marikana shooting in Rustenburg, South Africa, 16 August 2016. Photo: ANP/EPA/Kim Ludbrook

From Human Intelligence to Signals Intelligence

The first indicator is that intelligence work has become increasingly important to stabilising social relations. Surveillance provides the state with a politically low-cost form  of social  control, as abuses are  very difficult to detect. Political surveillance is part of an arsenal of tools available to the state to pro- file problem subjects, and to use this knowledge  to stymie protests they  may  consider to be problematic. The  state can  use  such surveillance, or the  threat of surveillance, to create fear that organised violence will be used against perceived opponents.

At the  same time,   the  fear  of  being watched may  force  people to  self-police their own behaviour.

In South Africa, the state has expanded its surveillance capacities over the past decade.  In 2003, the  Thabo Mbeki  Presidency issued a directive requiring an  expansion of the-then National Intelligence Agency’s (NIA) mandate to include political and  economic intelligence. In the  case  of political intelligence, the NIA was to focus on “…the strengths and  the  weaknesses of political formations, their constitutions and  plans, political figures  and  their roles  in governance, etc”.5 These  changes led to the  intelligence services ballooning in size.  A year later, signs emerged that intelligence operatives were  becoming embroiled in internal factional battles in the ANC: a problem that was  proved to  exist  by  a  Commission of Enquiry, which partly blamed the  culture of secrecy in the  intelligence services as a source of the problem.6

Shortly  after  Zuma  took  office,  the domestic and  foreign intelligence services were  centralised into  the  State  Security Agency  (SSA). The  political intelligence- gathering mandate has also allowed the government to normalise spying on  domestic political groupings on the  most tenuous of grounds.7

A document leaked to the media, and  apparently summarising the  SSA’s National Intelligence Priorities for  2014 (which are classified, although they  should not  be)  – and  which are  developed every year  to guide  the  use  of the  state’s surveillance capacities – states that the SSA should investigate and  engage in counter-planning for a “so-called “Arab Spring”  uprising prior to [2014 national] elections’.8 The SSA claims it will resort to the “maximum use of covert human and  technical means” to  counter these threats.9 The document’s citing  of the Arab spring – a legitimate struggle against authoritarianism – is significant, as it implies that this protest wave in the Arab region was essentially illegitimate. In the South African context, the  risk of such a priority straying from the covert surveillance of illegal political activity  into  legitimate activities should be self-evident: a risk that is strengthened by the SSA’s overly broad mandate, excessive secrecy, recent history of abuse of this man- date and  inadequate reforms to  increase public accountability.

South African Police fire stand guard during a protest by students supporting the “Fees Must Fall movement” outside the South African Parliament where South African Minster of Finance delivers his Mid-term Budget address in Cape Town, on October 26, 2016. Photo: ANP/AFP / Schalk van Zuydam

The  risk associated with  human intelligence is that the  identities of intelligence operatives deployed to  spy  on  organisations can  always  be  uncovered, leading to  politically-costly scandals about intelligence abuses. As a result, the  intelligence community has  taken advantage of  the digital “revolution” to shift away from using human intelligence (intelligence gathered through physical means) to  signals intelligence (intelligence gathered from  communications surveillance). It is difficult to tell whether South Africa has embraced this global  shift,  but  it would be  unsurprising if it has.  While  the  government’s targeted interception  capacities are  regulated in terms of the  Regulation of Interception of Communications and Provision of Communications related Information Act (Rica), mass  surveillance remains  completely unregulated in terms of the law, which pre- disposes these capacities to abuse. In fact, not  only  does  South Africa produce mass surveillance technology, but  the  state has funded its  development10  and  allowed it to be exported, including to authoritarian regimes such as Libya, where the equipment was  used to  spy  on  Muammar Gaddafi’s political opponents.11

From Militarised Policing to Intelligence-led Policing

The second indicator, closely  related to the first, is the shift from militarised policing to intelligence-led policing. As its name suggests,  this  policing model uses  risk assessment as  its  main tool  to  direct policing decisions about where and  how  to  intervene. The model is more recent than para- military policing, as it was conceptualised in Britain and  the United States (US) in the 1990’s, but  it really  gained currency after the  September 11 attacks on New York and Washington. Intelligence-led policing relies heavily  on  covert techniques for  crime- detection, including paying informants, spying  on  individuals and  organisations, the use of Closed Circuit Television (CCTV ) cameras, communications surveillance and the interception of voice and  data traffic.12

Intelligence-led policing does  not  necessarily make human rights violations go away;  it merely makes them less  visible. This form  of policing encourages problematic profiling of individuals or social groups that may resort to crime, which can  lead  to stereotyping of particular social  groups as being predisposed to crime. Activists  who are  considered to  be  politically threatening to existing ruling groups may be placed under surveillance to gain  more information  about their activities and  to intimidate them, which risks  chilling political activity. The US police used intelligence-driven policing to infiltrate organisations linked to the  anti-globalisation movement, to identify and  isolate “troublemakers”.13  But like overt forms of violence, generalised surveillance techniques also erode public trust in the  state: in fact, the  latter can  do so more readily than the former as surveillance proceeds from  the  premise that states do not trust their citizens from the outset.

Intelligence-led policing relies heavily on covert techniques for crime- detection, including paying informants, spying on individuals and organisations, the use of Closed Circuit Television (CCTV ) cameras Photo: Centralhighlandssecurity

In South Africa, the  Crime  Intelligence Division of SAPS holds the  key to this  new policing strategy, so it is unsurprising that this Division has become so powerful (and controversial) in recent years,  as this policing model makes it the  lynchpin of policing strategies.14 Heightened power without heightened accountability is a recipe for disaster. A case currently being heard in the Pretoria Commercial Crimes Court points to members in the division having used the surveillance capacities of the  state to spy on journalists. Yet, in spite of its increasing importance to policing work, there are signs of Crime  Intelligence having lost its effectiveness, leading to a resurgence of organised crime.15

SAPS has  embraced intelligence-led policing for several reasons. Police violence is  eroding trust between the  police and communities, making it more difficult to revert back  to community policing.16 Yet at the same time, SAPS cannot risk many more high  profile shoot-outs with  protestors, as the  long-term political costs  will simply  be too  great. So, it stands to  reason that the SAPS would search for  a  policing model that still allowed them to contain dissent using a less politically-risky approach, and intelligence-led policing provides just such a model.

From Post-hoc to Preemptive Repression of Protests

The third indicator is an  increasing use  of pre-emptive methods of containing protests through manipulations of the Regulation of Gatherings Act (RGA), to stop more protests from spilling  out onto the streets in the first place. In a research study I led on the  right to protest in eleven municipalities17  – and which involved the  physical collection and logging of municipal data about gatherings and  protests over a five year period (2008-13) – I found that none of the  municipalities studied received a clean bill of health. A research team collected all notifications for protests and  gatherings sent  to municipalities in terms of the RGA: they yielded incredibly rich data about how many protests were taking  place  relative to gatherings, the  rea- sons  for the protests, the protest actors and municipal responses to the protests.

Police officers arrest a Congolese protester after a protest against the Democratic Republic of the Congo President, Joseph Kabila outside the DRC’s Embassy on December 20, 2016 in Pretoria. Photo: ANP / AFP John Wessels

The municipal and  the  police statistics suggest that the  majority of protests take place  peacefully and  uneventfully, which is not  the  dominant image of protests either in  the  media or  the  public imagination. In fact,  from  SAPS’s Incident Registration Information System (IRIS) database for the areas with the most unrest-related incidents between 2009 and  2012 18, it became clear that despite being labelled unrest-related, most of the protests did not escalate beyond barricade-building and  tyre-burning, and in fact  were  recorded as being fairly incident-free.19  The  protests recorded in  the municipal records constitute a humdrum of protests, taking  place  day  in,  day  out throughout the country with little incident. Between the  media and  police hype  about “violent service  delivery protests’, it is this wider  picture of peaceful protests that is so often missed, and  unsurprisingly so. The security cluster can  use images of marauding mobs, apparently predisposed to violence, to create moral panics in the  public about protests, to turn the  public against protestors (even  those whose demands are legitimate), and  to justify heightened security measures against them.

Yet in spite of protests remaining largely peaceful, all the  municipalities surveyed instituted unreasonable restrictions on the right  to  protest, and  these have  curtailed this right to varying  degrees. While the misapplication of the RGA has been a problem at least  since  the  early  2000’s20, a particularly significant shift became apparent from 2012 onwards. In the wake of the local government elections, the  Department of Co- operative Governance sent  out a circular to local  governments that outlined proactive measures that municipalities need to take to deal with protests. These measures included “… [working] with the office of the speaker [and]  public participation units to ensure ongoing engagement between councillors and  communities and  residents’.21  Several municipalities used this memo as a pretext to change how they administered the RGA.

This shift increased the already-onerous bureaucratic obstacles municipalities put on protests, many of which already shared an assumption that the notification process in terms of the  RGA was actually a permission-seeking exercise, and that they had the right  to grant or deny  “permission” to convenors to engage in a gathering or protest. This municipal misapprehension of the pro- cess set the tone for how notifications were dealt with,  both by the  municipalities and by the police. Practices that limited the right unduly included a requirement on the part of convenors to seek a letter from the institution  or person they were marching against, guaranteeing that they  would be willing to accept the memorandum. The rationale for seeking such an assurance appears to be to prevent frustration on the part of protestors, which could boil over  into  violence. How- ever, it has also become a censorship device, where those who are being marched against can squash the protest simply by refusing to accept the memorandum.

A student wears a T-Shirt with the defaced image of president Jacob Zuma over his head during a student protest over fees to parliament on the occasion of South African Finance Minister Pravin Gordhan presenting his Medium Term Budget Policy speech to Parliament in Cape Town, South Africa, 26 October 2016. Police used stun grenades and rubber bullets to disperse student protestors demonstrating at the gates of parliament as the Finance Minister delivered his medium term budget policy speech. Photo: ANP/ EPA/NIC BOTHMA

The City of Johannesburg requires protest  convenors to seek  permission from  a ward  councillor to  protest, and  after  the 2012 Co-operative Governance memo, they and  the Mbombela municipality, instituted a filtering system to reduce the  number of service  delivery protests, where convenors need to show  that a meeting took place between the  mayor’s office,  the  community  and  the  ward  councillor involved in that community, or at the very least  that an attempt was made to bring  all parties to the table to resolve the issues at hand.22 But this prescription is not  lawful,  as the  RGA does not  prescribe what  process people should follow  before they  take  to the  streets.

While the municipalities studied have gradually closed spaces for the right to protest, this closure is highly uneven and subject to considerable contestation. Spaces were much more closed where the political and economic elite were united in their intentions to stifle protests.

The number of “approved” protests increased in  Mbombela once the  filtering process was introduced, suggesting that the  potentially “troublesome” protests did  not  even enter into  the system. But the municipality did admit that the  condition had  led to an increase in the  number of “unrest-related” protests, taking place outside the framework of the  RGA, and  that the  police were  more likely to  be  heavy-handed against such a protest. These  were led mainly by individuals or organisations that were in dispute with the structures they were meant to negotiate with, suggesting that an increasingly restrictive approach towards protests on the part of the municipality was changing the character of the protests, forcing them to become what the  authorities would consider “unlawful” and driving up the potential for the protests to become disruptive.

While  the  municipalities studied have gradually closed spaces for the right to protest,  this  closure is highly  uneven and  subject  to  considerable contestation. Spaces were  much more closed where the  political and  economic elite were united in their intentions to  stifle  protests and  prevent criticism and  alternative forms of mobilisation: but  this  unity was  not  found uniformly  across the  municipalities. As Oliver has  argued, erratic government repression arises not because the government has chosen to be erratic, but because of inconsistencies among political actors.23 Furthermore, non-conventional actors are more likely to be repressed than conventional ones (such as unions or well-known political parties), as the  security apparatus consider the  former  to be less predictable than the  latter.24

University of Johannesburg students raise their hands while blocking a motorway during clashes with riot police on September 28, 2016 outside the University of Johannesburg Campus.
The issue of education fees ignited widespread frustration over a lack of opportunities for young South Africans, worsened by a weakening economy and high unemployment. Photo: ANP/AFP. Marco Longari

The  evidence supports a view of the  state put  forward by Gramsci that it is not monolithic,  but  is rather a site where ruling  class alliances take place  or even  shift.25 In times of significant political de-alignment, elements of the state can even work against one another. Erratic repression is likely to occur when divisions have  opened up within the political elite,  or between the  political elite and   the  bureaucratic layer:  in  such circumstances, spaces for alternative voices remained open, albeit constrained and subject to reversal.

Internationally, the  academic literature has  recognised the  fact  that ruling elites

have  expanded their repertories of social control beyond outright repression: as  a result, the  literature has  shifted away from focussing on  the concept of  repression, to that of pacification. According to Kein- scherf, pacification includes measures that “…produce undisruptive and unthreatening forms of collective action”.26  However, this is not to say that repression as it is commonly understood, and  pacification, are mutually exclusive: in fact, they  can  be complimentary strategies. For instance, the intelligence services can be used to separate out “good” protestors from  “bad”  protestors, and  the resulting protest  policing may  be  either facilitative or militarised depending on the type  of  risk  management strategies that the  police identify through the  intelligence gleaned.27  But the  fact  that the  elites  have found it necessary to shift from more visible to less visible  forms of social  containment at all, is not a sign of their strength; rather it is a sign of their weakness as they recognise the fact that they lack the capacity to repress openly. Why is this so? The next section will attempt to answer this question.

Organic Crisis: Growing Popular Capacity for Independent Action

It seems fair to say that South Africa is manifesting more elements of a classic Gramscian organic crisis.  For Gramsci, crises  become organic when they are thrown up directly by contradictions in how the capitalist system functi