Police did the right thing, the wrong way
Sharon Mathala | Friday August 12, 2016 16:26
Did the decision by police officers on Monday, to blow a whistle and sjambok protestors amount to ‘forceful dispersal’ or police brutality?
In terms of the right to gather, the law is clear. For three or more people to gather at an open space with the intent to conduct a public meeting, they need to seek permission from the police.
Also, according to the law, the police have a right to disperse such an illegal gathering.
Batswana are, however, asking whether sjambok beating was the only way of dealing with the group of youths in front of Parliament on Monday, particularly as they posed no threat and were seeking an audience with legislators, who were clearly eager to address them?
Where the protestors got it wrong
The protestors, known as the Unemployed Movement definitely made a statement.
Their intention and cries have been heard. But according to the law they went about it the wrong way.
Police spokesperson, Witness Bosija said this week that no request was received from the movement seeking permission to gather.
The movement’s spokesperson, Kesaobaka Maruping, rubbished the claim in a press conference this week.
“We applied for a permit on July 22 and to date we have not received any response from the police,” he said.
Bosija has a different take: “The problem is when people ask for permits they expect to be given a response there and then. Remember we still have to mobilise resources because a lot of personnel will have to then be channelled to that particular event”.
“We also have to check whether the route and or place requested for will be free at that time, because at times you find that others would have already asked for that particular place and that particular time.
“That is why sometimes we take a bit of time to respond to these requests. We would be verifying all of this.”
According to the Public Order Act Section 6, any public meeting or public procession within a controlled area, which takes place without a permit, or in which three or more persons take part, shall be unlawful and all persons taking part in such public meeting or public procession shall be guilty of an offence and liable to a fine not exceeding P100 or to imprisonment for a term not exceeding six months or to both.
Bosija said had the protestors been granted a permit to assemble, even this permit would not have been absolute. The police would still have the power to revoke the permit even if it had been initially granted.
“If the police have a reasonable belief that there is a likelihood of conflict, then the police may revoke the permit and ask that the group disperse,” he explained.
“Ask the group to disperse,” is where the debate is for many. The law appears to leave room for ‘abuse’ by police officers in dispersing rioters.
It states that when dispersing rioters, police should use reasonable force and do all things necessary to disperse the group if they continue to assemble even after being told to disperse.
Section 78 of the Penal Code states: “Upon expiration of a reasonable time after such proclamation is made or after the making of such proclamation has been prevented by force, 12 or more persons continue to riotously assemble together, any person authorised to make proclamation or any police officer or any other person acting in aid of such person or police officer, may do all things necessary for dispersing the person so continuing to assemble or for apprehending them or any of them and if any person makes resistance, may use all such force as is reasonably necessary for overcoming such resistance and shall not be liable to any criminal or civil proceedings or having by the use of such force caused harm or death to any person.”
The room for abuse appeared evident on Monday as some officers were heard saying as “Are ba betse batho ba, rona re bata go chaisa reye malapeng,” while numerous witnesses said the protestors did not behave riotously and were attacked spontaneously.
Bosija is adamant that the use of sjamboks to disperse the ‘peaceful protestors’ was the only option police were left with.
“We gave them more than enough time. We negotiated with them from afternoon. One thing that should be made clear is that Parliament is a controlled area, but besides that, we pleaded with them to disperse and they did not.
We had to disperse them forcefully.”
Bosija refused to debate the issue of whether sjamboks were the appropriate dispersal technique, repeatedly saying: “We had to disperse them forcefully”.
However, a former magistrate told Mmegi that the elbow room police have in the law for reasonable force in the dispersal of protestors can be challenged in court.
The former magistrate requested anonymity, citing professional reasons, related to his current occupation.
“The term ‘reasonable force’ does not mean the police should just abuse citizens. They should have looked at the situation. Were the said protestors armed? Did they show any signs or even make the first move of violence against the police?
This helps the police make the right and/or appropriate decision as to how to disperse the riot.”
The former magistrate further explained that the term ‘reasonable force’ is also aligned to the circumstances of the situation. For instance if the police are in danger themselves, they then can use excessive force to arrest the culprits.
The debate over “dispersal by reasonable force” is likely to come up again soon, as the Unemployment Movement has vowed to stage yet another protest in their efforts to highlight youth unemployment.