Manejo de Riesgos

A common explanation among the Namibian police authorities whom I interviewed in 2009 was that abuses by police officers are exceptional, isolated cases stemming from individual failures of conduct.181 _{As put by Nampol commissioner A:}

Such kind of incidences are not institutionalised, no, these are isolated individual incidents…[They are] not commanded and can be dealt with. It’s just an individual. Some police officers also feel that ‘if I’m in uniform I’m above the law’, definitely no. Some of them did not have a chance also to get really exposed on how to police in a democracy.182

Yet available figures, news reports and personal accounts indicate that breaches of rules happen regularly.183 _{Clearly, the relatively high level of reported police}

violence cannot be explained away as aberrations or isolated cases. While they are

180

See Rejali (2007: 2-3) who writes of torture in modern democracies. He argues that ‘wherever citizens gather freely to review public power or name violent injustice, we are also more likely to see covert violence. In democracies, the police, the military, and the secret services are constrained by constitutions and monitored by judges and internal review boards, by a free press, and by human rights organizations’ and this creates a need to conceal violence. ‘The modern democratic torturer knows how to beat a suspect senseless without leaving a mark.’

181 _{Another explanation employs the idea of transition to argue that violence will gradually pass with}

time.

182

Interview 4 February 2009. See also Nampol Public Relations spokesperson Hofni Hamufungu as quoted in ‘NBC feedback: Namibian Police Special Field Force (SFF),’ New Era 6 November 2009. Hornberger (2009: 80) notes a tendency towards similar argumentation in South Africa.

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While regular, they certainly do not appear as prevalent or extreme as in some other postcolonial democracies, such as Kenya, Zimbabwe or Brazil.

not necessarily enactments of premeditated policy, they are nevertheless a structural phenomenon that ought to be explained as such. In this respect, Inspector General Ndeitunga’s circular, quoted above, is exceptional in the degree to which it approached admission of an institutionalized element to such cases. However, instead of provoking a deeper examination of the structural sources of violent practices in police/public encounters, the proposed remedy has repeatedly been more and better education and awareness-raising on human rights issues.

Ground level officials talk differently. They seldom portray violence as a deviation but rather as a normal part of police work, admitting that violence takes place and explaining it by referring to an underlying rationality. Mandume, a Swapo ex-combatant who had become a SFF policeman,184 _{answered my questions on the}

issue in the following way:

LM: When you go patrolling with your colleagues, how are your relations with the people, with the public; what do they think about you?

Mandume: The relationship with the public is fine, but the main aim for us to be part, to join the police was that people have lost respect of the police, so we are the ones to uproot the weed, which will gain more respect for the police.

LM: So, what are the ways or methods of doing this?

Mandume: There are many ways to do that, the methods…of taking care of the person, beat him up even, because if you beat the person, corporal punishment, in most cases that person will not repeat it again…There were many things here, like foreigners have been attacked, and things have been taken away from them, but now go around, you will see that it has dropped.

Here a different normative code from that of human rights talk emerges, one centred on respect and order. A similar concern with the public’s attitudes towards the police arises, if less straightforwardly, in many of my interviews with high-ranking officials. One argued that the public lost respect for the police after the shift from police force to police service. For others, the lack of respect and hostile attitudes are legacies from the time before independence when the police were rightly understood to be an oppressive force.

There is a pervasive subscript to the implications of human rights in police discourse which argues that the human rights emphasis has led to increased arrogance in the Namibian public: the people have lost respect for the police and

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therefore cause trouble. Awareness of their rights by members of the public breaks down the hierarchical relationship expected by the police and thus leads to increased uncertainty and conflictuality in interaction. To compensate, it is argued, the police might sometimes resort to violence to reaffirm their authority, something necessary to maintaining law and order. Here, a move is made from the dictates that regulate members into the world of real encounters between the police and the public, which are recognized as mutually constructed interaction and practical negotiation rather than mere implementation of prior principles.

This explanatory moral notion of respect is tied to ideas of order and authority and their fundamental importance, which leads us to refer to the decisionist approach to sovereignty originally outlined by Schmitt (2005). As he famously put it, ‘sovereign is he who decides on the exception’ (ibid.: 5). However, as Hussain (2003: 20) points out, Schmitt does not only stress the ability to decide on the exception but also, by inversion, the ability to decide when normal conditions prevail and therefore, to decide whether legal norms apply or not. In this way, sovereignty conditions and encapsulates legality (Schmitt 2005: 13).

Exceptional situations such as wars or states of emergency have usually been seen as the most typical situations where this decisionist character of sovereignty becomes visible because they appear as a threat not to a particular law but to the very existence of the political order. As put by Hussain (2003: 107): ‘Crime is a transgression against the law that may be checked by it. A more general unrest threatens not so much to transgress the law as to set up an alternative logic and authority to it.’ The typical response to such a situation is to declare a state of emergency or martial law, a decision that involves significantly curbing ordinary legal mechanisms in favour of wide executive discretion. ‘Martial law seeks to effect not just the restoration of order but the restoration of the general authority of the state…of what legal theorists like to call the “habit of obedience”’ (ibid.: 124, 130.) The Caprivi secession attempt and the unrest along the Namibia-Angola border shortly thereafter fit this description quite clearly. These incidents and the widely reported responses by the NDF and SFF brought the violent basis of sovereignty temporarily into the open on a large scale and revealed its tense relation to the rule of law in the sense of correct procedures and fundamental rights.

However, apart from such explicit emergencies, there are elements of ‘emergency’ built into everyday forms and logics of policing, and these might

eventually be more illuminating for concerns related to Namibian state formation and the role of policing within it. What must be added to Hussain’s distinction, noted above, between crime and ‘a more general unrest’ is that in Namibia (as in South Africa, see e.g. Jensen 2005; Comaroff and Comaroff 2004) the question of crime has grown to such proportions that it challenges the ability of the law to contain it.185 Crime is seen as something that threatens the survival and fabric of society and thus appears as a matter of ontological insecurity, bordering on a condition of institutionalized emergency, something which has led to calls for tougher measures. The Commission of Inquiry into Legislation for the More Effective Combating of Crime in Namibia, chaired by Judge Bryan O’Linn in 1996- 1997, arranged public hearings around the country and uncovered a widespread view that the rights of the victims and ‘law-abiding members of society’ should be emphasized instead of those of the accused and convicted (Nandjaa 1997: 8-9). At their most extreme, the demands for tougher sentences comprise recurrent calls for a reintroduction of the death penalty that was abolished at independence, as well as widespread support for corporal punishment. For example, in the hearings of the O’Linn Commission it was proposed that ‘corporal punishment be reintroduced for crimes of violence and in cases of juveniles’, as ‘corporal punishment was a traditional form of punishment imposed by many traditional and indigenous authorities in Namibia’ (Nandjaa 1997: 8-9).186

Strong executive control has been a feature of Namibian modern statehood throughout its history. The perception of pervasive crime appears as a threat to order, hence the urge to act against it without restraint. This is not really a matter of whether the death penalty or less extreme forms of corporal punishment are proportional responses to certain crimes or successful deterrents of future crime, both hotly debated issues. What is more at issue is how capital punishment and, less dramatically, corporal punishment, make the link between law and violence clearly visible and, hence, reassert the sovereignty of the state – or other political authority

185

I am referring to the discourse on crime rather than actual crime levels. While certain crimes, including violent ones, are prevalent in Namibia, available statistics show relatively stable levels rather than an increase (see Nampol n.d.: 14; Boer 2004: 124; Nandjaa 1997: 2-6). This point was also made by the Permanent Secretary of Safety and Security (Peter Mwatile, interview, 27 January 2009).

186 _{Bayart (2000: 256-8) draws attention to the ways in which violent practices and the idea of}

corporal punishment have remained central to the social institutions of the postcolonial state across Africa.

– that enacts these punishments. Benjamin (1978: 286) writes: ‘If violence, violence crowned by fate, is the origin of law, then it may be readily supposed that where the highest violence, that over life and death, occurs in the legal system, the origins of law jut manifestly and fearsomely into existence.’

The above public perceptions are important to note, as they show that the framing of at least certain acts of police violence as corporal punishment does not indicate an isolated feature of ‘cop culture’ but may have some resonance with popular perceptions and social norms. For example, in former Ovamboland, there is a considerable break from the past in the sense that whereas political hostility existed between the earlier police and military forces, and the people, the SFF consists mainly of people from Ovambo backgrounds who are former Swapo exiles, which often ensures close and friendly relations between the general public and force members; they are seen as ‘our sons and brothers’ who represent ‘our government’. Furthermore, their methods of ‘instant justice’, evident in the case I described above, are not necessarily resented by the locals. In the discussions I had with non-SFF members about the force, a combination of fear, respect and derision was common. It is widely perceived that the due course of criminal investigation is painstakingly slow, if it happens at all, due to shortages of transport, personnel, and the like. Many are happy to see criminals get instant punishment instead of receiving lenient treatment, as long as the culprits are correctly identified. This resonates with the widely held local perception of the corrective powers of corporal punishment that I referred to above (see also Buur 2005; Jefferson 2005). Thus, the work of the SFF in Ovamboland approaches ‘policing by consent’, although it does not reflect a soft, civilian form of policing informed by human rights discourse and corresponding to the individual rights guaranteed in the constitution.187 Unfortunately, the innocent sometimes also suffer because ‘these uneducated fools’ (as one research participant described them) make mistakes.

This brings us to the elusiveness of the concept of ‘the community’ that has informed Namibian police reforms since independence, and the current vogue of community policing in particular, whose connotations of a unified and harmonious coexistence are rarely, if ever, actually realized. Therefore, it is easy for responsibility for policing to be increasingly vested in an idealised ‘community’ that

187

In other Namibian regions, however, the perceived continuities between the SFF and its colonial predecessors might be greater.

is expected to share the interests and objectives of the police, whereas members of real communities fail to live up to these expectations because of their deeply ingrained suspicion towards the police, their engagement in illicit economic activities or other reasons. The notion of ‘the community’ then gives way to a split between ‘law-abiding citizens’ and ‘criminals’ or ‘troublemakers’: into those who cooperate and those who need to be disciplined (see Jensen 2005, 2010). Much of the community is seen to suffer from criminality, low levels of education, poverty and so on, and those who embody these qualities are easily externalized and demonized to become ‘police property’ (Reiner 2000: 93-4, 214) towards whom the violence threshold is lowered. When a Nampol sergeant was accused of violence by an inmate during an inspection of the Standing Committee on Security of the Parliament, he ‘said the police was only using minimum force to apprehend these culprits. He also explained that there was one part of the community that was co- operating with the police and another that was not’ (Republic of Namibia 2003: 18).

Together, the rhetorical devices of crime as a pervasive and escalating danger, the lack of respect for the police by the public and the division of community into ‘criminals’ or ‘troublemakers’ and ‘law-abiding citizens’, along with with the widespread acceptance of violence framed as the corrective measure of corporal punishment, prepare the ground for situations in which the ‘normal condition’ gives way to exceptional measures in policing the ‘internal frontier’ (Buur, Jensen and Stepputat 2007: 27) of the postcolonial state.