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Why a law designed to fight gang violence in South Africa can’t do the job

South African President Cyril Ramaphosa at the launch of a national anti-gang unit in Cape Town. GCIS

Crime statistics from the South African Police Service show that gang related murders are increasing sharply, particularly in the suburbs that make up the Cape Flats in the Western Cape. The area is the epicentre of gang activity in the country. One in every five of the 3 729 people murdered in the province between April 2017 and March 2018 were the victims of gangs.

Los Angeles in the US has a comparable gang problem. But even it has had a lower rate of gang related murders in the past three years.

Last year I concluded the first comprehensive analysis of the main law designed to deal with gang related crimes. I specifically looked at Chapter 4 of the Prevention of Organised Crime Act to investigate the shortcomings of the legislation in combating gang related crimes.

My analysis uncovered several shortcomings – including issues such as sentencing and the fact that the law falls short of being specific on gang related crimes – that frustrate the prosecution and conviction of gangs.

Research findings

I found that the state’s failure to protect the inhabitants of the Cape Flats can in great part be attributed to the failure of Chapter 4 of the law, which was enacted in 1999 to combat organised crime. That includes gang related crime.

One of the biggest problems is that the law doesn’t have the power to disrupt gangs’ structures and capabilities. This is partly due to weak sentences for gang related crimes. They range between three and six years, mostly with the option of a fine. The sentences are ineffectual in deterring gang members and are also too short to disrupt the organisational structure of the gangs.

My research also highlighted the fact that low sentences were often given to high-ranking gang members or bosses, on whose orders the offences such as drug dealing, assault, robbery or murder are often committed.

This issue is worsened because the Prevention of Organised Crime Act doesn’t contain any offence that is specifically aimed at gang leaders. The closest it comes to targeting them is through the provision for the crime of inducing another to commit gang activities. This carries a maximum sentence of three years, or an unspecified fine.

This is in stark contrast to crimes pertaining to managing criminal racketeering enterprises. These offences carry a R100 million fine or life imprisonment.

A further issue is that proving crimes were committed on the instruction of gang leaders is extremely difficult. That’s because gang leaders are mostly far removed from the actual crimes, which are executed by their subordinates. There’s often no evidence linking the leaders to the actual crimes, making it practically impossible for the state to prove their involvement beyond a reasonable doubt in trials.

Prosecutions based on the act are often derailed due to a lack of evidence, also because of the complex nature of the crimes.

Ineffective policing

The Western Cape government has been very vocal in claiming successes in its fight against gangs. For example, it claimed last August that its anti-crime operation had made over “11,000 arrests including high-ranking gang members on the Cape Flats”. This seems exorbitant, considering that the total number of people awaiting trial in the entire country during 2016 and 2017 was about 43 799.

But the public should be weary of this misleading language. Arrests don’t translate into prosecutions; and prosecutions don’t translate into convictions. In fact, Helen Zille, the Premier of the Western Cape, criticised the low 0,7% gang conviction rate two years ago.

The gang crisis is aggravated by the shortage of police officers in the country. In 2015 it was reported that about 85% of South African police stations were understaffed.

Another problem is the unfair allocation of police resources. In December 2018, the Equality Court found that the allocation of police resources unfairly discriminated “against black and poor people on the basis of race and poverty”. Many of those under-served areas are rife with gang activity.

What can be done?

The law needs to change to provide for crimes that are simpler to prove, and include provisions that specifically target gang leaders. This should be coupled with harsher sentences.

Ensuring that gang leaders are directly accountable for the crimes committed by their subordinates would solve the problem in providing evidence in court that the crimes were committed on the bosses’ instructions. Proof that the boss controls the gang, for instance, would be enough to secure a conviction. Such models are recognised under international criminal law.

A controversial option, akin to Australia’s New South Wales model, would be to outlaw the formation of gangs and membership. This might, however, lead to the infringement of the constitutional right to freedom of association.

None of the necessary changes will happen without real political will. The establishment of the Anti-Gang Unit in the Western Cape in late 2018 was a step in the right direction. But its true value will be reflected in actual convictions for gang-related crimes.

This was updated in the light of new developments.

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