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Australian Journal of Human Rights |
“They have no idea of how to use those things (prods) but I can tell you one thing they will not be able to use them here again.”[3]
The decentralisation of the state, a process driven fundamentally by neo-liberal politics that have been spreading throughout the “Western World” in the last decade or so,[6] has also impacted on the role that the state traditionally played in the provision of police services. In a way, a gradual process has been consistently taking place by which state services in the area of safety and security have been either contracted to the private sector, totally privatised or relinquished by the state.
These developments profoundly affect the discussion and practice of a culture of human rights in our communities and the nature and notion of the state.[7] In some respects, privatisation of policing services to private agencies means less centralised accountability. It also means less egalitarian and democratic social interactions between citizens, and potentially more undemocratic practices between unequal “consumers/buyers” and “sellers” in the realm of the market.[8] But it also has an impact on the nature of state sovereignty. It means that state sovereignty is reduced and fragmented in the new public space.[9] This in itself will have an impact on the definition of acceptable “orders” and their regulation.
In a contradictory way, what is involved is a tension between liberal modern traditions of a culture of rights and the state, vis-à-vis emerging new culture/s without clear rights and without a clear sovereign state. The question that then emerges is: who will protect my rights in the new public but privatised space, where the state is no longer the primary player exercising sovereignty?
The impact of privatisation in the social realm is beyond the scope of this article. However, by examining the impact of this process in the transformation and development of policing services, one can then begin to assess the situation in a more focussed way and its impact on a culture of human rights. In particular, privatisation is forcing many Western societies to re-examine the way they used to think — moving the paradigm from equal citizens (interacting before the state) to unequal consumers (interacting within the logic of the market forces), and in particular, of unequal recipients of private policing treatment.
The above is important for us because, and paraphrasing the African American intellectual and civil rights leader, Malcom X, private policing conducts its activities “by any means necessary”. This process, in a particular conjuncture of the state retreating from its traditional functions, can leave us with a reign of corporate anarchy, where for the sake of capital accumulation, anything can be done in order to maximise profits.[10]
In this article we would like to explore the above line of thought. In particular, we are motivated by our current experiences living in Australia and South Africa, where the privatisation of police service, amongst other components of the criminal justice system, is moving along with great speed. In both societies, the impact of the privatisation of the police service in the new private space has yet to be adequately assessed.
We are bringing together aspects of our current work in both countries, with sometimes different theoretical frameworks and experiences. However, we are attempting to develop an intellectual “bridge” which can assist in the process of formulating a radical critique to the transformation of policing in this neoliberal era. In addition, we are incorporating aspects of our empirical work in both countries which will assist in illustrating our arguments — sometimes by way of illustrating the situation via a case study, sometimes by a brief commentary by way of a footnote.
In the first part of this article we will provide a theoretical framework to shape our discussion. In the second part, we will illustrate our framework with a particular research case study in which we have been involved, in particular in the field of police. Thirdly, we will provide the implication of these case study for a culture of human rights by way of the conclusion.
The incapacity of the security company to control the people resulted in a chaotic situation. As one eye-witness stated for the press:
There was a large crowd of people holding their tickets in the air shouting they have tickets, and the next thing the security guys are prodding people with these electric sticks,” he said. .... According to Maneli the people started screaming as the increasingly angry crowd forged forward crushing commuters in the narrow control point.
They did not even warn anyone before they started prodding the people like cattle ... .[11]
Tembisa is perhaps the first example in recent South African history where the decentralization of the state and the privatisation of its functions has had a negative result for the underprivileged citizens, and for the unequal consumers. Although an enquiry into this incident is still underway, newspaper coverage suggests that un-regulated force used by the private security company might had led or contributed to this disaster — electric prods are not regulated in South Africa by the state, and the only way to find out about their legal use was by way of consulting with the manufacturer, who stated that “they were invented in America... they were completely legal and non-lethal”.[12] In a way, Tembisa is an illustration of the limits and contradictions between a deregulating state and an emerging private policing industry.
The work of Shearing, Shearing and Stenning, Johnston, O’Malley and Palmer constitute an important theoretical source to analyse the impact of the privatisation of security in the public and private domains.[13] Their point of departure is that although policing has never been completely exercised by state police since the formation of state police in 1829 in the United Kingdom, the state has continuously attempted to exercised greater control in the regulation of state and not-state policing.[14] The changing political circumstance in which policing takes place, have created a particular environment of laissez faire, with devastating consequences for those who are being policed by private security agencies.[15]
As Shearing argues in relation to the experience of North America, in the period immediately after the Second World War, many spheres of life were effectively policed by private security services; for instance the insurance company, the corporate world and the private club.[16] This experience, however, needs to be examined as part of a particular period of over expansion of the welfare state in that region of the world, in particular in the Western world after the Second World War, where a particular social construction between the public and the private was effectively developed in order to establish the rights and obligations of the people/citizen in relation to the state and within civil society.[17]
But although the distinction between the public and the private domain has been very important in the field of policing, Shearing and Stenning argue that more and more that distinction began to blur and up to a certain point became irrelevant in the 1980s.[18] These authors argue that private and public policing developed a different relationship of complementing each other within the criminal justice system.[19] However, the fundamental difference was, and still remains, that although in principle guaranteeing an equal order, both entities differ greatly in the nature and the content of their approach when engaged in security activities.
For the state police, security is supposed to be confined within the logic of a culture of rights, guaranteed, for example, in South Africa by a constitution, where all citizens needs to be treated equally.[20] On the contrary, for the private security system, equality is not what needs to be preserved, but a particular pre-determined order which is required for the environment where the service is required. In particular, for private policing order is determined by the needs of capital accumulation as defined in the different instances where private policing operates. As the case study, discussed below, suggests, for the private security industry the maintenance or order is determined by the logic of making profits.
The key concept which then differentiates the role of both sources of policing, according to Shearing and Stenning, is that the state (and state functions) has been gradually substituted from the daily life of the citizen, who interact more and more in “mass private property” owned by corporate capital, which has become the “new” public place.[21] In particular, these authors are suggesting that places like the shopping mall, privately run amusement parks, and entertainment venues, have become the public space where citizens now meet. The nature of these places, is one determined by the needs of owners — in most cases run by corporate capital.
In this privately owned place, corporate capital’s logic of security reigns supreme. The need of security in this domain is not necessarily defined within the logic of state police, but within a particular logic that requires a particular type of behavior — consumption of goods in exchange and driven by the market economy. This corporate domain, creates and fosters an “order” of consumption — to which wrongful behaviours are subjected and corrected, so that the person/s can continue purchasing.
In this regard, Shearing and Stenning suggest that “private security defines deviance in instrumental rather than moral terms: protecting corporate interests becomes more important than fighting crime...”[22] But instead of being concerned about individual civil rights or human rights, private security of the “new” public space is more concerned about how to create conditions which can assist in promoting the logic of capital accumulation and the avoidance of any interference with this process.
At the symbolic level, private policing is less interested in creating “signs”, these are symbolic representations, which are equivalent to those of the state police, but in creating conditions which enhance safety and security at the lowest expense. It is about re-inventing the logic of policing, without being interested in dealing with crime, but in reducing the risk of conditions that disrupt a particular order which is needed.
The best example to illustrate the above argument is Shearing and Stenning’s famous visit to the amusement park called Disney World in the USA.[23] In this park, visited by thousands of people daily, visible police — private or public — are non-existent. In this particular place, policing is conducted by every single employee of the amusement park, either normally dressed or dressed like a clown, who is there to tell the visitor about their expected behavior whilst in the park. In this “new” public space, the price to pay in order to stay and participate, is that defined by the corporate sector — not complying with this autocratic order means to be removed from the “public” place and not to be able to enjoy consuming it.[24]
In this regard, Shearing and Stenning may be correct when they argue that the repercussion of the “new” public place, protected by private policing, is the development of a new sovereign, different to that of the state, where private justice reigns.[25] This new sovereign, which is not accountable to the citizen but only to the corporate capital which controls it, defines what is acceptable and non-acceptable forms of order, in a way that can contradict the “order”of the state.[26] It is a type of private justice that can be unfair and unequal, depending on where one is located as a potential consumer.
This situation then impacts on the sovereignty of the state — as understood from a modern nation state perspective.[27] The state sovereignty in the “new” public spaces can be either enhanced or modified by the needs of corporate capital, which is ultimately exercising its rights as property owner to define what type of behavior is acceptable within its private premises. The effect of this phenomenon has been studied by others, and as Shearing suggests it creates a great deal of confusion and anxiety:
If the pluralist position is correct, the emerging landscape of fractured sovereignty raises fundamental questions about what response should be adopted to this globalization and privatization of policing and governance more generally. Scholars who take the pluralist arguments seriously have expressed an ambivalent response. They are inclined to welcome the shift in governance from the state to the community on the grounds that it enhances local control and autonomy. They are concerned, however, about the emergence of corporate “communities” in which corporations act as private governments with enormous power over their “citizens”.[28]
What we will have to begin to realise is that the transformation of the state, and its decentralisation of its traditional functions (at least, more clearly since the 1940s onwards) have given way to the development of parallel corporate sovereign spaces, where the culture of rights as protected within the logic of the state is fragmented and qualitatively diverse.[29] This aspect, we argue, will have a conflictive impact in the areas now to be controlled by corporate capital such as private policing, where lack of regulation can give way to a very uncertain existence.
For example, like any other capitalist business, the raison d’être of private security is profit generation,[30] which controls strategies, and is more instrumental than moral.[31] A discordance is therefore created between the private need of capital to accumulate profit against the social need of the community for protection:
The problem with private agents representing corporate and personal interests is that these agents are relatively free to determine what is right and what is wrong in the context of what is good for the company. What is good for the company may not coincide with what is good for the pubic.[32]
Moreover, private authority is self-defined and arbitrarily imposed. Largely unaccountable, it is subject to abuse and illegalities. But fundamentally, as we will illustrate below through the example in South Africa, the sovereign authority that private security commands in the private space, creates an environment where equality is not defined by the simple fact that one is a human being, but by one’s potential to consume.
More recently, during the 1960s the private police sector expanded exponentially, such that by the 1970s it accounted for a significant part of all police functions in North America and Europe.[34] By the 1990s the size of the private police sector was larger than the public police force in the United States,[35] and a number of other Western countries. Similarly, private security employment (160,000) currently exceeds that for public police officers in the United Kingdom, and the market is now worth 2.5 billion pounds.[36] By 2000 it is estimated that in the state of Victoria, Australia, there will be a ratio of private to public police of 10 to 1.[37] South Africa has similarly experienced a massive expansion in private security, since the early 1980s, and it is estimated that the current ratio is that of 5 to 1.[38]
Before proceeding to chart the reasons for the dramatic re-emergence of private policing, we should attempt to set forth what we mean by policing and private policing. Shearing argues that policing is the “preservation of peace” or security. Peace also denotes a prediction that protection will endure, as well as a reduction of, or absence of, risk.[39] While this approach has some merit, it is not sufficient to examine the broader socio-economic impact of private policing in our daily lives. A more holistic perspective is offered by Spitzer, which we will employ:
... our understanding of police work and police institutions in class society must be forged from an examination of the entire framework of material relationships, conditions, and conflicts within which these arrangements and interests emerge.[40]
A slightly more sophisticated gloss on this approach is suggested by Johnston, who believes that policing consists of a “diverse totality” of elements, exercised by a range of “alternative providers” in a growing number of communities. He argues that:
the processes associated with late modern social change give rise to fragmented economic, social and state forms, a fragmentation which is reflected in the sphere of policing”.[41]
Private policing is similarly characterised by a diverse totality of manifestations. It includes:
a wide variety of occupations such as locksmiths, building security staff, patrol officers, crowd controllers, bouncers, alarm and security door installers, private detectives, control room operators, transport staff, communications experts and consultants. Its three main elements comprise suppliers of hardware, guardians and investigators.[42]
Traditionally a clear line has been drawn between private and public policing: the private police function has been viewed as pro-active preventative protectors of private property, while the public police have been reactive passive law enforcers in the “public interest”. But as we shall see later, this artificial distinction between the private and the public is no longer sustainable.
The growth of private security is also rooted in the fear of crime, fuelled largely by real and imagined increases in crime, which have created an environment in which private security has been able to expand significantly.[45] It is therefore linked to individual and collective feelings of insecurity and fear of crime. This subjective side of the security problem is something tangible to most individuals and communities, and needs to be explored more seriously.[46]
Private policing is associated with community insularity, isolation, paranoia and prejudice, all of which erode communitarianism, social solidarity and community-building. Since the crime problem is considered to be localised in an alien culture, the exclusive community feels correspondingly safer.[47] But the consumption of security as a commodity may not produce its intended subjective state, the feeling of security. In fact, the greater purchasing of security may lead to greater insecurity,[48] since one is led into the belief that only through the increasing accumulation of security sytems can one achieve true safety, as well as the false sense of security which invites danger.
Private security also fosters the mistaken belief that structural social inequalities, which spawn the violence and property theft communities fear, need not be addressed. Rather than seeking to correct the socio-economic conditions that give rise to criminality, one focusses solely on protecting one’s own property. Accordingly, such inequalities are perpetuated and usually intensified, while communities are disempowered from their responsibility to protect themselves. It is hard to tell whether such fear of crime is the cause of the massive growth of private policing or the pretext for such growth. In any event, it is certainly part of the context surrounding this development.
Another factor driving the private policing expansion is the fiscal crisis of the state. Western governments have been uniformly engaging in a neo-liberal programme of sweeping cutbacks in public services for many years. A massive movement towards privatisation has led to the transfer to the private sector of a variety of public services.
In South Africa the privatisation drive, for example, has received the imprimatur of the Reconstruction and Development Programme (“RDP”)[49] and President Mandela, and it is now well advanced.[50] The privatisation campaign has also enabled Western governments to curtail the power of the unions, in order to shore up the profit margin of the business community and diminish labour unrest. The relative weakness of the unions and their leaderships has enabled this process to unfold with little effective union opposition. Consequently, there is great pressure on funding to public police forces. In this context governments wish to “obtain more from the police in the context of increasing crime figures, unlimited public expectations, and a perceived failure of the police to fight crime,” based primarily on the notion of cost effectiveness, economy and efficiency.[51]
While it is true that the privatisation of policing has not been driven solely by the fiscal crisis of the state,[52] since there are a number of other factors propelling this development (for instance the drive for profit maximization, the growing militarisation of policing and the expanding privatisation process), it is nonetheless a key determinant. For it is considered by these governments to be more cost-effective to use poorly paid and trained and generally non-unionised private police, rather than better paid and trained unionised public police. In the context of continuing and deepening cutbacks in public spending, as well as a deteriorating world economy, the drive towards police privatisation is inevitable.
Private policing is part of a massive reorganisation of policing, which has been unfolding internationally. Various forms of privatisation have been explored and implemented, including denationalisation, liberalisation (where competition is introduced into public monopolies), substitution of customer fees for tax finance and contracting out.[53] In the United Kingdom, for instance, some have argued that the purpose of the recent Home Office Review of Police Core and Ancillary Tasks (the “Review”) is to identify “a number of supposedly discrete activities currently undertaken by the police that might be contracted out to the private sector”.[54]
Some commentators, however, anticipate a further bifurcated system between public and private police, based on the goals proposed by the Review and a “more limited application of market principles”.[55] On the belief that private security firms carry on functions which overlap with public police functions, the contracting out option would result in separating off certain functions to private concerns, which would allow the public police to concentrate on their “core activities”.
The public police in the United Kingdom are worried that the Review is driven by a desire to cut costs, rather than ensure that policing is undertaken in a more effective manner. Many recent legislative changes (for instance “codifying” the federal rules of evidence in Australia[56]) have been sold on notions of efficiency and fairness, but these reforms are more strongly driven by notions of efficiency. Similarly, in the United Kingdom context, effectiveness may be the official discourse, but the real motivation is cost control.
The growing privatisation of police is part of a widening of the net of social control in the interests of big business and the wealthy.[57] For it is these sectors who primarily pay for and benefit from private security. Confronted with a worsening world economic situation and a general falling rate of profits, private capital has become more aggressive in protecting its property and its profits. As well, privatisation has brought more of daily life under the control of an oppressive state[58] which desires increasingly to monitor, marginalise and criminalise its populace, working in conjunction with private capital. This process is most advanced in the West, but it is unfolding also in the former Soviet Union and Eastern Bloc countries. One of the less obvious forms of privatisation is its ability to expand the state’s capacity to punish,[59] notably the power of the private police to turn over violators to the public police for criminal prosecution.
In addition to surveillance, investigation, adjudicatory and penalising functions, the social control element of private policing is enforced to stimulate “community” involvement, responsibility, conformity and company loyalty[60] by an effort to create an allegiance in and respect for the policing process, which benefit both the state as well as the business community. In the context of world-wide growing threats of redundancies and lay-offs in the workplace, social control will become an increasingly prominent aspect of work. The message that private security is a universal good has, in fact, been widely accepted, along with the changes in traditional policing, on the premise that they benefit the entire community:
This paradigm shift is a fundamental shift in the way society perceives and understands the nature and function of the policing and judicial services. It is more than a change in function, it is a change in the ethic and public perspective of policing and justice in society. These changes represent a moving from power invested in a few and dispersed, by the state, to a personal empowerment, self-interest, and private servicing, where economic cost benefit plays a determining role in the nature and quality of service. Indeed, it is a change in the politics of power.[61]
Privatisation is an economic process, but it must also be viewed in a social structural context. There are economic, social and political changes which are contributing to the demands for private policing, including:
The most powerful rationale for private policing is its preservation of private property. The “sanctity” of private property is emphasised to provide a “moral basis” for corporate security.[63] There is a general belief that private property owners have a right to protect their property, including the use of lethal force. Although private security also police large areas of “public” space, Shearing and Stenning argue that a key feature of late 20th Century society is the emergence of “mass private property.” Private policing emerged, they argue, as a response to the development of “large geographically connected holdings of mass private property”.[64] But as Johnston cogently argues:
Mass private property’ is inherently ambiguous since its archetypal form — the shopping mall — combines apparently contradictory social relations: private property ownership with relatively unrestricted public access. In that context, the function of private security is to resolve that contradiction: to maximize public access in order to optimise consumption whilst, at the same time, restricting entry to those who might undermine the commercial imperative (shoplifters, beggars, vagrants, drunks or rowdy youths)[65]
In any event, both police and private policing have been transformed into commodities, which are sold to those who can afford them.
Does private security patrol in neighbourhoods, therefore, serve as a form of class injustice leaving the less well-off, who have fewer resources and often greater need, in a less secure and hostile environment than those who have the economic power to purchase their security through the market?[68]
The movement towards private policing may in fact reduce the quality of the service provided by public police, since a smaller public sector — which will be forced to only deal with the most “serious” of crimes — will be harsher for the less privileged. Already public police departments have been shifting their resources away from crimes which had a low probability of detection and low financial value, in relation to property crime.[69] Put another way:
Large areas of society do not have the power of choice. Increased security measures are, therefore, a good thing for those exclusive communities who have purchased them. Those who have not, for instance, those who do not have private security patrol, should not be surprised if they experience more of the crime problems that their better patrolled neighbours formerly experienced but now deflect elsewhere. Accordingly, inequality leads to oppression.[70]
The resulting displacement or deflection effect is not an insignificant one, especially in poor communities. For greater security in richer areas may displace and increase crime in less well-off areas, and we have already witnessed that repercussion in response to the use of security personnel and security cameras.
An additional problem is that in some countries, for instance the United States, constitutional standards that prohibit civil liberties violations generally only apply to government personnel. Since private police are generally not involved in “state action” they are not governed by such standards,[73] consequently there exists no constitutional recourse to such violations.
Strictly speaking, private police may only exercise the kinds of powers granted to it through the law of contract, tort and the common law right of arrest granted to all citizens.[74] They derive what authority they have from those for whom they act as agents, for instance private property owners or employers, including the right to remove, with reasonable force, trespassers. Private security personnel normally have no additional powers of arrest to the powers they are granted at common law, which permit “citizens’ arrests” in limited circumstances.[75] But private police and their employees may exercise powers beyond the scope of public police and ordinary citizens: “They are able to conduct searches, arbitrarily restrict people from private places and services and as instruments of their employers, restrict employment, housing or bank facilities to ordinary citizens”.[76]
Increasingly private police, particularly in the United States, have law enforcement powers of arrest and the right to use deadly force,[77] which can result in civil liberties violations as well as unjustifiable injury or death. Particularly since security personnel have the right to self-defence, as any other citizen, and may use “reasonable force” to protect themselves against attack.[78]
In the future such broad powers of arrest and the right to use violence may be granted in other countries. While it is true that the use of force, such as arrest, usually remains in the hands of public police, given these expanding powers of arrest and the proliferation of private security personnel, the use of arrest and varying degrees of force will be increasingly exercised by private police.
Considering the profit motive driving private security, this may lead to an increase in the number of such arrests, since the worth of private policing will be weighed, as occurs in public policing, in terms of the number of arrests. To increase profits, costs and corners may be cut, resulting in incomplete investigations, and a curtailment of the rights of the accused, all in the interests of “expediency.” A corollary is that if private policing is no longer deemed to be profitable, it may be terminated, creating a void which may or may not be filled by public policing.
Furthermore, the mere presence of private security personnel may incite violent or anti-social action that otherwise would not take place. Historically private entrepreneurs have “encouraged the very behaviour they were supposed to suppress,” including entrapping innocent citizens into crimes to obtain rewards.[79] Private security personnel frequently include current or former police officers, and due to minimal or non-existent requirements, also include individuals with criminal records. Such individuals, due to their past or training, may be more likely to incite such violence.
The danger also exists that illegal activities may be committed through electronic surveillance, industrial sabotage and the many other activities of private police.[80] Closed-circuit television or video surveillance cameras, for example, are increasingly being used in the public arena in many countries and monitored by private security personnel, which may challenge the right to privacy. Such cameras are being used in public housing estates, hospitals, schools and a variety of other private and public institutions,[81] and their use will become more prevalent in the future, as a nervous state and jittery private sector need to keep a closer eye on its populace.
To state that the “management” (in the parlance of the security officers of the Mall) of the premises can define who does and does not enter the Mall, is to establish a sovereign authority, which is almost equal to that of the state, but which is relatively supreme within the confines of the Mall.[83] This does not mean that if an extreme situation takes place, for example a murder, the state would not be notified. On the contrary, the state is always notified on issues of crime, which in the last instance re-asserts the authority of the state and the rule of law. However, it is at the level of the margins of the law, in the shadows of the law as Foucault reminds us, where the sovereignty of corporate capital, exercised by private security, is brutal.
By establishing a normative order that defines who can be admitted and who can be excluded from the Mall, private policing establishes an unequal/discriminatory domain. The law of the state, the Constitution, in contradiction to this private domain, establishes that “everyone is equal before the law and has the right to equal protection and benefit of the law”.[84] However, the private domain in opposition to this constitutional mandate, in practice states that some people are more equal than other, and the less equal may be excluded by way of “right of admission reserved”.
When the supervisor of the security officers was asked why the company has these signs at the entrance of each door, he stated that “basically this means that no hawkers and beggars are allowed”.[85] In other words, the Mall, through the private policing company, creates categories of “dangerous people”, who need to be excluded. Although the supervisor of the private security company, a white male in his late 20s, could not explain why some category of people were excluded, his subordinates, mostly black males, were able to explain.
Most of the security officers explained that the Mall was an “upper class shopping center”, and that people without money (in the case of the beggars) or people who need to sell and harass customers by way of shouting (in the case of the hawkers) were not welcome. The necessary implication is that both beggars and hawkers tend to disrupt the order required for peaceful consumption in the Mall. However, after the issue of “dangerous [categories] of people” was further discussed, it seem as if the security officers were trained and informed to exclude, what they called, “street people” — this is hawkers, beggars and street children.[86]
A second area of interest of what constitutes a disruption of the necessary order in the Mall, is what is there defined as unacceptable behaviour and crimes. In a way, all people interviewed confirmed that the biggest crime in the Mall is that of shoplifting, bag snatching, car radio theft and trespassing. In fact, as part of this research project the logbook of the private policing company in the Mall was explored, which revealed that in a period of six month (June to December 1994) the most serious crime was that of shoplifting, which during that period was reported in eight occasions by the different tenants to the security officers. There was one case of stealing a bag from a customer, although the matter was solved.
What is significant here is that crime for this company (the Mall and the private security firm) means fundamentally an action against private property, specifically against the private property which belongs to the tenants. Although as one of the cases demonstrated, if property is stolen from customers, the private policing company will also intervene. Other types of crimes, unless they seriously disrupt the peace and order of the Mall, are not handled by private police.
An example of this was the case of a domestic dispute and violence. For the private security company this was not an issue that they needed to handle. The supervisors of the security officers related a story which is an illuminating example:
A. The other day I walked past a man and woman having an argument. The next thing I heard was a loud crash. I turned around not realizing what it was and then he hit her again. I intervened and told them to leave. They can go and fight somewhere else. That is not my business.Q. So you would not lay a charge of assault against him?
A. No. Only if he hit her very badly, so that she was bleeding or something.[87]
For the sovereign of this corporate sector, what is a crime within the confines of state sovereignty, is not a crime for them. Not only this locates people in a disadvantaged position — with more rights under state sovereignty and less rights under private sovereignty — but it also reaffirms a culture of less equality in the “new” public space. For the supervisor, for example, domestic violence is a crime, provided that it interferes with the peace and stability of the Mall. However, the supervisor will not see this type of crime within the perspective of every citizen to be treated equally before the law and with respect. Within his logic, as consumers who do not interfere with the logic of consumption, we are equals; as citizens we are not — it is irrelevant for the logic of the private security company.
This analysis connects to the final point that we would like to explore about the Mall, which is the nature of punishment or sanctions established by this sovereign power. As illustrated by the above quote of the supervisor of the security officers, it seems as if in the Mall the worse scenario is that of depriving someone of being in it — the right of admission reserved.
When both the supervisor and the security officers were asked what happens when people were caught not behaving properly (e.g. drunk), the immediate response was to tell the person to leave the premises. In case of shoplifting, the final word of what to do lies with the tenant, who at his or her discretion could call the South African Police Service (SAPS). However, as the supervisor stated, the most common scenario was just to ask the person to leave the premises, not allowing him or her to come in again, and dropping the criminal charges with the SAPS.
For example, in cases of shoplitfing the rationale involved to avoid conflict with the state law, are illustrated by the following answer of the supervisor.
Q. People can be prosecuted. Who lays the charge?A. The shops are their [tenants] area. We [security officers] are in the Malls.
Usually they do not prosecute. It is a hassle for them. Then they have to leave the shop for a day in order to go to court and testify.[88]
In the Mall, the order of this private/corporate sovereign is one which is driven by the capacity to accumulate more capital and by avoiding any disruption to that order. Matters of equality, of state law and order and the criminal justice system, are engaged in a very discretionary way. It depends on the nature of the matter and how it affects the logic of capital accumulation. At the end of the day, what the Mall needs is not more people in jails, but more people that can come to consume. Not consuming, either if you are part of a pre-defined “dangerous” category or not, is the real crime in the Mall.
But at the same time, we have seen a slow but dramatic increase in the degree of surveillance and policing by private security in all of our communities. The likeliest scenario for the immediate future is an increase in anti-social behaviour and social unrest in most Western countries and South Africa, spawned largely by a worsening socio-economic order and an increasingly repressive state. Private police will be called upon increasingly to control, patrol and counteract these disruptions to the smooth functioning of the state and the business community. Brutal tactics and violence, like that used in the Tembisa incident, will be resorted to inside and outside South Africa in order to secure this expanded social control.
The danger exists that without a comprehensive regulatory regime to prevent and control abuses and illegalities by the private police, serious violations of civil liberties will occur. Such a scheme, fundamentally rooted in a culture of human rights and combined with a vigilant and informed populace, will be the only way to avoid private policing “by any means necessary.”
Up to a certain point, we would like to locate our intervention in quite a distinctive position with respect to that of other authors,[89] of simply addressing the impact of the dismantling of the Welfare State and the deregulation of state functions. For us, in a contradictory way, the emergence of multiple tiers of governance is not a problematic question.[90] What becomes problematic is whether those different poles of governance can co-exist in a democratic manner.
The re-emergence of private policing controlled by corporate capital suggests to us, via the example of the public mall in South Africa, the consequences of this option — “right of admission reserved”. Not only is the “new” public space culturally defined by the logic of capital accumulation, but also fundamental human rights principles, such as equality of human beings, are distorted and denied.
Our argument then, in opposition to other commentators, is that the dismantling of certain functions of the state or the transferring of these functions to non-state sectors is indeed taking place. However, the state cannot give away all its responsibilities, in particular that of guaranteeing a basic framework of equal respect and treatment for each person, if it is to preside over a culture inspired by human rights. A total denial by the state of this basic responsibility can lead us to the establishment of a culture of unequal citizens, unequal consumers.
The emergence of a culture of unequal citizens, unequal consumers, could lead us to a disastrous future, where the scenario can best be described, to paraphrase an idea by Mike Davis, as the Blade Runnisation of society.[91] A type of society where, in the absence of a clear regulatory state, life becomes cheap and meaningless.
We need to develop a new ideology of equality which recognises the transformations in the state, but which locates certain basic functions within that state in order to preserve a culture of human rights. However, this process will require the re-emergence of a “progressive” civil society which will in a way advocate, once again, basic liberal and radical rights.
Les Johnston poses the situation in quite a challenging way:
If we are to avoid the worst excesses of corporate domination and anarchy — the raw domination of the market — democratic mechanisms need to be developed at the local level. Yet, if we are to avoid the twin pathologies of authoritarianism and inequity, it is necessary to have legal safeguards and to inculcate an appropriate civic culture. Essentially, this means regenerating public debate on governance in civil society, and, once having done so, re-incorporating the debate on policing into the local political arena from which it has been excluded in recent years.[92]
For us, this requires not only avoiding total domination by the anarchy of corporate capital driven exclusively by the desires of market forces, but also preventing the emergence of the equally anarchical forces of retaliation and destruction, unleashed by corporate capital. The opening quotation of this article, from an eyewitness in the Tembisa disaster in South Africa, suggests the possible scenarios that can emerge in an unregulated “new” public space. The aftermath of Tembisa, where popular forms of justice took over the train station after the disaster, and burnt and destroyed it, cannot offer a satisfactory solution to handle the excesses of corporate capital.
Instead, we suggest the re-emergence, to paraphrase Les Johnston, of public debate in the political arena, where the new forms of governance, either state or non-state controlled, can be questioned and become accountable. Where the democratic practices achieved in the past decades, via a welfare state or a traditional state, can be preserved and enhanced in this new emerging era where state police are beginning to share more of their responsibility, on safey and security, with the private security industry.
[1] Academic Manager, Community Peace Foundation, affiliated to the University of the Western Cape, South Africa. At the time of writing this article, Daniel Nina was a Macquarie University Research Grant Visiting Scholar at Macquarie University School of Law.
[2] Lecturer, Macquarie University School of Law, Sydney.
[3] This is the reflection of an eyewitness to the disaster in Tembisa (in the outskirts of Johannesburg, South Africa) where 16 people died as a result of the unregulated use of electric prods as a crowd control mechanism by a security guard company on 31 July 1996. Woodgate S et al, “Community fury follows deaths at station” The Star [Cape Town], 31 July 1996. This is discussed in the second section of this article.
[4] Shearing C and Stenning PC “Private security: implications for social control” (1983) 30(5) Social Problems 493
[5] Habermas elaborates on the culture of human rights as that new metanarrative of “rights” discourse, which supersedes the natural rights or methaphysical rights which existed in the past. For us, in contradictory terms human rights stands for that culture of internationally accepted principles of human co-existence that are widely accepted. See Habermas J Between facts and norms: contributions to a discourse theory on law and democracy (MIT press, Massachusets 1996).
[6] Lehulere O “Social Democracy and Neo-Liberalism in South Africa: A Reply to Eddy Webster” (1996) 7 Links 89.
[7] We are using the term “community” in a quite uncontested way, to represent the new definition of the “social”. For a stimulating analysis of the emergence of the “community” see O’Malley P and Palmer D “Post-keynesian policing” (1996) 25(2) Economy and Society 137.
[8] We argue that in the new “social”, determined by market forces and not necessarily by the state authority, the common denominator is that of consumption. Instead of people being equal citizens, people become unequal consumers. Some people will have a better capacity to consume (buyers) and others will not have the same capacity — creating a reign of unequal access to service. Shearing C “Transformation of governance: the case of community policing” (1994) 37(1) SASH 21.
[9] Gottlied G Nation against state: a new approach to ethnic conflicts and the decline of sovereignty (Council of Foreign Relations Press, New York 1993).
[10] Davis M Beyond Blade Runner: Urban Control. The Ecology of Fear (Open Magazine Pamphlet Series, Westerfield NJ 1992); Johnston L “Policing diversity: the impact of the public-private complex in policing” in Leishman F, Loveday B and Savage S (eds) Core Issues in Policing (Longman, New York 1996) p 69.
[11] Woodgate et al, op cit.
[12] Ibid. Immediately after this incident a commission of enquiry was established to assess what happened and to find who was responsible. At the time of submitting this article for publication the final report was still pending. It is important to note from the above news reports that the use of electric prods is still not regulated in South Africa, and this is the reason why the newspaper had to interview the manufacturer to provide a logical explanation of the electric devise. The state, in post-Apartheid South Africa, does not encourage the use of this electric devise by its security personnel.
[13] Shearing C “The Relations Between Public and Private Policing” in Tonry M and Morris N (eds) Modern Policing (McGraw-Hill, New York, 1992 2nd ed); Shearing C and Stenning PC “Private security: implications for social control” (1983) 30(5) Social Problems 493; Shearing C and Stenning PC “From the Panopticon to Disney World: The Development of Discipline” in Doob AN and Greenspan EL (eds) Perspectives in Criminal Law — Essays in Honour of John Ll.J. Edwards (Canada Law Book, Aurora 1985); Johnston, op cit; O’Malley and Palmer, op cit.
[14] We are using various normative concepts such as “police” and “policing.” In particular we are referring to “police,” to describe the security force regulated and controlled by the state. When we use the term “policing” we are referring to a network of resources (from the state to the private sector, including individuals) which are engaged in providing safety and security. This is discussed later in this article. For a general discussion see Shearing, 1992, op cit; Nina D “Community policing: notes on ‘popular policing:’ Anti- crime committees and marshalls in South Africa” in Ncholo P (ed) Towards Democratic Policing (Community Peace Foundation, Belville, South Africa 1994).
[15] Rose N “The death of the social? Re-figuring the territory of government” (1996) 25(3) Economy and Society 327.
[16] Shearing, 1992, op cit.
[17] O’Malley and Palmer, op cit.
[18] Shearing and Stenning, 1983, op cit.
[19] Ibid at 494.
[20] Gottlied, op cit at 14.
[21] Shearing and Stenning, 1983, op cit at 503. We are using the word “new” in a contested space. Corporate capital has always been behind certain social activities. However, the current debate on privatisation of state assets opens the door to a “new” intervention of corporate capital in vast sectors of the economy. This discussion, however, is outside the scope of this article.
[22] Ibid.
[23] Shearing and Stenning, 1985, op cit.
[24] Shearing and Stenning, 1983, op cit at 345. To what extent is Disney World, for example, a “public” space is a challenging question. It is not “public” in terms of the definition of the realm of institutions, locations and spaces which are controlled by the state. However, in the way in which this corporate domain are nowadays used, in the way in which the contemporary state is retreating and is attempting to control less spaces or institutions, places like Disney World do become the new “public” space — public in a meaning that refers to the world of consumers and privately owned institutions of public entrance.
[25] Nina D “Community justice in a volatile South Africa: containing community conflict, Clermont, Natal” (1993) 20(3/4) Social Justice 129. An interesting argument here is to explore how private policing enhances or modifies the nature of state police. How much of the practices of state police are firstly tested within the confines of private policing? This is the case, for example, of closed circuit cameras, which have been used extensively in the private domain of the corporate world, but which are just beginning to be used — at least in South Africa — by the state police.
[26] What is interesting is that generally the public does not perceive this development of “corporate sovereignty” interacting in the field of governance as a threat. On the contrary, as Shearing argues, the trend in the past few decades has been to provide more space for corporate capital to rule. However, in the particular case of South Africa, as Shearing also suggests, more attention is paid to the excesses of popular forms of governance, than in monitoring what corporate capital is doing:
One consequence of this difference is that much more attention is being paid to responding to the abuses of popular governance than to formal forms of private policing. It is popular governance that is a political concern, not corporate governance (Shearing, 1994, op cit at 23)
[27] It is important to bear in mind, that the modern nation-state embodied a particular notion of sovereignty which is being contested today. Historically the concept of sovereignty was seen as control and exercise of authority over a terrority and its people, and a recognition by the international community to exercise this power (Gottlied, op cit at Chapter 2). Today, we argue, that corporate capital in the new public spaces, has created the possibility of exercising authority and control over consumers, who agree to enter into the private premises owned by corporate capital. This represents for us a major transformation in the contemporary logic of the interaction between state and citizens.
[28] Shearing, 1992, op cit pp 425-426.
[29] Shearing, 1992, op cit; Gottlied, op cit; Guehenno JM The end of the nation state (University of Minessota Press, Minessota 1995).
[30] Russell S “Profits Before Human Needs: The Case Against Private Prisons in Australia” (1996) 2 Imbizo 10 at 12.
[31] Shearing and Stenning, 1983, op cit
[32] Reynolds C and Wilson P “Private Policing: Creating New Options” in Chappell D and Wilson P Australian Policing: Contemporary Issues (Butterworths, Sydney 1996 2nd ed) p 227.
[33] Spitzer S “The Political Economy of Policing” in Greenberg D (ed) Crime and Capitalism: Readings in Marxist Criminology (Temple University Press, Philadelphia 1993 2nd ed); Finane M Police and Government : Histories of Policing in Australia (Oxford University Press, Melbourne 1994) pp 65-70; Petchesky R “At Hard Labor: Penal Confinement and Production in Nineteenth-Century America,” in Greenberg, op cit pp 597-598; Shelden R “Convict Leasing: An Application of the Rusche-Kirchheimer Thesis to Penal Changes in Tennessee, 1830-1915” in Greenberg, op cit pp 617-618; Weiss R “The Emergence and Transformation of Private Detective Industrial Policing in the United States, 1850-1940” (1978) 9 Crime and Social Justice 35; Spitzer S and Scull A “Privatization and Capitalist Development: The Case of the Private Police” (1977) 25(1) Social Problems 18; Humphries D and Greenberg D “The Dialectics of Crime Control” in Greenberg, op cit; Spitzer S and Scull A “Social Control in Historical Perspective: From Private to Public Responses to Crime” in Greenberg D (ed) Corrections and Punishment (Sage, Beverly Hills 1977).
[34] Shearing, 1992, op cit pp 408-409; Johnston, op cit pp 59-60.
[35] Reiss Jr A “Police Organization in the Twentieth Century” in Tonry M and Morris N (eds) Modern Policing (University of Chicago Press, Chicago 1992) p 65; Walker S The Policing of America (McGraw-Hill, New York 1992 2nd ed) p 38.
[36] Johnston, op cit p 60.
[37] Reynolds C and Wilson P “Private Policing: Creating New Options” in Chappell and Wilson, op cit p 219.
[38] Shearing, 1994, op cit.
[39] Shearing C “Policing: Relationships Between Public and Private Forms” in Findlay M and Zvekic V (eds) Alternative Policing Styles: Cross-Cultural Perspectives (Kluwer, Dekenter 1993) pp 203-205.
[40] Spitzer, 1993, op cit pp 570-571.
[41] Johnston, op cit pp 63-65.
[42] Wilson P, Keogh D and Lincoln R “Private policing: the major issues” in Moyle P (ed) Private Prisons and Police: Recent Australian Trends (Pluto, Leichhardt 1994) p 287.
[43] Moore M “Problem-Solving and Community Policing” in Tonry M and Morris N (eds) Modern Policing (University of Chicago Press, Chicago 1992) p 144.
[44] Shearing, 1992, op cit p 406.
[45] Wilson et al, op cit pp 281-282.
[46] Spitzer S “Security and control in capitalist societies: the fetishism of security and the secret” in Lowman J, Menzies R and Palys TS (eds) Transcarceration: Essays in the Sociology of Social Control (Gower, Aldershot 1987) pp 46-47.
[47] McManus M From Fate to Choice: Private Bobbies, Public Beats (Avebury, Aldershot 1995) p 120.
[48] Spitzer, 1987, op cit p 50.
[49] The Reconstruction and Development Programme is the leading visionary pronouncement of the government led by President Nelson Mandela to achieve equality and social transformation in South Africa. The RDP functions as a blue-print document affecting each department of the state.
[50] Fine B “Privatisation and the RDP: A Critical Assessment” (1995) 27 Transformation 1.
[51] Kitchin H “Privatisation without consultation” Legal Action, 8 January 1995; Newburn T and Jones T “The future of traffic policing” (1995) 11(2) Policing 131.
[52] Shearing, 1992, op cit p 423.
[53] Newburn and Jones, op cit at 133.
[54] Ibid at 134. See Home Office, Review of Police Core and Ancillary Tasks:Final Report (HMSO, London, 1995
[55] Ibid at 136.
[56] See Evidence Act 1995 (Cth/NSW).
[57] Shearing, 1993, op cit p 221.
[58] Henry S “The Construction and Deconstruction of Social Control: Thoughts on the Discursive Production of State Law and Private Justice” in Lowman et al, op cit pp 89-90.
[59] Feeley M “The privatization of punishment in historical perspective” in Gormely WT (ed) Privatization and its Alternatives (Oxford University Press, Madison 1991); Cohen S “Social Control and the Politics of Reconstruction” in Nelken D (ed) The Futures of Criminology (Sage, London 1994) p 74.173
[60] South N Policing for Profit : The Private Security Sector (Sage, London 1988) p 151.
[61] Reynolds and Wilson, op cit p 225.
[62] Ibid pp 222-223.
[63] South, op cit p 151.
[64] Shearing C and Stenning PC “Modern Private Security: Its Growth and Implications” in Tonry M and Morris N (eds) Crime and Justice: An Annual Review of Research, Vol. 3 (University of Chicago Press, Chicago 1981) p 229.
[65] Johnston, op cit p 56.
[66] Shearing, 1994, op cit.
[67] See Jones T MacLean B and Young J The Islington crime survey: crime, victimization and policing in inner city London (Gower Publishing, London 1986).
[68] McManus, op cit p 6.
[69] Walker WE et al The Impact of Proposition 13 on Local Criminal Justice Agencies: Emerging Patterns (A Rand Note, prepared for the National Institute of Justice, US Department of Justice 1980).
[70] McManus, op cit p 125.
[71] Wilson et al, op cit pp 292-293.
[72] Reynolds and Wilson, op cit p 220.
[73] Walker, op cit p 52.
[74] R v Ryan [1890] NSWLawRp 45; (1890) 11 LR (NSW) 171. Many jurisdictions have now placed these common law rights on a statutory footing. For example, see Crimes Act 1914 (Cth), s 3Z.
[75] McManus, op cit p 95.
[76] Reynolds and Wilson, op cit p 226.
[77] Tonry M and Morris N (eds) Modern Policing (University of Chicago Press, Chicago 1992) p 62.
[78] McManus, op cit p 96.
[79] Spitzer, 1993, op cit p 576.
[80] Wilson et al, op cit p 289.
[81] Allardyce J “Threat to publish red light pictures pays off” The Scotsman [Edinburgh], 20 August 1996.
[82] This research was conducted in December 1994. To protect the confidentiality of the private security company and its personnel, it was agreed not to disclose the name of the company, the names of the employees and the name of the shopping mall. The manager of the security company in the shopping mall, the director of training, and eight of the security officers were interviewed during the research. We thank Corian de Villiers, then a law student at the University of Cape Town, for her research assistance.
[83] The private security company has been hired by the owners of the building, the managers, to provide policing services in the premises. The security company is only accountable to the managers, who are then accountable to the tenants — the owners of the shops. In the parlance of the security company, the correct name for addressing them is that of security officers. The private security company is regulated by the Security Officers Act 1987 (South Africa).
[84] Constitution of the Republic of South Africa, Act 108 of 1996, s 9.1.
[85] Interview, 8 December 1994.
[86] Interview, 14 December 1994. One can have a different interpretation about these categories of people, by suggesting that what is involved is a corporate construction of an excluded other who is not a good/ideal consumer.
[87] Interview, 8 December 1994.
[88] Interview, 8 December 1994.
[89] Rose, op cit; O’Malley and Palmer, op cit; Johnston, op cit.
[90] Nina D Re-Thinking Popular Justice (Community Peace Foundation, Cape Town 1995); Shearing, 1992, op cit.
[91] Davis, op cit.
[92] Johnston, op cit p 69.
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