‘Appointment of new IPID director not the end, but the beginning of another struggle’

On Thursday 30 July 2020, the Helen Suzman Foundation hosted a webinar to discuss the accountability and independence of the Independent Police Investigations Directorate (IPID).

The discussants were Themba Masuku from the African Policing Civilian Oversight Forum, Kimera Chetty from the Helen Suzman Foundation and Kavisha Pillay from Corruption Watch .

In leading the discussion Masuku located the importance of IPID against the background of South Africa’s history of police brutality during apartheid that necessitated the “never, and never again mantra” from Nelson Mandela’s presidential inauguration speech. Its necessity was born of the need to safeguard human rights and it still speaks to the need to strengthen state institutions.

Masuku said that it was critical that police institutions had mechanisms to deal with complaints outside of bodies like the South African Human Rights Commission.

The South African interim Constitution was clear with regards to the need to provide for an independent oversight body for the police. He referenced two constitutional court judgments that helped to clarify what this would be like: the 2008 Glenister judgment where the court emphasised the need for an autonomous oversight body over the conduct of the police, and the McBride judgment in 2011 where the judgment spoke to the need to strengthen IPID’s independence and transparency as it carried out its functions.

Masuku pointed out, however, that IPID as it stood had shortcomings because it was accountable to the police minister, a political head. “In my view it’s constraining because the minister can give policy instruction which might not link to the mandate of IPID.” The appointment of the executive director of IPID was done by the minister and therefore open to potential political manipulation, he said.

One of the key shortcomings he identified as particularly concerning was that IPID lacked the capability to perform key functions like forensic investigation, and relied on SAPS to perform this task, which again impacted its independence. Budget for IPID was also motivated by the minister, which could constrain independence in terms of the allocated amount used to investigate the police because they were not in a position to access private services.

He gave the example of the investigation into the conduct of police during the Marikana massacre on 16 August 2012, which has stalled because sufficient budget was not provided for.

Pervasive issues of violence and brutality in South Africa made a compelling case to have an institution to investigate SAPS conduct. The advent of the Covid-19 lockdown revealed the institutionalised brutality of the policing system.

Masuku therefore motivated strongly for IPID to be taken to another department within the justice cluster in order to maintain its independence.

Kimera Chetty of the Helen Suzman Foundation felt that the IPID Act needed to be studied carefully in order to determine its potential for political interference.

IPID’s operational independence needed to  be examined as well, because if this was not in place it would impede the effective functioning of the organisation.

Chetty said an important question we needed to ask was how far IPID had gone in establishing its independence since 2015 and what the barriers had been to it doing more in this regard. It is necessary to ask why the battles for its independence and transparency had been fought in court when there were parliamentary committees whose job it was to make amendments to the act.

Since its inception the organisation had been experiencing instability, with executive directors coming and going and parliamentary committees failing to demand accountability.

Chetty said that the police minister did not seem invested in following due process, and that there was a disregard for the apex court’s jurisprudence on meaning of “independence”.

The foundation had shown that a problem with the IPID Act was that it doesn’t point to a specific decision maker regarding the appointment of a director. When former executive director Robert McBride’s contract ended, the minister moved to appoint someone else. The foundation was of the opinion that the minister did not have authority to do this.

“Where the act doesn’t give guidance on action you cannot create your own process,” Chetty said. The act only allowed the minister to nominate a candidate, but even that did not go into detail, which was problematic.

“If you have a faulty act you have faulty processes,” said Chetty. “We cannot trust IPID to be able to hold the SAPS accountable if it is impeded by its own processes.”

She pointed out that we were in a unique global moment around policing and continuous law enforcement because of lockdown, and this was fertile ground for abuse of power. What we need to demand is a review of the act as we go forward and urge everyone to raise these questions once it was brought to the public again for comment.

Corruption Watch’s Pillay said: “What’s clearly evident is that South Africa has a policing crisis” and that there was a public perception of SAPS as being corrupt.

She said it was the view of Corruption Watch that political influence had crippled the body. There needed to be more clarity over what was required for someone to lead IPID and not just a statement of “a suitable candidate”, as stated in the act. The consequence of not having this detail could lead to a compromised candidate being appointed.

Pillay said Corruption Watch also took issue with Members of Parliament who seemed to do the bare minimum and merely tick boxes during the consultative process of appointments. Over the years Corruption Watch had noted that MPs were guided by party line and not public interest when making decisions, resulting in a systemic flaw in parliamentary appointments.

Of concern in this regard was that MPs faced no consequences for not making appointments properly, thus playing a major role in the destabilising of oversight institutes and agencies. Corruption Watch had tried to introduce basic principles of fairness and accountability by writing to the parliamentary committees and ministers, to no avail.

She said that following McBride’s departure Corruption Watch continued unsuccessfully to try and engage the minister and portfolio committees regarding fair and transparent processes, citing the Nugent commission findings.

Pillay said that they advised setting up a panel of independent experts, similar to what was contained in the National Development Plan, regarding appointing the national police commissioner, which would advertise and develop criteria for a suitable candidate. She also pointed out that the minister faced no accountability for acting outside of the one-year period – which was outside of the law – and that Corruption Watch was still waiting to hear whether this new appointment was indeed legal.

Corruption Watch had also mentioned that some of the points used to disqualify some candidates applying for the IPID executive director position were not applied consistently. For example, candidates who did not have investigative experience had been disqualified – whereas the newly appointed IPID head, Jennifer Dikeledi Ntlatseng, did not have investigating experience either.

Corruption Watch therefore recommended that there be a review of the legislation, appointments of multi-stakeholder bodies to oversee the appointment and fair testing of candidates, as well as public participation. “We’re in big trouble at the moment because we don’t have a functional police oversight body,” said Pillay.

In closing, Chetty said that civil society and individuals needed to regard the appointment of the IPID director not as the end of the process but as the beginning of another struggle.

Pillay felt that it needed to be remembered that it was previously IPID and the office of the Public Protector that had pursued high-profile cases in the interests of the public without fear or favour, and that it was very concerning that these organisations had now been destabilised. She attributed this to “largely biased and unchecked parliamentary processes”.  DM/MC

The 2016 McBride v Minister of Police Constitutional Court decision affirmed the independence of the Independent Police Investigative Directorate.  The African Policing Civilian Oversight Forum and the Helen Suzman Foundation were among several organisations advocating the amendment of the IPID Act to take in the broader understanding of independence, which includes not only security of tenure, but also of appointment and institutional and financial independence.

On 15 July 2020, the Portfolio Committee on Police confirmed the minister’s nominee as the executive director, in a process that arguably provided the committee with little opportunity but to rubber-stamp the appointment. Simultaneously, the committee acknowledged the inherent weakness of the IPID Act and promised a complete overhaul by 2021.

*This piece was amended post publication to correct a misquote.