Baffling case of the unconstitutional Ipid Bill going ahead despite fatal flaws

13 Sep 2023

Why did the Civilian Secretariat of Police Services, the drafters, deem it appropriate to send a bill to Cabinet that hadn’t been certified by the state law advisers? The secretariat had already been forewarned that the bill was unconstitutional.

On 6 September 2023, Parliament’s Portfolio Committee on Police took the unprecedented decision to accept an uncertified bill in Parliament.

The Independent Police Investigative Directorate Amendment Bill, deemed unconstitutional by both the Office of the Chief State Law Adviser and private legal opinion secured by the minister of police, was accepted into the parliamentary law-making process.

The unconstitutionality of the bill hinges on realising the intention of the minister of police to have unilateral and unchecked power to appoint the executive director of the Independent Police Investigative Directorate (Ipid).

Read more in Daily Maverick: SA new police watchdog bill risks seriously weakening rule of law

The Constitutional Court has previously said the unfettered power of the minister to dismiss the Ipid executive director is unconstitutional. Legal opinion confirms that the same can be said for unfettered powers to appoint.

This raises several questions.

Why did the Civilian Secretariat of Police Services (the secretariat), the drafters, deem it appropriate to send a bill to Cabinet that hadn’t been certified by the state law advisers? The secretariat had already been forewarned that the bill was unconstitutional.

Several public submissions, solicited in the secretariat’s own process of consultation, had alerted them to the problem. Why did Cabinet accept and submit an unconstitutional and uncertified piece of draft legislation to Parliament?

Why did the minister of police distrust the state law adviser and seek a costly external legal opinion that only confirmed the issues?

Furthermore, a serious question hangs over the actions of the committee itself and its oversight responsibility. Instead of deeming the bill undesirable, it agreed to accept it and is now in the invidious position of having to publish an unconstitutional bill for public comment.

In June 2023, Chief Justice Raymond Zondo drew the ire of Parliament by saying that it would be incapable of preventing another instance of State Capture.

During the hearings, the Zondo Commission had heard that the manipulation of criminal justice agencies by the executive, under the administration of former president Jacob Zuma, was a critical factor in entrenching State Capture.

This echoes in recent research on State Capture by the United States Institute of Peace. Among the means of achieving State Capture is through a process of embedding persons and networks into key entities for purposes including political immunisation and wealth accumulation. The consequences generally lead to increasing ineffectiveness of the state and a reduction of trust in the democratic process.

Hallmarks of State Capture

The passage of the Ipid Bill through Cabinet to the committee has all the optics of State Capture – absconding the independence and oversight over the executive by Parliament and undermining the integrity and independence of Ipid by acting contrary to a ruling by the highest court in South Africa.

Independent police oversight is crucial to the good governance of police.

The mechanisms like Ipid that emerged in South Africa after apartheid are a key element in the transformation of the South African Police Service (SAPS).

The need for this was foreseen by the drafters of our Constitution and they explicitly made provision for an independent police complaints body. Not only are independent investigations a substantive requirement of international law in response to, for example, allegations of torture and extrajudicial killing, but they play an important role in building trust and legitimacy, demonstrating consequences for criminality and misconduct.

The independence of these mechanisms is a key benchmark to their success.

In 2016 the Constitutional Court, in McBride v Minister of Police and Another, pronounced on the unconstitutionality of the then act in that it allowed the minister of police to unilaterally terminate the contract of the Ipid executive director, essentially undermining both the structural and operational independence of Ipid.

Parliament was ordered to rectify the problem, which it did in the Independent Police Investigative Directorate Amendment Act, 2019 (Act No. 27 of 2019). At that point, Parliament further committed itself to review the entire act and strengthen Ipid. The new draft bill does the opposite. It removes all vestige of Parliament’s role in the appointment.

To add insult to injury, the bill also fails to address a raft of other measures which have long been identified as critical to empowering Ipid.

In the truncated period remaining for the current Parliament, the committee must decide how it will approach strengthening Ipid. It can simply speak to the few clauses provided in the severely compromised version received from Cabinet.

If it is bold, it might be able to use the opportunity to open up many issues that need to be addressed to make Ipid more effective.

This includes increasing the sanction for non-compliance with mandatory reporting by SAPS to Ipid; tightening the process required for SAPS to seriously engage Ipid recommendations for disciplinary sanction, and expanding the mandate to include attempted murder by a police officer rather than remove the opportunity to receive complaints on the discharge of firearms by SAPS members, as the current bill proposes.

Also, an important issue that the secretariat, in its negligence, failed to consider was the expansion in the bill of Ipid’s mandate for preventive monitoring of police custody.

South Africa has ratified the Optional Protocol to the Convention against Torture and invited Ipid in as a member of the National Preventive Mechanism, which has a mandate to visit places of detention to prevent torture and other ill-treatment. This will require Ipid to perform preventive monitoring functions, and an amendment of the act is required to do this.

The voting pattern of the committee was clear, with all ANC MPs voting in favour of the bill and the opposition against it. One can speculate as to the reasoning behind this and it does not escape one’s mind that the ruling party is in the process of drawing up candidate lists for the 2024 elections.

A cleaner process would have been to send the bill back to the secretariat to rectify. By doing the opposite, the committee has placed itself in a difficult position of forever being seen as biased in favour of the executive.

When it comes to eventually adopting the bill, this will remain an Achilles’ heel in the credibility of the process, the law and Ipid.

Likewise, the credibility of the secretariat in law-making is forever tarnished as this debacle adds to the many other important pieces of legislation it has failed to progress, including the very important SAPS Amendment Act. DM

Sean Tait is director of the African Policing Civilian Oversight Forum (APCOF).

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Hallmarks of State Capture