SA new police watchdog bill risks seriously weakening rule of law 

A new bill before Parliament proposing amendments to the Independent Police Investigative Directorate (Ipid) Act raises the contentious question of leadership and accountability in South Africa’s criminal justice institutions.

Ipid investigates specified categories of crime committed by members of the South African Police Service (SAPS) and municipal police. Due to low levels of public trust in the police, Ipid plays a critical role in criminal justice proceedings by ensuring that investigations against the police are carried out effectively.

But the bill is unlikely to build trust. It proposes weakening the provisions for appointing the Ipid executive director, by excluding Parliament and centralising control over the process in the hands of the police minister and Cabinet. This would increase Ipid’s vulnerability to political interference and manipulation. Paradoxically, the bill follows a 2019 amendment to the Ipid Act that strengthened the watchdog’s independence by preventing the arbitrary removal of the Ipid head.

In the wake of widespread corruption and state capture in South Africa, it’s clear that the independence of criminal justice institutions is vital. A joint submission by Corruption Watch and the Institute for Security Studies (ISS) to the Zondo inquiry showed how State Capture under Jacob Zuma’s presidency was facilitated by interference with criminal justice institution leaders. This included heads of the SAPS and its crime intelligence division, the Directorate for Priority Crime Investigation (Hawks), the National Prosecuting Authority (NPA), and Ipid. 

Read more in Daily Maverick: State Capture wipes out third of SA’s R4.9-trillion GDP – never mind lost trust, confidence, opportunity

Preference was given to leaders who were likely to be compliant. Those who stood in the way of state capture by pursuing investigations or prosecutions against Zuma or his co-conspirators were targeted for removal. This contributed to the hollowing out of state institutions that enabled corruption to flourish.

The 2015 attempt to remove Ipid executive director Robert McBride formed part of a web of manipulation of criminal justice and state security organs under Zuma. After an Ipid investigation rejected police crime intelligence allegations used to justify the suspension of senior Hawks leaders, McBride was suspended by then police minister Nathi Nhleko. 

Through legal action, McBride successfully contested the attempt to remove him. This resulted in Ipid Act provisions regarding removing the Ipid head being ruled unconstitutional in 2016. The 2019 Ipid Act amendment was passed to address the defects highlighted by the Constitutional Court in this judgment.

The Hawks are supposed to be South Africa’s leading agency for investigating corruption and organised crime. It was the Ipid head who shielded Hawks investigators from being spuriously targeted by the executive and police crime intelligence division. The integrity and calibre of Ipid leadership was critical in defending the independence of a key criminal justice agency. 

The Corruption Watch and ISS submission highlights that during the Zuma era, manipulation of the criminal justice system “was pursued at the expense of the criminal justice system and thus of the safety and security of South Africans.” The destructive effects of this manipulation continue as levels of murder and organised crime soar in the country. 

The new Ipid bill proposes that the police minister appoint the head of Ipid with the approval of the Cabinet. Rather than improving the integrity of the process, this makes selection of the executive director vulnerable to manipulation and power dynamics within the executive. Police ministers may also not necessarily exercise appropriate diligence in selecting appointees and may be influenced by personal agendas. 

The relevant clauses of the Ipid bill mimic current SAPS Act provisions dealing with appointing the Hawks head. But this is far from reassuring. Even though the Hawks are South Africa’s principal anti-corruption investigation agency, the act authorises the police minister to appoint not only the Hawks boss, but its entire top leadership. This includes its deputy head and all provincial heads. 

A transparent and consistent approach must be developed for future appointments to vital positions in the criminal justice system. A complicating factor is that the country’s constitution authorises the president to unilaterally appoint the National Director of Public Prosecutions and the SAPS national commissioner. This didn’t, however, prevent President Cyril Ramaphosa from establishing a panel in 2018 to recommend candidates for National Director of Public Prosecutions. 

But rather than being advised by an independent panel, Police Minister Bheki Cele headed up the March 2022 interview process to recommend a new SAPS national commissioner. This is despite the government’s 2012 National Development Plan recommending that the president appoint the national commissioner on the advice of a formally established selection panel. 

The provisions for appointing the executive director in the new Ipid bill are unsatisfactory. The issue highlights a problem that affects the whole criminal justice system and should no longer be dealt with ad hoc. Instead, cross-cutting legislation is needed that provides for a standing panel to interview and recommend senior appointments in the criminal justice system.

South Africa’s economic decline is intertwined with the stranglehold of corruption and criminal networks in the country. To establish a successful democracy that provides a reasonable standard of living to its citizens, effective rule-of-law institutions must be developed.

Rather than the Ipid bill currently before Parliament, bolder, more forward-looking legislation is required to ensure that independent and capable leaders are selected to run the country’s criminal justice agencies. DM

David Bruce, Independent Researcher and Consultant, Institute for Security Studies (ISS) Pretoria.

Research for this article was funded by the Hanns Seidel Foundation and the Bavarian State Chancellery.

First published by ISS Today.