Parliament missed a trick in changes to law on police watchdog Ipid
The amendment bill is still unclear on procedures to remove — and appoint — an executive director of the Independent Police Investigative Directorate, writes Chumile Sali
Police Minister Bheki Cele asked Parliament in July to investigate Robert McBride, the executive director of police watchdog Ipid, for unethical conduct.
Cele was correct to refer the matter to Parliament, in line with the 2016 Constitutional Court decision in McBride v Minister of Police and Minister of Public Administration.
In his letter to the speaker of Parliament, dated July 6, Cele states: "The committee of the National Assembly is the body empowered to handle and make the relevant determination."
The Constitutional Court in the McBride case confirmed the operational, structural and institutional independence of the Independent Police Investigative Directorate (Ipid).
Cele should be commended for directing his complaint to the speaker of Parliament. He correctly expects Parliament to investigate the alleged misconduct of the executive director.
Recent events have demonstrated how vital Ipid’s independence is, specifically in its efforts to combat high-level systemic corruption
But, while the police minister appreciates the Constitutional Court decision in its totality, Parliament’s portfolio committee on police has narrowly interpreted the decision.
The committee initiated a parliamentary process to amend the sections identified as problematic — sections 6(3) & 6(6) — and inserted a new section relating to the removal of the director.
On July 4 the committee adopted the amendments to the Ipid Act and the matter has now been referred to the National Council of Provinces.
Section 6A of the proposed amendments provides that:
1. The Ipid executive director may be removed from office on the ground of misconduct, incapacity or incompetency on a finding to that effect by a committee of the National Assembly; and on the adoption by the National Assembly of a resolution calling for that person’s removal from office.
2. The National Assembly may adopt such a resolution with a supporting vote of at least two-thirds of its members.
The amendment to the Ipid Act is unclear on the process a National Assembly committee should followed in considering such action. It is unclear whether the executive director can call witnesses, cross-examine witnesses and provision for representation.
Parliament’s role in a disciplinary process against the Ipid executive director remains unclear. The minister has asked Parliament to conduct the investigation, but Parliament’s role is simply to affirm or decline the recommendation of the police Minister, assuming an investigation has been carried out and the facts established.
The amendments to the Ipid Act proposed by the Portfolio Committee provide no guidance to ensure procedural fairness in removing the executive director.
In its submission to the portfolio committee on police during the public hearings on the amendment bill, the African Policing Civilian Oversight Forum reflected on three essential conditions of independence identified in earlier Constitutional Court decisions: security of tenure, institutional independence, and financial independence and security.
In addition, several public submissions argued that further detail is required about the process for removing the executive director. At a minimum this includes provisions regarding complaints against the executive director being made in writing to the speaker of the National Assembly, with a committee constituted within 30 days to deal with the complaint and matters relating to it, and rules of procedure to ensure a procedurally fair administrative action.
In the event of such an inquiry, the executive director should have access to legal representation, and be permitted to give evidence, call witnesses, and access documentation relevant to the inquiry.
Where there is an intention to suspend or dismiss the executive director, the committee must give reasons.
With regard to this, and possibly the first test of the new dispensation, the speaker of Parliament is left with a written complaint against the Ipid executive director but no clarity, not even from the portfolio committee, on how this matter is to be handled.
Parliament is likely to meet on September 6, the Constitutional Court deadline to cure the defects in the Ipid Act.
While the efforts of the portfolio committee on police narrowly satisfied the Constitutional Court’s ruling, it missed an opportunity to comprehensively apply its mind to and amend the Ipid Act to ensure it is functionally, structurally and operationally independent, as demanded by the Constitutional Court.
Recent events have demonstrated how vital Ipid’s independence is, specifically in its efforts to combat high-level systemic corruption.
While we are mindful of the perceptions of interference in the removal of the Ipid executive director in the face of one of the most important investigations against police corruption of the democratic era, we are also forewarned of a similar lack of a framework to appoint someone to the role.
McBride’s term is set to expire in nine months, and the appointment of his successor is likely to be as mired in controversy if legislation does not provide for a clear, transparent, fair, and competitive process.
For South Africans still reeling from exposure to the audacity and enormity of state capture, it is only this type of legislative guidance that can begin to restore confidence in our institutions.
• Sali is a Project Officer at the African Policing Civilian Oversight Forum.