A Missed Opportunity: President Ramaphosa Signs The IPID Amendment Bill Into Law

Background

The Independent Police Investigative Directorate (IPID) is South Africa’s police watchdog. Mandated by the IPID Act, IPID is tasked with investigating criminal misconduct and offences committed by members of the South African Police Service (SAPS). On 26 May 2020, President Cyril Ramaphosa assented to and signed the IPID Amendment Bill (the Bill) into law. The Bill has its genesis in the Order handed down by the Constitutional Court in the matter of McBride v Minister of Police and Another[1] (McBride) in 2016. That case dealt with powers granted in law to the Minister of Police, then Nathi Nhleko, to suspend, discipline and remove the Executive Director of IPID, at the time Robert McBride. The Helen Suzman Foundation (HSF) was amicus in both the High Court and Constitutional Court, and made submissions in support of the need for greater independence of IPID.

In finding in favour of McBride, both the High Court and Constitutional Court judgments relied significantly on the reasoning in the cases of Glenister II[2]and Helen Suzman Foundation[3] which concerned the independence of the Directorate for Priority Crime Investigation (DPCI or “the Hawks”). In McBride, the Constitutional Court affirmed that the independence of IPID was not a nice-to-have. In terms of S206(6) of the Constitution, it was a constitutional requirement. The late Acting judge Bosielo, in a unanimous judgment, supported the position that because of this constitutional entrenchment, the threshold for satisfying what independence means for IPID should be even more stringent than the DPCI.

The Order of the Constitutional Court in McBride held that certain provisions of the IPID Act were unconstitutional insofar as they allowed the Minister of Police to suspend, discipline and remove the Executive Director. The Court found that suspension, disciplinary and removal processes should be subject to parliamentary oversight and not unilateral executive decision-making. The Order gave Parliament 24 months (from 6 September 2016) to “cure the defects” in the Act.

What is adequate independence?

Both the High Court and Constitutional Court judgments traverse the different and important ways in which IPID must be empowered to retain and strengthen its independence.

The judgments affirm that both actual and perceived independence is important. Public confidence in IPID to do its work impartially is necessary to legitimise IPID’s independence and to allow for a more effective IPID. Political accountability is also distinct from political interference, and while the Court accepted that the Executive Director is required to report to the Minister of Police on the activities of IPID, this is not the same as any other public servant falling under executive authority. It is crucial that IPID retain its separateness from SAPS, and must therefore retain a strong degree of institutional and functional independence in order to not be politically controlled by the Minister. Important considerations by the Court regarding structural and operational independence highlighted that improving the method of appointment, the method of reporting, disciplinary proceedings and method of removal of the Executive Director from office, and security of tenure are ways in which IPID can be further insulated from undue political interference.

The appointment procedure of the Executive Director is uniquely significant as the Executive Director is responsible not only for accounting for the activities of IPID, but, also for selecting the provincial heads, as well as making referrals to the National Prosecuting Authority to take up matters of criminal prosecution concerning the police. It follows then that whoever is appointed as the Executive Director needs to be as independent as the organisation, and it matters how they are appointed.

The amended Act: a political step in the right direction

The Bill signed by the President merely affirms, through legislation, what the Constitutional Court in 2016 directed. When the unanimous judgment was delivered, it suspended the decisions taken by the then Minister, empowered Parliament to move should it have wished to exercise parliamentary oversight over a suspension, disciplinary, and removal process, and gave its instruction that the IPID Act be remedied within 24 months from the Order being granted.

It is noteworthy that the first iteration of the Bill was only introduced in Parliament by the Portfolio Committee on Police (the Committee) on 1 March 2018, with the public consultation process beginning on 1 June 2018. There have been many excuses offered for such severe delays in processing the Bill, but most disheartening was the disingenuous public participation process which accompanied the Bill. Despite receiving public submissions, conducting public hearings, and having the benefit of Constitutional Court jurisprudence on the question of adequate independence, the Portfolio and Select Committees, under advice from parliamentary legal advisors, opted for an incredibly narrow approach to amending the IPID Act. The Bill deals only with shifting the power from the Minister to parliament to conduct suspension, disciplinary and removal proceedings of the Executive Director.

While this is a small step to granting a higher degree of independence from political interference to IPID, it falls abysmally short of both the High Court and Constitutional Court judgments. On 22 May 2020, the Committee on Police gave the Minister of Police, Bheki Cele, 3 months in which to appoint the new Executive Director of IPID. This comes amidst movements by the Democratic Alliance that it will be presenting a Private Members Bill seeking to limit the Minister’s appointment powers, and have the appointment subject to an independent panel shortlisting process. There is also the matter of litigation being brought by the HSF against the Minister of Police and the Committee concerning the question of renewable terms of the Executive Director, which is currently before the Supreme Court of Appeal.

Conclusion

These developments highlight the complex and unresolved difficulties a deficient IPID Act presents for the independence of the organisation. The HSF considers this a missed opportunity by both Parliament and the President to do better. In terms of S84 of the Constitution, the President cannot refuse to sign a Bill but must, after applying his or her mind (which can include receiving submissions and engaging in consultation) refer it back to the National Assembly for reconsideration, or refer it to the Constitutional Court for consideration if the President is not satisfied as to the constitutionality of the Bill. Given the weight of the Constitutional Court judgment, the President should have applied his mind more carefully to the Court’s guidance on questions of adequate independence. The explanation from the Committee that the Bill needed to be signed because of the Constitutional Court deadline is farcical as;

• the Bill, as of the expiry of the 24-month period was already in a nearly 2-year default of that timeline by the time of signature, and
• the effect of the Order was that its relief was to be read into the Act regardless of when the Bill was ultimately passed.

The Committee chairperson, has, however, indicated in a press statement that the Department is free to bring a full amendment of the IPID Act “for its consideration at a later stage”. We will be watching closely to see how the Committee works together with IPID in engaging in a full review of the IPID Act in order to create a more independent IPID. With allegations of rampant police abuse, brutality and corruption, especially under lockdown, South Africa deserves more from its public representatives in working tirelessly to restore public confidence in the institutional independence of IPID.

Kimera Chetty
Legal Researcher