A missed opportunity: President Ramaphosa signs IPID Amendment Bill into law
On 26 May 2020, President Cyril Ramaphosa assented to and signed the Independent Police Investigative Directorate Amendment Bill into law. The legislation still falls short of previous High Court and Constitutional Court judgments.
The Independent Police Investigative Directorate Amendment Bill, signed by the president, merely affirms, through legislation, what the Constitutional Court in 2016 directed.
While this is a small step to granting a higher degree of independence from political interference to the Independent Police Investigative Directorate (IPID), it falls abysmally short of both the High Court and Constitutional Court judgments.
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.
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 (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.
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 and Helen Suzman Foundation which concerned the independence of the Directorate for Priority Crime Investigation (DPCI or “the Hawks”).
In the McBride case, 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.
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 Portfolio Committee on Police (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-in 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”.
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 Services (SAPS).
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.
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
When the unanimous judgment was delivered by the late acting judge Bosielo, 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 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 advisers, 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.
On 22 May 2020, the committee on police gave the Minister of Police Bheki Cele three months in which to appoint the new executive director of IPID.
This comes amid movements by the Democratic Alliance that it will present a Private Member’s 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 in 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 of Appeal. DM
Kimera Chetty is Legal Researcher, Helen Suzman Foundation.