Civilian Secretariat for Police Service Bill & Independent Police Investigative Directorate Bill: Minister, Police Secretariat and Independent Complaints Directorate briefings

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02 August 2010
Chairperson: Ms L Chikunga (ANC)
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Meeting Summary

The Minister of Police and Head of the Police Secretariat briefed the Portfolio Committee on the Civilian Secretariat for Police Bill. This was intended to provide for the establishment of a Secretariat that would give strategic advice to the Minister on developing and implementing policy, and the Secretariat, would exercise civilian oversight over the police, monitor the conduct of police members and recommend corrective measures. The Bill provided for setting up provincial Secretariats to support the national Secretariat. The current Police Secretariat operated as a cost centre in the Department of Police, which had cast doubts on its independence, and the new Bill would establish the Secretariat under the direct authority of the Minister, clearly define the functions, objects and powers of the Secretariat, align operations of the provincial bodies, provide for cooperation with the Independent Complaints Directorate (ICD), legislate for the Ministerial Executive Committee, and provide for transitional arrangements. Members asked for clarity on the provincial Secretariats, and the powers of the Minister to intervene in a province should the provincial Secretariat collapse. They asked how many new jobs were likely to be created, whether the new Ministerial Executive Committee would differ from the current MinMEC, and whether the problems of Members of Executive Committees holding, but failing to equally address two portfolios, would be remedied by this Bill. Members also asked for an explanation of the policy and strategy of the Secretariat, sought confirmation whether this was a Section 76 Bill, and asked how the Secretariat would seek to change the attitude of police officials to recommendations from the ICD, and involve the community.

The Independent Complaints Directorate (ICD) briefed the Committee on the Independent Police Investigative Directorate Bill (IPID Bill), which aimed to re-name the ICD as the IPID, and enhance its current role so that the new body would be better able to perform its functions and meet its mandate. Currently, the ICD had investigative powers in respect of misconduct or offences allegedly committed by a member of the South African Police Service (SAPS) and Municipal Police Services (MPS), as well as the power to investigate deaths in police custody or as a result of police action, and any matter referred by the Minister or a Member of the Executive Council. Concerns about the ICD’s current structure, reporting and accountability procedures included its inability to ensure that its recommendations were implemented, and concerns around capacity. The Bill envisaged the establishment of a management committee and consultative forum to support the new structure, provided for appointment and powers of investigators, publication of regulations on operating procedures, and would repeal provisions that were outdated. The new structure would be aligned with the Constitution and Public Finance Management Act. The national and provincial co-operation, reporting functions, financial accountability and what cases were to be investigated were clearly set out. Investigation of lesser cases would take place at station commander level. The new IPID was to focus on investigation rather than merely receive complaints, and would be completely independent of SAPS, reporting directly to the Cabinet Minister responsible for policing.

Members questioned why the first Bill referred to “the Minister of Police” and the second to “a Cabinet Member responsible for Policing” and asked that the legislation be consistent. They questioned the new powers of investigation, commented that the use of the words “may investigate”, in relation to matters referred by the Minister, were too vague, and asked if the new body would have sufficient capacity. Members were worried that there might be duplication of roles across the two new bodies, questioned whether salaries should, firstly, be included in the Bill and secondly should be pegged at the SAPS detective levels, and enquired about investigators having policing powers. Members wondered if the “lack of teeth” that had plagued ICD in the past would be corrected in the new body, called for the financial implications of implementing the Bill, so that the Committee could assess how practical it might be, and commented that ICD was not visible enough, especially in rural areas. Members asked how the monitoring and implementation of recommendations had happened in the past, and how it would work in future, and called for the numbers of recommendations that had resulted in criminal prosecutions, and how many prosecutions resulted in convictions. A Member noted that she was not entirely happy with the procedure for appointing and removing the Executive Director. Members asked for clarity on who would investigate offences allegedly committed by police officers, and sought assurance that the process was independent. Members asked the State Law Advisors to consider whether the name change would reflect the Constitutional mandate, and asked what role Parliament would have to play in the new body.

Meeting report

Civilian Secretariat for Police Service Bill: Minister and Ministry of Police Briefing
Hon Nathi Mthethwa, Minister of Police, briefed the Portfolio Committee on the Civilian Secretariat for Police Service Bill (the Bill). This Bill was initiated in terms of Section 208 of the Constitution, which envisaged the creation of the Civilian Secretariat for Police (the Secretariat). The Secretariat would give strategic advice to the Minister in respect of developing and implementing policies. In exercising civilian oversight over the police service, the Secretariat would monitor the conduct of members and where necessary, recommend corrective measures. The Bill would make provision for the constitution of the provincial Secretariats, which would give various kinds of support to the national Secretariat. The Minister stressed that it was important to be sensitive to the lives and conditions of service of police officers, but said that it was equally important to ensure that the conduct of officers never went unchecked, to avoid the country taking a slide back to a police state.

Ms Jenny Irish-Qhobosheane, Head, Police Secretariat, said the Police Civilian Secretariat needed to be capacitated and empowered in order to provide the Minister with policy advice, to monitor and audit the police, to provide support services to the Minister and to mobilise role-players, stakeholders and partners in ensuring that the police did their work within the confines of the law. In order for the Secretariat to do its work properly, there was a need for institutional reform, first and foremost by ensuring the independence of the Secretariat. At present, the fact that the Secretariat operated as a cost centre within the Department of Police /South African Police Service (SAPS) raised issues around its independence from the operational arm of the department. The fact that the head of SAPS, and accounting officer for the police was also the accounting officer for the Secretariat further compromised the independence of the Secretariat.

She noted some of the key aspects covered by the Bill. These included the establishment of the Civilian Secretariat for Police as a structure falling directly under the authority of the Minister. The Bill set out clearly defined functions, objects and powers of the Secretariat, and described the way the operations of the national Secretariat and provincial Secretariats should be aligned. It provided for co-operation between the Secretariat and the Independent Complaints Directorate (ICD). It also provided for the establishment of the Ministerial Executive Committee, as contemplated in the South African Constitution. The Bill would also provide for transitional arrangements to allow for smooth transformation of the current Secretariat into the new Civilian Secretariat for Police, as also making provision for the provinces to align their structures and functions. 

Ms D Schafer (DA) asked the Police Secretariat representatives to explain what was meant by the point in the presentation that suggested that the Bill would, among other things, seek to align the operations of the Secretariat in the national and provincial spheres of government, and re-organise the Secretariat into an effective organ of State.

Irish-Qhobosheane replied that the Bill provided for the establishment of Civilian Secretariat offices at provincial level, and that the operations of all offices must be properly co-ordinated to ensure that they spoke with one voice.

Ms Schafer asked what the intention was of the clause giving the Minister a mandate to ask the Secretariat to intervene in so called “sensitive situations”.

Irish-Qhobosheane said that provision had been made in the Bill for the Minister to have powers to intervene in the affairs of a province if the Provincial Secretariat of that province had collapsed. The question of how long that intervention would last would be determined by the extent of the problem.

Mr P Groenewald (FF+) asked for clarity as to how many new jobs would be created once the Bill had been implemented, and at what level those jobs would be.

Ms Irish-Qhobosheane replied that there was not an expectation of massive employment creation as a result of the implementation of the Bill. The Bill envisaged for the creation of a sizeable unit which would not employ over one hundred personnel.

Mr G Schneemann (ANC) pointed out that page 8 of the presentation indicated that the Bill would make provision for the establishment of the Ministerial Executive Committee. He asked how different that would be from the current MinMEC.

Irish-Qhobosheane said the MinMEC had in fact been functioning for a long time, despite the fact that it was not officially provided for in the current legislation. The new Bill would simply incorporate the existing MinMEC into legislation.

Mr M Makhubela (COPE) remarked that often, at provincial level, the MEC for Police was also the MEC for Transport, and in most cases he or she was unable to give equal attention to the two portfolios. He asked if there was anything in this Bill that sought to address the situation.

Minister Mthethwa said that Mr Makhubela was correct that one of dual portfolios usually suffered. He said that in many instances where policing was one of the portfolios, then monitoring and evaluation of policing activities was almost non-existent. The new organisational structure of provincial Secretariats, as proposed by this Bill, would go a long way in addressing the dilemna.

Rev K Meshoe (ACDP) asked for clarity as to whether policy and strategy, listed as one of the key areas and functions of the Police Civilian Secretariat, had anything to do with the operational business of SAPS members.
Irish-Qhobosheane replied that the policy and strategy referred to were not necessarily the same as those of the National Office, but stressed that it was important for the two to speak to one another and be in line with the overall government strategy of fighting crime and providing security to all who lived in South Africa.

Mr M George (COPE) asked whether the fact that this Bill stipulated for the establishment of provincial Secretariats meant that it was a Section 76 Bill.

Irish-Qhobosheane agreed that indeed the Bill was a Section 76 Bill, because it directly affected provinces and as such it would go through the processes laid down in the Constitution.

Ms A van Wyk (ANC) noted the comment that the Police Civilian Secretariat would ensure that the recommendations made by the ICD were implemented. She asked how the Secretariat could assure the Committee that it could change the attitude of police officials with regard to the ICD recommendations.
Mr G Lekgetho (ANC) asked the Minister to explain what he had meant by the statement in his opening remarks that another role of the Secretariat was to ensure that the police should reflect the views of communities. The statement was very loaded and perhaps needed to be simplified.

The Minister explained that what he had meant was that the Bill sought to make provision that communities could become involved in policing. This was the reason why the Bill provided for Community Policing Forums (CPFs) as playing an integral role in working with the Secretariat.

The Independent Police Investigative Directorate Bill (the IPID Bill): Independent Complaints Directorate (ICD) briefing
Mr Francois Beukman, Executive Director, Independent Complaints Directorate, said that the aim of the Independent Police Investigative Directorate Bill (IPID Bill) was to enhance the role of the Independent Complaints Directorate (ICD or the Directorate), to empower the ICD to perform its functions, and to re-focus its role to ensure that it was able to meet its mandate. At present, the ICD had investigative powers in respect of misconduct or offences allegedly committed by a member of the South African Police Service (SAPS) and Municipal Police Services (MPS). It would also investigate death of any person that occurred either while the person was held in police custody or as a result of police action, and any matter referred to the Directorate by the Minister or a Member of the Executive Council. Currently, there were concerns with regard to the structure, reporting and accountability procedure of the ICD. The ICD had no power to ensure that its recommendations were implemented. There were further concerns regarding the broad focus of the ICD’s mandate and whether its powers when investigating cases were adequate.

The new Bill aimed, amongst others, to regulate the functions of the Directorate and to provide for the establishment of a management committee and consultative forum. It also provided for the appointment and powers of investigators, dealt with transitional arrangements, repeal and amendment of certain laws and matters not deemed relevant to the ICD mandate any longer, and also provided for the publication of regulations to describe the operating procedures to be followed. The objectives of the Bill included alignment of the functions of the new structure with the Constitution and Public Finance Management Act (PFMA), national and provincial co-operation, reporting functions, financial accountability and a clear statement of when the ICD must investigate cases of misconduct and offences committed by members of SAPS. ICD would be completely independent from the police service, and would report to the Cabinet Member responsible for policing. Finally, the Bill provided for a change of name, from the ICD to the Independent Police Investigative Directorate (IPID). The rationale of the name change would be to re-brand the Directorate to focus on investigations, rather than being merely a recipient of complaints.

Mr Lekgetho asked what would happen to minor or petty complaints against the police, noting that the Bill provided for the new body to focus on investigating serious offences.

Mr Beukman replied that a decision had been taken to allow minor complaints to be dealt with at station level, by station commanders. This decision was based on capacity considerations.

Mr Schneemann remarked that, after listening to both presentations on the proposed Civilian Secretariat and IPID, he was worried about the danger of duplication of duplication of roles, which was undesirable for an organisation that in the main was still grappling with capacity problems.

Ms Van Wyk asked for further comment on whether it was wise to peg the salaries of IPID investigators at the same level as the salaries of detectives employed by SAPS. She also asked if this meant that qualifications of individuals would not be taken into account, and the same scales would be used even if the IPID investigators held higher educational qualifications than the SAPS investigators.

Mr Beukman replied that the IPID was hoping to recruit individuals who had all-round qualifications, experience and skills. He pointed out that it was possible that a highly skilled investigator might not hold a degree. This was the reason for the provision that allowed such a person to join IPID, based on his or her experience and ability to do the job.

Mr M George asked whether the investigators of ICD had policing powers.

Mr Beukman replied that only half of the current investigators had policing powers, and the entity was engaged in talks with the Minister to ensure a quicker vetting process, which would ensure that more were granted policing powers. In order for ICD investigators to be granted policing powers, they had to go through a vetting process, which was sometimes very lengthy.

Ms Van Wyk asked why vetting for ICD investigators was done by the police instead of by the National Intelligence Agency (NIA).

Mr Beukman replied that it was stated, even in the new Bill, that NIA was responsible for vetting, and that remained the case as far as ICD was concerned.

Mr George suggested that it would be better to exclude the clauses around salary arrangements from the Bill and leave that issue to be determined through internal processes at the IPID.

Mr Beukman replied that if the Committee felt strongly about removing remuneration provisions from the Bill, this could be considered. The strategy of the ICD was to device a competitive salary package that would attract and retain highly skilled investigators to the IPID. There was a danger that if IPID investigators were not happy, many could defect to SAPS.

The Chairperson asked for clarity as to which categories of people ICD had in mind when it laid down the criteria for appointment to serve as an investigator.

Mr Makhubela commented on a statement, on page 4 of the ICD presentation, that the principle would be to ensure that the ICD prioritised the investigations of those matters that would have a lasting impact on transforming the police. He thought this was too vague. He further said that page 6 of the presentation, on the issue of reporting and accountability, seemed confusing. One statement suggested that reporting would be done to the Minister of Police, whilst another spoke about reporting to “a Cabinet Member responsible for policing”. It was important to have uniformity in the drafting of legislation.

Rev Meshoe said that after listening to the presentation on the IPID Bill, he was left wondering as to whether the supposed lack of “teeth” in the ICD, which had been criticised in the past, had been corrected for the new structure; he could not see that there would be a difference.

Mr Beukman replied that Members of Parliament had all the powers to “sharpen the teeth” of the body by enacting legislation that gave more powers to the ICD. The new Bill now made an attempt to give the IPID more powers with regard to serious offences. Whether that would be enough remained to be seen.

Ms van Wyk said she had hoped that the presentation would address the financial implications of implementing the Bill. It was crucial for the Committee to know the issues around costing, so that it could understand how practical the implementation strategy was.

The Chairperson added that the rules of Parliament required the Committee to probe for answers as to what would be the costing implications of any programme that would draw from the taxpayer.

Mr George added that, in the past, departments had appeared before the Committee with programmes that could not be supported by the budget at their disposal.

Mr Beukman replied that a full briefing on the financial implications of implementing the Bill would be delivered once all the details had been finalised. An additional R4 million had been received from the National Treasury, which would be used to boost capacity, by funding sixteen new posts that had been created. An estimated R9 million was required to capacitate structures at provincial level for all nine provinces.

Rev Meshoe pointed out a provision in the Bill causing him concern. This seemed to suggest that the IPID “may investigate” matters referred to it by the Minister. The use of the word “may” would suggest to an ordinary person that the IPID also “may not” investigate those matters, if it so wished. It would be better for there to be a provision compelling the IPID to investigate those matters which the Minister may have referred to it, on the basis that they were serious matters.
Mr Beukman replied that where an incident fell under the investigative competence of IPID, and that matter had been referred to IPID by the Minister for investigation, then IPID would have no choice but to investigate the matter.

Ms A Molebatsi (ANC) said her main concern was that the current ICD was not visible enough, especially in rural areas. There were many human rights violations, and it would be beneficial for people in rural areas to know of the existence of the ICD.

Mr Beukman agreed with Ms Molebatsi about the issue of visibility of the ICD in rural areas. The current strategic plan of the ICD had identified becoming visible in rural areas as one priority, and a plan was being devised how to effect that. There were campaign strategies in place, which would shortly be rolled out.

Mr Schneemann asked the ICD to set out its understanding of how the monitoring and implementation of recommendations would work. He pointed out that in the past, the ICD would make recommendations either to the Minister or National Commissioner of Police, but there were no mechanisms to ensure that such recommendations were taken seriously.

Mr Beukman said that the recommendations followed two routes. If the ICD felt that an offence had been committed for which individual police members should be held answerable, then the recommendations of ICD would be passed to the National Prosecuting Authority (NPA), which would then decide if there was a prima facie case before deciding to charge the individual. In the case of misconduct that may warrant disciplinary action, as opposed to criminal charges, the ICD would simply pass its recommendations to the SAPS Provincial Commissioners, but there was no obligation for SAPS to act on the recommendations of the ICD.

Ms Van Wyk asked if the ICD would consider briefing the Committee in future on the numbers of its recommendations that had resulted in criminal prosecutions being implemented by the NPA, and how many of the prosecutions had resulted in convictions.

Mr Beukman assured the Committee that he would ensure that this information, which could be correlated, was sent to the Committee.

Ms Van Wyk said she was not entirely happy with the provision in the Bill which dealt with the issue of appointment and removal of the Executive Director. Only time would tell if this process was independent enough.

Mr George asked for clarity as to who would investigate offences involving police officers. SAPS had a mandate to investigate any crime, whether committed by a fellow officer or any other individual. This presentation seemed to suggest that only IPID would be allowed to investigate offences committed by police officials. If that was correct, then Mr George wanted to know if IPID would have all the resources to investigate certain crimes, including, for instance, those that required use of the forensic laboratories which were operated only by SAPS.

Ms Van Wyk said she personally would not want to see a situation whereby a SAPS official could investigate the misconduct of fellow SAPS officials. A conflict of interest or protectionist agenda could emerge, and justice may not triumph.

Mr Beukman replied that indeed it was true that ICD would have a mandate to investigate all offences involving SAPS members. There would be no SAPS investigative involvement in such matters, from start to finish. The ICD would carry out its own investigation and decide if it would pass its recommendations to the NPA for the pressing of criminal charges, or to the Ministry of Police for disciplinary proceedings.

The Chairperson asked why the drafters had decided to change the name of the investigative body. He wondered if that would not conflict with the Constitution, which clearly intended that there should be an independent body that would investigate, among other things, complaints. He also wondered what would be done in the case of minor complaints against police officials.

Mr Beukman replied that the change of name did not mean that IPID could not receive or investigate complaints. There was simply a change of emphasis, with more emphasis being placed on IPID being an investigative body that would dedicate most of its resources towards investigating serious crimes committed by members of SAPS.

Mr Lekgetho said the role of Parliament, with regard to the work of the ICD, was not clearly defined. It seemed that Parliament would not have any bigger role to play in the affairs of the IPID. If that was so, then he asked why this was done.

Mr Beukman replied that it was not accurate to say that Parliament had a lesser role to play. ICD was already accountable to Parliament, and IPID would be similarly accountable, having the obligation to report to Parliament on the annual report, and strategic plan, as well as IPID being accountable to report to the Minister in terms of the Public Finance Management Act (PMFA).

The Chairperson thanked participants, and stressed that it was important to have a strong monitoring system in place to ensure that police officials were not given licence to do as they wished. In regard to the name change, the Chairperson asked the State Law Advisers not to lose sight of what the Constitution had envisaged in creating a body such as the ICD.

The meeting was adjourned.


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