Independent Police Investigative Directorate Bill: Public Hearings

Meeting report

Independent Police Investigative Directorate Bill: Public hearings
African Policing Civilian Oversight Forum (APCOF) Submission
Mr Sean Tait, Co-ordinator, African Policing Civilian Oversight Forum, said the objectives of the Independent Police Investigative Directorate (IPID) should be clearly set out in the Independent Police Investigative Directorate Bill (the Bill); which should promote accountable democratic policing that operated within the rule of law, provide effective, efficient and independent civilian oversight of police, and promote confidence in the police services by addressing abuses, through prompt independent investigations.

The African Policing Civilian Oversight Forum (APCOF) believed that both the appointment and removal from office of the Executive Director should be done in consultation with Parliament, and allow for input by civil society. He stressed that there should be no delay in the appointment of a director, and that this should be provided for in the Bill.

APCOF recommended that training of the members of the IPID should be independent of the South African Police Services (SAPS). However, SAPS should be compelled to assist the IPID with information, access to dockets, identification parades and any material relevant to a case, within two days of a request being made, with penalties for non-compliance.

Mr Tait referred to the clauses in the Bill referring to the powers of the Directorate of Public Prosecutions (DPP), and said the Executive Director of IPID should be consulted on the allocation of prosecutors to cases, and those referred to the DPP by the IPID should be prioritised. It was also preferable for cases to be heard outside the area where a complaint had been lodged.

He said there should be compulsory reporting of all cases set out in Section 25 of the Criminal Procedure Act, and that there should be reporting on any criminal acts, such as attempted murder, assault, malicious damage to property, armed robbery, drunken driving and defeating the ends of justice. All shooting by police officers should be subject to review. APCOF suggested that the definition of “torture” should be in line with the United Nations Convention Against Torture, and should be developed in tandem with the Combating of Torture Bill, to provide for taking perpetrators into custody, protecting witnesses, and compensation and rehabilitation.

Mr Tait said that IPID would need to give priority to the building of capacity to investigate rape professionally and effectively. However, until a core of skilled investigators had been established, this responsibility should remain with the SAPS. SAPS officials must inform complainants of their right to lay a complaint and their right to contact the IPID when police members are accused of a sexual offence. The provisions of the Sexual Offences Act should be extended to the IPID.

He pointed out that the growing involvement of the SAPS in activities beyond the borders of South Africa made it necessary for the IPID’s mandate to include the investigation of any serious violations by members of the SAPS outside of the country.

Mr Tait said the Bill should provide for the protection of victim witnesses and “whistle blowers.”

Mr Tait then referred to the Civilian Secretariat for Police Service Bill (CSPS Bill) and said that because policing was multi-faceted, and included volunteer civil society groups and the private security industry, who often were working in partnership with SAPS and municipal police services, the scope of the objectives of the Civilian Secretariat for Police (the Secretariat) should be broadened to include all policing agencies. He further recommended that all reports on investigations conducted by the Secretariat would be public and accessible via the Secretariat web side, and in hard copy, to ensure transparency. The Secretariat should regularly assess the contributions made by the SAPS to foreign and trans-national policing operations, in terms of compliance with and promotion of domestic policy.

Mr Tait concluded by suggesting that consideration be given to establishing a Police Service Commission that would place the SAPS recruitment, promotion and discipline under civilian oversight.

University of the Western Cape Community Law Centre Submission
Ms Sam Waterhouse, Representative, University of the Western Cape Community Law Centre, referred to the clauses in the Bill dealing with investigation of rape cases, and said the definition should be expanded to cover other sexual offences, or at least sexual assault. Attention should also be given to the sexual exploitation of children. These cases were always difficult to handle, even more so when police were involved, and this necessitated clear directives from the Department of Health, the SAPS and the Directorate of Public Prosecutions.

She proposed that the IPID Executive Director must consult with the Minister of Police and other relevant agencies to develop policy directives on the manner in which sexual offences would be dealt with, including how they would be investigated.

She endorsed Mr Tait’s suggestion that as a transitional measure, the SAPS should remain responsible for rape investigations until IPID had developed the capacity to undertake good quality investigations.

Discussion
Ms D Kohler-Barnard (DA) asked whether it would be compulsory that all allegations regarding crimes committed by the police, including those involving sexual offences, must be reported to the IPID.

Mr Tait said that deaths in police custody and deaths as a result of police action already required compulsory reporting to the Independent Complaints Directorate (ICD). Cases of rape and torture were now being included in this category.

Ms A van Wyk (ANC) expressed concern that the proposed “efficient oversight” objective in the Bill was too broad, and suggested that it should perhaps be restricted to human rights abuses, otherwise the Directorate’s core functions might not be achieved.

Mr Tait said the intention was to bring the three objectives listed into prominence in the Bill, but agreed they could be made more specific.

Ms Van Wyk asked if the Secretariat should look at policing as a whole, as the private security industry also required some form of oversight.

Mr Tait agreed that closer scrutiny of the security industry was required, as at present there were no statistics regarding deaths occurring as a result of actions involving security guards.

Ms Van Wyk asked whether it was necessary to deal with the Sexual Offences Act (SOA) in so much detail in the Bill, as the provisions of the Act were over-riding, and the IPID needed to be realistic regarding its capacity to handle a wide range of sexual offences.

Ms Waterhouse said the SOA specified the involvement of the Department of Health, the SAPS and the National Prosecuting Authority (NPA), and therefore excluded any other agencies. She agreed that the initial capacity constraints of the IPID were problematic, and there would be a need to prioritise before engaging in discussions around resourcing the IPID to deal with the often under-reported areas of sexual harassment and intimidation.
 
Ms D Schafer (DA) said the proposed Protection of Information Bill would render “whistle-blowers” criminals, and yet it was proposed that the IPID Bill should provide them with protection. She also asked why the investigation of corruption was not included in the Bill.

Mr Tait agreed that account should be taken of “whistle-blowers’” vulnerability, and that their protection should be covered in the IPID Bill. Corruption would be covered under other areas of criminality. He conceded that the words “may be investigated” should be changed to “must.”

Mr M George (COPE) said he was concerned that experienced personnel from the SAPS may not be accepted if they applied to join IPID, if there was over-emphasis on seeking to maintain the independence of the IDIP investigators.

Mr Tait said the IPID would need skilled investigators, and the induction process would need to inculcate the values and ethos of the IPID, while strong investigative skills training would be needed for new recruits.

Mr George asked why IPID cases should be given priority, as there was a danger that this might result in deferment of serious cases involving the community.

Mr Tait responded that police crime undermined the very fabric of the criminal justice system, and therefore warranted prioritisation.

Mr G Schneemann (ANC) asked for clarification on why transnational policing needed to be included in the Bill.

Mr Tait said APCOF believed there would be far more call on the SAPS to deal with matters like cross-border poaching, human trafficking and counter-terrorism, and this would require the strengthening of oversight.

Mr Schneemann said the Bill provided for consultation with other oversight bodies, although these were not specified. He wondered if specifying them in the Bill would have the effect that IPID might be precluded from collaborating with other bodies that had not been specified.

The Chairperson also asked at what level regular consultative meetings would take place between the SAPS and the IPID.

Mr Tait said that the strength of oversight would depend on collaborative efforts. This meant that both police and oversight agencies needed to work towards common objectives at national, provincial and local level.

Ms Jenny Irish-Qhobosheane, Secretary of Police, said she was concerned about the capacity of both the IPID and Secretariat. The move to draft the IPID legislation had been prompted by the belief that the focus of the ICD was too broad, hindering its effectiveness, and she cautioned that IPID might be heading in the same direction. She suggested that the oversight of transnational policing, which was highly complex, and oversight over the private security industry should be approached with circumspection. She noted that IPID would be required to achieve its core functions over the next five to ten years, to ensure its accountability over the SAPS was effectively implemented. She also urged the Committee not to proceed with expanding the Consultative Forum, as had been proposed in several submissions. There might well be a need for a separate, broader forum, but the purpose of the Consultative Forum was to address recommendations and to be an operational interface. The addition of human rights bodies would water down its effectiveness.

University of South Africa (UNISA) submission
Mr Setlhomamaru Dintwe, Lecturer, Department of Police Practice, UNISA, said that strong legislation was required because of the increased prominence being given to complaints against the police.

He and his UNISA colleague, Professor Moses Montesh, had listed a number of challenges to the existing civilian oversight in a publication they had produced two years ago. He summarised that these included lack of independence, duplication of functions with other law enforcement agencies, and delayed policing powers. Further challenges were the limited mandate and jurisdiction, the lack of powers given to civilian oversight to  force institutions to comply and implement findings, and their limited accessibility to the public.

Mr Dintwe said the IPID should ideally be a Chapter 9 institution, making it independent and subject only to the Constitution and the law. UNISA thought that having the Executive Director appointed by the same Minister to whom the SAPS reported was problematic, as political independence was not guaranteed. He also stressed the need for the rank of the Executive Director, currently at the level of Deputy Director General, to be at least equivalent to that of his SAPS counterpart, who was at the level of Director General, to avoid protocol issues that might hamper the oversight process.

He recommended that clauses be included in the Bill to enforce the establishment of satellite offices in the provinces, so that the IPID became more accessible to the public, and the capacity of the IPID could be strengthened. The ICD currently had nine provincial offices, and planned to incorporate satellite offices. This was insufficient, as the SAPS had about 1 300 police stations and a number of satellite stations.

Mr Dintwe said although there would be different requirements in each province, based on their size and location, the level at which the IPID provincial heads were appointed should be at least equivalent to the heads of the body over which it had oversight.

He said the recruitment, employment and training of investigators should be in line with the requirements of the Employment Equity Act and the Labour Relations Act, and should specify the length of training at entry level. It was advisable not to recruit from the same agency that could be investigated.

The remuneration of IPID investigators should not be compared with the SAPS members, but needed to be in line with the rest of the Public Service.

Mr Dintwe then noted that the clause in the Bill dealing with types of matters to be investigated referred to “Station Commissioners.” This rank was now commonly known as “Station Commander” and there needed to be consistency.

He recommended that the definition of “corruption” should also be expanded to include such areas as attempts to pervert the course of justice, conduct likely to harm the administration of justice, payment or granting of benefits or favours in return for the performance of duties, corrupt relationships between a controller, handler or informer, and the provision of confidential information in return for payment.

Mr Dintwe said the Bill needed to identify what might be a conflict of interest, what a person should do if offered a gift or service, and how any actions of an official outside his or her work could affect his or her job.

He suggested that the proposed integrity measures might well be unconstitutional. Methods and procedures to ensure the process was legitimate were unclear. Random blood sampling, for example, was a clear violation of employee rights. He proposed that Clause 27 be totally revised. However, UNISA was satisfied with the procedure for vetting employees used by the National Intelligence Agency (NIA).

Mr Dintwe said that the issues around finances and accountability should be the responsibility of Parliament, rather than the Minister, so that political interference could be minimised.

He said the regulations outlined in Chapter 9 were too closely modeled on those of the SAPS, and should rather be aligned with those of other independent agencies, such as the Office of the Public Protector.

He concluded by pointing out that although the National Commissioner had stated that the Metropolitan Police were to be incorporated into the SAPS, no mention had been made of provincial and local traffic police, and municipal police agencies, all of whom carried arms and had the power to arrest people. He felt South Africa should follow the example set by the United Kingdom, whose oversight body had jurisdiction over all the agencies involved.

Discussion
Ms Van Wyk asked whether it would be wise to include clauses to enforce the establishment of satellite offices in the provinces, as this might result in the number of offices being limited.

Mr Dintwe responded that he felt legislation was needed to ratify the establishment of the satellite offices, although the number need not be specified.

Ms Van Wyk said she disagreed with the proposal that the rank of provincial heads of IPID should be related to the level of the SAPS in that province. The Bill clearly stated that the IPID provincial heads should all be at the same level.  

Mr Dintwe said he felt it would not be ideal to have chief directors in each province, as it was unclear at this stage how many satellite offices each would control. He maintained that it would be more comfortable to align their levels to the equivalent provincial police commissioner levels.

Ms Van Wyk disagreed with the contention that the proposed integrity testing was unconstitutional. It was currently in the Hawks’ legislation, and it would not be wrong to expect that members of IPID have the same level of integrity that was expected from other investigative units of the SAPS.

Professor Montesh replied that the regulations governing the Hawks had not yet been finalised, and it appeared that Union members were not satisfied with them. If they were approved without any challenges, then UNISA might be able to accept the integrity testing provisions in this Bill.

Mr Schneemann said that the proposed substitution of “the Minister” by “Parliament” in the Bill, in relation to financial matters, would mean that the Executive Director and the Secretariat would have to report to the Chairperson of the Committee, and that any decisions would have to go through Parliament. He wondered if this had been thought through sufficiently.

Professor Montesh said that UNISA believed that much could be learned from the arrangements outlined for Chapter 9 institutions. He felt uncomfortable with a situation where the Minister of Police was in charge of the IPID, as he felt that this was akin to a player also being a referee.

The Chairperson commented that the Bill was about the powers being conferred on the office of the Executive Director. In her opinion, anyone not complying with the requirements of the office, irrespective of their status, would be in violation of the law.

Centre for the Study of Violence and Reconciliation (CSVR) submission
Mr David Bruce, Senior Research Specialist: Criminal Justice Programme, Centre for the Study of Violence and Reconciliation, noted that this Centre (CSVR) had a long history of involvement with the ICD, the Secretariat and police accountability, dating back to the early 1990s.

He said the ICD was originally established by Section 222 of the Interim Constitution “to ensure that complaints in respect of offences and misconduct allegedly committed by police were investigated in an effective and efficient manner.” In the absence of a body such as the ICD, the police were effectively above the law. The intention was that the investigative body should not only be independent, but that it should also be able to monitor internal investigations carried out by the police. The value of this concept to the IPID was that SAPS would maintain some responsibility for keeping its own house in order, and could not simply “pass the buck” to the IPID to investigate all complaints against the police.

A weakness of the current Bill was that it had no provision indicating what the function or object of IPID was. He proposed that something be inserted, reading “The principal function of the Directorate shall be to ensure that alleged or possible offences by police are effectively and efficiently investigated.”  He pointed out that the term “possible offences” was related to deaths in custody or as the result of police action.

He said a potential strength of the Bill was that the ICD, which was overloaded with “complaints”, would be reconstituted as an investigative agency. It was therefore important for legislation to be enacted to ensure that the IPID could implement its investigative role effectively, with its mandate and powers clearly defined, as well as its authority to refer and monitor investigations. Its independence must be consolidated.

Mr Bruce said that while the IPID needed to have the ability to focus on important types of cases, such as death, torture or rape, it also needed the flexibility to deal with particular types of misconduct which were most serious, or occurring at a high level. He was concerned that the right of the Minister and other officials to refer “any matter” to the IPID would lead to the same overloading of cases as the ICD had experienced.

He proposed that Clause 25(1) should provide that the “IPID must investigate deaths in police custody or as a result of police action, alleged torture or rape in police custody or by police”, whilst Clause 25(2) should provide that “the Directorate shall investigate any other category or case of possible or alleged offences or misconduct by police referred to it by the Executive Director, or by the Minister, an MEC, or Secretary, acting in consultation with the Executive Director.”  He said Clause 25(3) was redundant, and should be scrapped.

The CSVR felt that Clause 24(2), which dealt with the powers of IPID investigators, was basically sound, but greater clarification might be needed to ensure there would be no restriction on IPID’s capacity to conduct unfettered investigations.

Mr Bruce suggested that where the SAPS had the ability to carry out effective investigations itself, it would be acceptable for the IPID to refer such cases to the SAPS, and then monitor the process. One instance might be where preliminary investigation into a death provided no reason to suspect unlawful police conduct. Another might be where the SAPS was better equipped to carry out rape case investigations, as it had specialised in-house capacity.

He said SAPS’s obligation to respond to IPID recommendations should require that SAPS acknowledge the receipt of recommendations, and give an indication, within a specified period, of what steps had been taken to implement the recommendations, or reasons why they had not been implemented.

He said it was important that legislation specify that there should be prompt or immediate reporting by the police to the IPID of deaths in custody or as a result of police action, supported by disciplinary sanctions if this was not done. The obligation to report should also include allegations of assault of any kind, otherwise police would have to distinguish between “torture” and “non-torture” cases.

Mr Bruce expressed concern that the independence of IPID investigations might be compromised by some prosecutors with whom the ICD had had problems of co-operation, due to their close working relationship with police implicated in ICD dockets. He suggested that possible solutions might be the prioritisation by IPID of cases referred to the Director of Public Prosecutions (DPP), or the establishment by the National Director of Public Prosecutions (NDPP) of a special director position to review matters pertaining to the police, as had been introduced in Sao Paulo.

In regard to the CSPS Bill, he said that because the SAPS was an extremely large and complex organisation, it was very difficult to monitor and evaluate. The ability of the Minister to exercise effective oversight and political authority over the police depended in many ways upon the degree to which there was a functioning Secretariat. However, Clauses 4 and 5 of the Bill imposed too many obligations on the Secretariat, and this might detract from its ability to perform key policy development, monitoring and evaluation functions effectively.

Discussion
Ms Van Wyk said the reporting of assault allegations raised two issues that were missing in the current version of the Bill. The first was the reference to “assault”, and the second was the absence of anything obliging the police to report, within at least 24 hours, any deaths in police custody or as a result of police action. This gap in the legislation needed to be addressed.

Ms Kohler-Barnard said she disagreed with the CSVR’s position regarding the authority of the IPID to refer matters to the police where preliminary investigation provided no reason to suspect unlawful police conduct. This would allow the very people who had, for instance, murdered a person in detention to claim there was no reason to suspect unlawful police conduct. This needed to be determined by an independent organisation, such as the ICD or IPID.  She said she felt the same way about allowing the SAPS to investigate rape cases. It should not be assumed that the police could, or would, police themselves.

Mr Bruce agreed that international experience showed that police were unable to investigate themselves effectively, so the role of the IPID was designed to check on those investigations delegated to the police.

Ms Schafer said she disagreed with the CSVR’s contention that Clause 25(3) was irrelevant, on the basis that one could rely on other people to report offences or misconduct. If it was removed, there was no other reference to corruption in the Bill, and this would essentially limit the ability of rank and file police, for instance, to report such issues to an independent body for investigation.

The Chairperson summarised that the Committee noted that issues to be taken into account during later deliberations on the Bill would include capacity, training, independence, time frames for implementation, and the cost implications.

The Chairperson noted that the Committee would resume its hearings on 10 August.

The meeting was adjourned.