South African Police Service “Hawks” Amendment Bill [B7B-2012]: briefing by Department of Police

Meeting report

Presentation to the Select Committee on Security and Constitutional Affairs
Ms Jennifer Irish-Qhobosheane, Secretary of the Civilian Secretariat for Police (CSP) said the South African Police Service Amendment Bill was introduced following the Glenister judgment in the Constitutional Court which found Chapter 6A of the South African Police Service Act, dealing with the Directorate for Priority Crime Investigation (DPCI), to be unconstitutional. The Court ruled that legislation must provide for an adequate measure of independence for the DPCI, and this must be done before 15 September 2012. The Constitutional Court, in its judgment, found that the creation of ‘‘a separate crime fighting unit within the South African Police Service was not in itself unconstitutional’’. The Court posed two questions: (1) whether or not the Constitution requires the State to establish and maintain an independent body to combat corruption and organised crime; and (2) whether or not the DPCI meets the requirement of independence. The Court considered a number of international conventions regarding the independence of corruption fighting units and held that ‘‘the obligations are clear and unequivocal in that they impose on the Republic a duty to create an anti-corruption unit that has the necessary independence’’.

The Court considered the legislative provisions that establish the DPCI under the following aspects:
▪ whether the DPCI has the operational & structural attributes
▪ required for an adequately independent anti-corruption unit;
▪ security of tenure and remuneration; and
▪ the accountability and oversight by the Ministerial Committee.

The Court concluded that the Constitution did impose an obligation on the State to establish and maintain a body with necessary independence to combat corruption and organised crime.

Ms Jennifer Irish-Qhobosheane took the Committee through the 22 clauses of the Amendment Bill.

In conclusion she noted that during the deliberations of the Portfolio Committee a number of concerns had been expressed about the constitutionality of the Bill, and in particular in relation to section 207(1) and (2) of the Constitution which provides that: (1) The President, as Head of the national executive, must appoint a woman or a man as the National Commissioner of the police service to control and manage the police service; and (2) The National Commissioner must exercise control over and manage the police service in accordance with the national policing policy and the directions of the Cabinet member responsible for policing. The State Law Advisers of Parliament expressed the view in Parliament that the amendments effected to the Bill by the Portfolio Committee on Police, would ensure the constitutionality of the Bill, in line with the requirements of the Glenister judgement in the Constitutional Court, with regard to “adequate independence” required of the DPCI.

Discussion
The Chairperson asked if immediately after the judgment there was some dissatisfaction from some the executive that the decision encroached on the separation of powers principle.

Mr W Makhubela (COPE, Limpopo) wanted to find out which Minister was referred to in the Bill. If it was the Minister of Police, how did the Minister make SAPS’ role independent of the Directorate? As far as investigation of crime was concerned, how could improvements be made, given the level of experience of the investigating officers. A further important consideration would be were investigative officers properly trained? Would lower level officers be given the responsibility of investigating certain criminal cases? Was this Amendment Bill to be made retrospective? If the present incumbent was contracted on a five-year term, would his term of office be able to be extended for a period of seven or 10 years? The budget was compiled by the Directorate but incorporated with the budget of the National Police Commissioner. The Bill could not allow for the Chief Financial Officer (CFO) of a special investigation unit like the DPCI to be checking the day to day budget. There was mention of disciplinary action that would be taken on a seconded official, would this be in terms of a law of general application or the provisions of the Bill? 

Mr A Matila (ANC, Gauteng) asked for clarity on what was being done here. In terms of the presentation the powers of the National Police Commissioner were being reduced.  One could not fulfil the role of an accounting officer whilst the tasks connected therewith were given to somebody else. Clarity had to be given on this. This seemed to render the office of the National Police Commissioner to be a useless body because the power to deal with matters was being curtailed. Was it implied that there was no longer any trust in appointees to the office of the National Police Commissioner? When it was said that there had to be independence, what independence was the requirement set out in the judgment referring to? There was a move towards dismantling long-standing institutions in the name of ‘independence’ in this country whereas we should be strengthening them. If this body was a part of the police service, where was it ‘independent’? The National Police Commissioner was being sidelined and new reporting lines were being created.

Mr L Ndzimande (ANC) requested more clarity on clause 7 or 8; he said it was difficult to remember which clause it was exactly because there was no copy of the Bill in front of him. Clause 8 had a provision for a two thirds resolution taken by the National Assembly (NA), what informed this? There were two houses of parliament and there should be consideration for a bigger role for the provinces. The Bill did not deal with the situation for renewal of contract if the National Head of the Directorate had discharged duties adequately. We might have a person who is highly trusted and has done the job well, but when the term of office is over, this person then has to go, this would not be helpful.  What had the Chair been informed about national / provincial competence in terms of Parliament? He called for cascading some of the functions into provinces. Under clause 14, has the Bill already been operating, would there be an evaluation in the provinces on how had they were participating? Was the Bill directing properly in terms of provincial participation? He questioned secondments. The Clause 17 amendment to Section 27 referred to the conditions and the terms these people would be dealt with. In terms of the DCPI did this include the Minister? He questioned the limitations of people’s functions that had been critical to investigations. He questioned whether there were provisions in the Bill for this. He questioned Clause 13 dealing with the Ministerial Committee. He asked whether it was a Cabinet Ministerial Committee or a committee that the Minister established. What provincial related activities were included in the Bill?

Mr D Bloem (COPE, Free State) asked for clarity on page two of the presentation. The court had ruled that there needed to be an adequate measure of independence for the DPCI. According to the presentation, that had not been what the court had said. The presentation had stated that the Minister would be the head of the accounting officer. The court had said that the creation of a separate crime-fighting unit within SAPS was not unconstitutional. Mr Bloem said that the DPCI must convince him that this would be an independent body. The officials from the Department had to explain the difference between full independence and adequate independence. This was why the court had said that this must be adequately independent. In the judgment, the creation of a separate crime unit had not been unconstitutional. He said he was not convinced that this would be an independent body. The court said it must be independent but did not say full independence. He asked for clarity on ‘full independence’ and ‘adequate independence’.

Mr Makhubela asked for clarity on Clause 10, what was being referred to here? If the DPCI investigator felt he was being unduly influenced or hindered, was he allowed to open a case because of intimidation?

Secretary of the Civilian Secretariat for Police and DPCI response
Ms Irish-Qhobosheane replied that it had been a very close judgment. It was 4-5. If you looked at the judgment, at some point the majority judgment referred to the minority judgment as the majority judgment. It was clear that changes were made at the last minute in this judgment. This indicated that even within the Constitutional Court there would have been significant concerns. There were certain issues where we needed to comply with the Constitutional Court and made clear the role of the executive with regards to governing. She said we have been talking about the Minister of Police. The Constitutional Court Judgment said that in our democracy there was always going to be an executive that had some authority and in the instance of the Scorpions, it was the Minister of Justice. In instances of the police, it was the Minister of Police and what had not been required was full and complete independence where that executive had no role. What had been required had been adequate independence. In defining adequate independence, the Constitutional Court looked at work that had been done by the OECD (Organization for Economic Co-operation and Development) where they spoke of the necessary structural and operational independence. It was quite clear that the constitutional court had not been saying that we required full and absolute independence where there was no executive power. They needed a necessary degree of independence. The Constitutional Court said that the structure should be completely separate [IS THERE A NOT MISSING?] from the executive. This was not a question of Scorpions as constitutional and the DPCI as not. They were not asked to rule on the Scorpions. They were being asked to rule whether the DPCI was constitutional or not. They found that it was not adequately independent.

Ms Irish-Qhobosheane replied that the current head of the DPCI had not been appointed on a contract but was appointed as current member of the South African Police Service (SAPS) and had been governed by all such requirements on a full time basis. The Amendment Bill had said that there would be a fixed 7-10 year term. General Dramat would be able to apply for that position. Whether he gets the postion or not, would be for the process to decide. If he did not get the position he would be deployed elsewhere.

Ms Irish-Qhobosheane replied that it could have been possible to go a ‘designated department’ route. It was not a problem to have had the Scorpions under the Department of Justice but they also spoke about the need to have the policing power under the Minister of Police. If one looked at the number of DPCI members and tried to establish a separate DPCI outside of the police, it would have meant devoting a significant number of resources just to administer that structure. International research and the UN warned that creating parallel structures with your existing law enforcement agencies would have lead to confusion. Also, creating a whole new bureaucracy would have meant spending a great deal of resources on bureaucracy rather than dealing with actual investigations.

Ms Irish-Qhobosheane replied that the structure was best kept within SAPS. The Department had also tried to ensure that the Bill meet constitutional muster: that it had adequate independence. It had not been about whether someone had confidence in the particular person at the National Commissioner’s level or not. The structure should be placed within SAPS because it was the constitutional mandate of the South African police to investigate crime, including corruption.

Ms Irish-Qhobosheane replied that seconding officials would remain. If you had been seconded from SARS (South African Revenue Service), you remained a SARS employee. You were just seconded to the DCPI for that investigation. Any disciplinary procedures handled against you, would be handled by the South African Revenue Services (SARS), not the DPCI.

Ms Irish-Qhobosheane replied that a renewable term of office was something that was seen by the Constitutional Court as something that could be open to manipulation.

Ms Irish-Qhobosheane replied that part of SAPS would remain a national competence but it would have branch offices at a provincial level because there would be provincial aspects of an investigation which was similar to what happened now with DPCI. It would not necessarily be that all the structures from national would be cascaded down to provincial level.

Ms Irish-Qhobosheane replied that all DPCI members must be vetted by a member of the National Intelligence Agency (NIA). Due to problems in delays where vetting was concerned, it had been left open as to what intelligence structure would do the vetting. However, it had to be an official intelligence structure and they had to be officially vetted.

Ms Irish-Qhobosheane replied that the Ministerial Committee was a Cabinet committee and the Act specifically talked about different people that served on that committee. It had not been a committee that the Minister of Defence had the discretion to appoint non-ministerial members. It had been a sub-cabinet committee that dealt specifically in terms of the legislation with inter-governmental cooperation on issues of organized crime.

Ms Irish-Qhobosheane replied that the Constitutional Court did not say that this had to be outside of SAPS. It was SAPS’ mandate to investigate crime, but what the Department had been required to do was to set up DCPI with the necessary independence – and that required structural and financial independence. The three aspects of adequate independence the OECD required were: operational, financial and structural independence. The Department had tried to address these issues within the South African Police Service Act.

General Anwa Dramat, Head of the DPCI, replied that DPCI would be focused on serious organized crime, serious corruption and serious commercial crime. The investigations would be proactive, project-type investigations. DPCI members would be at the scene and assemble experts and forensic scientists. Provincial heads would be covered throughout the country. Those scenes of investigation would be seen by DPCI. DPCI would be seen throughout the country and would summon the specialists needed to deal with the crime scenes.

Gen Dramat replied that it was not a part of the judgment that it was unconstitutional for DPCI to be within SAPS. However, DPCI was only meant to deal with the “top end” crime. SAPS was responsible and had the mandate to investigate all of those crimes. There needed to be a relationship between DPCI members and SAPS members responsible for investigating. There was going to have to be a committee to decide which cases remained with SAPS and which were escalated to DPCI. For operational effectiveness it made sense that it was located within SAPS. It was also important that DPCI focused on the core of its investigations and not to be too bureaucratic. If you make DPCI also the accounting officer with a big administrative structure, it would take the focus away from ensuring operational effectiveness.

Gen Dramat replied that they would circumvent based on an investigation and the legal instruments that would be relevant in order for you to deal with that specific investigation.

Gen Dramat replied that there was a national structure and it was at the national office. There would be investigations that were provincially based. Those members part of the national investigation committee also existed within the provinces. There had been Director of Public Prosecutions (DPPs) for example and SARS in all the provinces. It would be sensible for there to be a meeting of these officials to discuss the smooth running of those investigations at the provincial level.

Mr Matila asked the state law advisors to address the issue of the Commissioner’s authority over the budget.
Ms Irish-Qhobosheane replied that if one looked at the Bill, it was not that the DPCI National Head reported directly to Parliament without the National Commissioner being present. It was that the DPCI National Head had to be present with the National Commissioner when the section of the annual report dealing with DPCI was presented.

Mr Matila questioned if the DPCI National Head had the right to go straight to the Minister and report without informing the National Commissioner.

Ms Irish-Qhobosheane referred to the section of the Constitutional Court judgment that addressed what Mr Bloem had asked. She was reading from the Majority Judgment which read ‘the second general point we (the court) made was that adequate independence does not require isolation from political accountability. In the modern polic this would be impossible and it would be adverse to our uniquely South African constitutional structure. What we require is not insulation from political accountability but insulation from the degree of management by political actors.’ It did not say that there should not be accountability to a Minister. This needed to be made clear. 

Ms Carin Booyse, State Law Advisor, replied on the issue of removal of DPCI National Head from office that there had been a debate within the Portfolio Committee regarding certain proposals on this matter. In terms of Clause 9(3) of the Bill, the Committee had several options they considered in terms of removal of the Head. In this instance, the Committee took into account the competency of DPCI as well as the requirements for independence. They asked the state law advisors to provide them with several options. Section 9(3) provided them with the removal of the head with a 2/3rds majority resolution by the National Assembly. The subsection then read that the DPCI National Head may be removed from office on the grounds of misconduct, incapacity or incompetence based on the findings of the National Assembly. The adoption of the resolution by the National Assembly required a vote of at least two thirds of the National Assembly. The Committee also had us look at the procedure of the independent bodies created by Chapter 9 of the Constitution. The Committee had decided upon the provision that was currently in the Bill.

Mr V Manzini (DA, Mpumalanga) noted that a section 75 Bill needed the concurrence of the NCOP, so what would the comments of the state law advisor be about the procedure to remove the DPCI Head requiring a resolution by the National Assembly only?

Ms Booyse replied that the issue was discussed by the Portfolio Committee and the decision that was taken was that the provision as currently stated in the Bill was the provision the Portfolio Committee was comfortable with.

Mr Bloem questioned the independence of DPCI. The Public Protector was under the Minister of Justice but that unit was independent. They took decisions on their own. The reason why Glenister went to Court was to challenge the very same thing. He wanted to say that Scorpions had been very effective. They were under the Minister of Justice at that time, not under the Minister of Police. They were effective. He asked for copies of the judgment. He asked why a retired judge was not heading this unit.

Mr D Joseph (DA, Western Cape) also requested copies of the judgement. He asked if the presentation was the same as the one presented to the National Assembly. He asked for clarity about transferring in Clause 7. He asked about the term of office; “for a non-renewable period of not shorter than seven years and not exceeding 10 years

“. Where did this length of term come from? Why not five years? He asked who was consulted about this amendment. What would be the roles of the MECs in the provinces? He also expressed concern about two people having direct access to the Minister. If we had a National Commissioner and we had deputy commissioners, you could still have a department with independence.

Mr Makhubela asked for clarity on the meaning of “independence”.

Mr Bloem asked for clarity on the independence of the Public Protector unit.

Mr Matila referred to the Office of the Military Ombudsman in the Department of Defence which is an independent body. The issue there had been the degree of independence. The Ombudsman reports to the department head and the Minister of Defence. The Ombudsman just goes straight to the Minister. It was this Committee that had passed that particular Bill, the Military Ombudsman Bill.

Ms Irish-Qhobosheane replied that the Public Protector was responsible to Parliament and was a Chapter 9 institution. When drafting the Bill, they had looked at different options. She reported having lengthy discussions with the Portfolio Committee. If you wanted to create a Public Protector type institution, it would require a constitutional amendment because it would become a Chapter 9 institution. There was nowhere in the judgment that says one needed to bring about a constitutional amendment in order to make the structure constitutional.

Ms Irish-Qhobosheane said the presentation had not tried to “enforce” what the National Assembly said, but these debates had been held at the National Assembly level. If one wanted to go the Chapter 9 route, one would have had to amend the Constitution and she was not sure the Constitutional Court would have ruled such a thing out.

Ms Irish-Qhobosheane noted that the Public Protector as a Chapter 9 Institution was accountable to Parliament. Although there was reference to the Minister for certain things, the Public Protector was ultimately accountable to Parliament. The current version of the Bill was bringing a structure that remained within the police service, that performed the constitutional functions of the police service with a focus on organized crime and corruption, whose accountability aligned with the police service, but that had the adequate structural independence.

Ms Irish-Qhobosheane explained that there was a retired judge who had an oversight function, but this body had a policing function. One was talking about crimes here and the police had the responsibility for dealing with crime. Therefore the function of DPCI Head was most appropriately carried out by a police officer who had the powers and the experience of an investigator. One was not talking about the oversight body which was a retired judge. One was talking about an investigative body which required policing powers. This was why they had not gone the route of the DPCI Head being a retired judge.

Ms Irish-Qhobosheane said the current presentation was not the initial presentation given to the Portfolio Committee because she was presenting the Bill as it now stands after changes made to it by the National Assembly. The presentation had been adapted to present the B version of the Bill.

Ms Irish-Qhobosheane replied that copies of the Constitutional Court judgment could be provided. It would be useful to provide the Committee with some of the background documents: the Constitutional Court judgment, the OECD report that the Constitutional Court referred to because they clarify a significant amount. The Department did a summary of the OECD report. These documents clarify many of the questions being asked. There was not an example of a complete success when it came to this issue. Some people had pointed to the Hong Kong model but if you look at the Hong Kong model, they had a 87% conviction rate, but that was the conviction rate of the cases that were taken to Court. They had approximately 120 000 cases reported to them of which only 12 000 went to Court and they were basing that conviction rate on that 12 000, not on the 120 000 reported to them.

Ms Irish-Qhobosheane said that the OCED report would be provided in order to indicate what was meant by independence. Certain criteria must be met: it had to have structural independence, and it went into detail to explain what that structural independence was. It had to have operational independence to prevent political interference and financially, it had to have the necessary resources.

Ms Irish-Qhobosheane said that the Department had based the 7-10 year term on the National Prosecuting Authority (NPA) Act. They had looked at conditions of service and processes in relation to the NPA.

Ms Irish-Qhobosheane explained there were extensive consultations which was why the process was delayed. The team that developed this legislation was a joint team between SAPS and the Secretariat. From Day One, there was a joint team. They had extensive consultations with the Department of Public Service and Administration (DPSA) and National Treasury and Justice who were involved in this process as well.

Ms Irish-Qhobosheane replied that in accordance with the Constitution, MECs had a role with the police and this remained a part of the police. Therefore there would have been a level in which the MECs would have had an oversight role in the same way that they had an oversight role with public policing. However, because of the nature of the cases that this unit would be investigating, there was also the retired judge that had the oversight role. All they had done was to strengthen that judge’s role and that was less based on the Constitutional Court and more based on the amendment that was brought when DPCI were established. One of the things that that amendment said was that within three years, the Minister of Police could bring any changes to the legislation to the Parliament, based on the experience of DPCI. The Bill had not only been based on the Constitutional Court judgment, but also on the engagements that the Minister of Police had had with the judge regarding the judge’s role in the last 18 months.

Ms Irish-Qhobosheane noted that when something goes to Court and gets challenged, it impacts on one’s ability to deliver services. What was crucial for them was that this Bill created an effective DPCI.
The OECD had made it very clear that there was no blue print, and they could compare completely different models. The OECD said that in the majority of countries this function fell under the police or the judiciary.

Ms Irish-Qhobosheane said that the legislation was very clear that the accounting officer remained the National Commissioner of Police. There had been questions raised about dual lines of reporting to the Minister. The Minister had the power to call anyone and did not have to get permission from the National Commissioner.

The Chairperson said that further engagement was needed. He requested that Members look at the Bill and the judgment. He requested the Department and Office of the State Law Advisors to make themselves available to those who needed clarity on certain issues. He noted the court judgment deadline of 15 September 2012.

The meeting was adjourned.