ATC191121: Report of the Select Committee on Security and Justice on the Independent Police Investigative Directorate Amendment Bill [B 25 – 2018] (National Assembly – sec 75), dated 20 November 2019:

Independent Police Investigative Directorate Amendment Bill [B24-2018]:

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ANNEXURE A

Summary of Public Submissions: IPID Amendment Bill.

ORGANISATION

SUBMISSION

COMMENTS

1.

African Policing Civilian Oversight Forum (APCOF)

• Security of tenure, which requires legislative and institutional mechanisms that protect the primary decision-making of an institution (in this case, the IPID Executive Director) from being removed without just cause. 

• Institutional independence, which requires structural relations that secure the independence of the institution from undue influence in the exercise of its functions. 

• Financial independence and security, which operates at both the level of individual staff members and at the institutional level. APCOF submits that issues of financial independence and security are beyond the scope of the current analysis of the draft IPID Amendment Bill and are not covered by this submission in detail, but are nonetheless important considerations to raise before the Committee at this stage in its deliberations.

• Recommends that both the appointment and removal of the Executive Director must be made through a committee in the National Assembly and the organization sets out a list of criteria that should be met, criteria that should be followed in such processes:

• The Executive Director shall be appointed for a period of non-renewable fixed term of not shorter than seven years and not exceeding ten years.

The Submission as with many of the submissions hereunder falls outside of the scope of the current bill which only seeks to amend Section 6 of the Act to accommodate the Constitutional Court’s recommendations.

2.

Individual: James Furse

• Concurs with the proposed amendment and reiterates that IPID should be independent from Ministerial interference.
• Recommends that the Bill should include the punishment of police officers.

IPID makes recommendations to SAPS and this is an issue which the Committee has been monitoring in terms of whether or not SAPS is acting on IPID’s recommendations.

The punishment of police officers falls outside the ambit of the current amendments before the Committee.

3.

COSATU

• Supports the amendments to the Bill and to strengthen IPID’s role and parliament’s oversight role to minimize potential executive abuse of power.

4.

Helen Suzman Foundation

Stakeholder engagement process

The HSF has had the benefit of reading the African Policing Civilian Oversight Forum’s (APCOF) submission to the Portfolio Committee. We make two comments in this regard:

a) The APCOF submission references a Draft Bill finalised in November 2017, which was a product of the stakeholder engagement workshops facilitated by IPID. We understand that the Civilian Secretariat of Police (CSP) serves as a legislative partner to IPID, and that it plays a crucial role in placing relevant information before Parliament. We share APCOF’s concern that the Draft Bill, for various reasons, could not be deliberated on by Parliament. We hope that this consultation process reopens the possibility for the Draft Bill to be deliberated on.

Throughout the stakeholder engagement processes, emphasis was placed on creating a sufficient degree of independence within IPID. The Bill as it currently stands is deeply concerning as it only deals with a technical compliance with the Constitutional Court Order. It is our view that this undermines the intent of both the High Court and the Constitutional Court. We urge the Select Committee to use this opportunity to consider a broader amendment of the Bill, beyond what appears to be a mere copy and paste exercise from the South African Police Service Act 68 of 1995 (“SAPS Act”).

Substantive comments

The proposed section 6A (1)

The proposed subsection 1 of the new Section 6A of the Bill makes reference to “a Committee of the National Assembly”. This wording is drawn directly from Section 17DA (3) of the SAPS Act. The use of the words “a Committee” is ambiguous for the following reasons:

a) Section 1 of the SAPS Act makes reference to “the Standing Committees of the National Assembly and the Senate [sic] responsible for safety and security issues”;

b) “Committee” is defined in the IPID Act as follows: ““” means the Management Committee established under section 11”;

c) Section 6(2) of the existing IPID Act states, “The relevant Parliamentary Committee must, within a period of 30 parliamentary working days of the nomination in terms of subsection (1), confirm or reject such nomination.”

This Section makes clear reference to a Committee distinct from the Management Committee, through use of the words “relevant Parliamentary”. This anomaly must be addressed.

 Proposed section 6A(3)(a)

The proposed wording of this clause is drawn from Section 17DA (5) of the SAPS Act. The use of the word “Committee” is ambiguous for the same reasons set out above.

Recommendations

a) Insertion of the words “relevant Parliamentary” before the word “Committee” in the proposed Section 6A 1(a) to bring the clause in line with the wording in Section 6(2) of the IPID Act.

b) Addition of the words, “and as contemplated in Sections 12, 13 and 14” in the definition of “Committee” in Section 1 of the IPID Act.

c) Addition of the definition of “Parliamentary Committee”, in section 1 of the IPID Act, that describes the specific Committee referred to in Section 6(2) of the IPID Act and Section 6A of the proposed Amendment. This definition must make clear that the relevant Parliamentary Committee which is empowered to appoint the Executive Director in Section 6(2), is the same Parliamentary Committee referred to in the proposed Section 6A.

This distinction is important in order to differentiate it from “the Committee” as contemplated in Sections 11, 12, 13 and 14 of the IPID Act which concern the “Management Committee”.

Conclusion

There is room to improve the IPID Act beyond a mere technical incorporation of the SAPS Act, which effectively forms the entirety of this current Bill. Should the Select Committee decide against a broader consideration of the Bill, we caution that this opens up the proposed amendments to judicial review. The inclusion of appointment criteria and the procedural requirements of removal of the Executive Director are necessary additions to the IPID Act in order to ensure that IPID is imbued with a sufficient degree of operational and structural independence, as envisaged by the Constitutional Court.

The Foundation recommends specific changes to the IPID Act broadly as has been raised by the other organisations supporting such a broad review of the Act. These recommendations fall outside of the ambit of the current amendments before the Committee.

Substantive Comments for consideration by the Committee during its deliberations on the Bill.

5.

IPID

• The Committee Bill in its current form will not pass Constitutional muster and may be declared inconsistent with the Constitution.
• IPID proposes a review of the IPID Act as a whole in terms of a draft Bill which they attach to their submission marked Annexure E.
• The Committee Bill does not provide for the appointment of the Executive Director
• The Bill should include provisions about the remuneration and conditions of service of the Executive Director
• A new Section 6 A should be included in the Bill which deals with remuneration and conditions of service of the Executive Director
• Section 6 B should be inserted to align it with the McBride Judgement to ensure parliamentary oversight of the suspensions and removal of the Executive Director as set out in par.4.13.2 of the Submission.
• Section 6 A of the Committee Bill – the decision whether or not to suspend the Executive Director should be made by the Committee and not by the Minister.

The submission largely contains recommendations pertaining to the review of the IPID Act as a whole which falls outside the ambit of the current amendments before the Committee.

Substantive Comments in relation to Section 6 of the amendment bill for consideration by the Committee during its deliberations on the Bill.

6.

Individual Submission by Mr Buthelezi

• Does not relate to IPID Bill at all.

7.

Western Cape Government:

Community Safety

• Broadly the submission refers to amendments to the entire Act and reflects the sentiments of most of the other submissions made that the Act requires amendments of various sections to comply with the Constitutional Court’s findings.

Specific recommendations to the Bill before the Committee is limited to the following:

• Section 6A(3)(b), the reference to “a resolution calling for the removal of the Executive Director’s removal” should be “the resolution” so that it refers to the resolution of the NA referred to in sections 6A(1)(b) and 6A(2) which precedes section 6A(3)(b).

• Therefore, the recommendation is to delete “a” in “a resolution” and replace with “the”.

• Delete the comma in line 2 of the proposed Section 6A(5).

The recommendations are technical in nature.