INDEPENDENT POLICE DIRECTORATE BILL

1. INDEPENDENT POLICE DIRECTORATE BILL Submission by South African Policing Union (SAPU) President Mpho Kwinika DATE: 10 AUGUST 2010 TIME: 10h05 – 10h35

2. SAPU SUBMISSION INTRODUCTION The South African Policing Unions (SAPU) and the thousands of its members wish to express its thanks and gratitude for the opportunity to submit its inputs and comments to the proposed Independent Police Investigative Directorate Bill. We want to express from the onset that we welcome this Bill and we believe that it is progressive in its outlook and content. We are certain that once it has been finalized, it will go a long way in strengthening oversight and addressing the problem of misconduct with the police services. Our members know that SAPU does not condone misconduct amongst its members. SAPU will only play the role of ensuring that its members accused of misconduct are dealt with fairly in the disciplinary hearing. SAPU will not protect its members involved in corruption, murder and facing rape charges. While we welcome the strengthening of the oversight of the police services, this should not be seen as replacing the role of police commanders and the internal police disciplinary management systems in addressing the problem misconduct in the police services. It is well documented in the literature the difficulties that outside of the police oversight bodies face when conducting their investigations. The experience of the ICD should provide valuable lessons that need to be dealt with in order to ensure that oversight bodies are effective in investigating the police. In many ways, the failure by the Independence Complaints Directorate (ICD) and the Secretariat over the years to successfully perform their duties provides valuable lessons for the proposed Police Investigative Directorate to learn from. One key lesson is that for any outside investigative body to succeed in performing its duties require the full cooperation of police commanders and organized labour.

3. SAPU SUBMISSION INTRODUCTION – CONTINUED In one way or another, the Directorate will interface with the police management as well as police unions hence it may be necessary to provide in the legislations protocols that will need to be followed to ensure successful investigations. Police commanders spend most of their time with police officers on the ground and are in most cases the first people to know about incidents of misconduct by their police officers. There are the first to know if a police officer has shot somebody or if a person has died in police custody. More importantly, given that police commanders have once been police officers themselves suggests that they are better positioned to understand how to investigate cases of misconduct against police officers. Our view is that the new Directorate although independent will require that it works well with police commanders in the SAPS. Organized labour organizations are also important role players that should not be ignored because labour organizations exist to look after the rights of members. Labour organized are also critical in ensuring that its members are treated fairly during investigations and in the disciplinary proceedings. Although our democracy in South Africa has matured there is still a long way to go in our public officials and public institutions easily accepting to be held accountable. The demise of the elite crime bursting unit, the Scorpions provide valuable lessons of the difficulties that public institutions face when investigating senior public officials. The public perception around the arms deal was it was never sufficiently investigated in order to protect senior politicians and government officials. Therefore, the proposed Directorate will require legislative clarity, authority and support to ensure that it succeeds in fulfilling its mandate. This is important to strengthen cooperation and avoid the stand off that was often seen between the Scorpions and SAPS and between the Metro police and SAPS.

4. SAPU SUBMISSION Recipe for Disaster The difficulties that the ICD faced in executing its mandate are well documented. As a result, it earned the unfortunate label of a “toothless watchdog” when it came to investigating police misconduct or criminality. The ICD lacked the necessary capacity, political support and budget to implement its mandate. It appeared that it was easy for police officers to simply ignore the ICD investigators or their recommendations. Our view is that unless the proposed Directorate is given power to ensure that its recommendations are implemented, this will be yet another ‘toothless watchdog’ this time with a different name. The proposal in Section 9 of Chapter 2[1], does not give the Directorate the necessary power and authority to ensure that its recommendations are taken seriously and implemented by the police. Instead, this role is delegated to the Secretariat. It appears that the ICD will investigate and ensure that another department, the Secretariat monitors the implementation of the recommendation. This assumes that the Secretariat will be in support of the recommendations by the Directorate. What happens if the Secretariat do not agree to with the recommendation made? The Secretariat is likely to suffer legitimacy in monitoring the implementation of recommendations that they may not even defend or understand. Also, given that government departments develop their own priority areas and programmes every financial year, it is unlikely that the Secretariat will divert its resources and monitor the implementation of the Directorate recommendations which they may not necessary agree with. While it is important for the Secretariat and the Directorate to work well together our sense is that the proposed Bill reduces the Directorate to a junior partner in ensuring that its own recommendations are taken seriously and implemented by the police [1](1) The Directorate must provide reports to the Secretariat on an ongoing basis on the finalisation of investigations and on its findings and recommendations made. (2) The Secretariat must monitor implementation by the South African Police Service of the recommendations made by the Directorate and provide the Executive Director with regular reports on steps taken by it to ensure compliance.

5. SAPU SUBMISSION All Are Equal Before the Law For the Directorate to have the support from the public, organised labour and the police its investigations must be driven by principles which take on board the rule of law, equality before the law and equal justice. Investigations must be conducted professionally without fear, favour or prejudice. In the past, the ICD was perceived to only targeting junior police officers and not high ranking police commanders. For example, although the ICD managed to secure a number of convictions of criminally orientated police officials, in 2006 it found no evidence of corruption against the ex-National Commissioner Jackie Selebi who has since been found guilty of corruption. There are other numerous cases of corruption involving other senior police commanders that have never received any attention by the ICD increasing the perception of bias against junior officers. The following are other areas of our concern: 1 The Position of Executive Director Our view is that one of the biggest weaknesses the ICD had was that it was led by someone holding a junior rank to that of the police commissioner. Given the protocols in the public service suggests that it was unlikely that the Executive Director could summon the National Commissioner because of differences in rank. Our view is that, the rank of Executive Director must be clarified in terms of where it is in relationship to the rank of the National Commissioner. We would have preferred the title of Director General instead of thetitle of Executive Director. The position of provincial heads is clear and will be at the rank of Chief Director.

6. 2. How Independent will be the Directorate? Civil society organisations and organised labour have been interested to see whether the proposed legislation provides the Directorate the independence it requires to fulfill its mandate. However, our reading of the Bill suggests that while the Directorate will be independent from the SAPS it will highly dependent on the Secretariat. It is therefore debatable whether the Directorate will not be compromised by perception of interference from the ministry. The Ginwala Commission provides an example of how ministries and the minister can interfere with investigations involving senior public service officials.Our view is that it seems the Directorate will be heavily dependent on the approval of the Secretariat. The requirement of the Directorate to report to the Secretariat on its investigations on an ongoing basis in Section 9(1) is vague and will require to be clarified. While we support that the Directorate to work independently we would have preferred that it reports directly to the Minister who has the political authority and legitimacy to ensue that it was credible and effective. 3. Interface with the SAPS While we support the independence status that the proposed Directorate will have we believe that there should be provision made in the Act that will allow the Directorate and the SAPS to interact. Given that the Directorate is outside of the SAPS, it is unlikely that it will fully understand the root causes that lead to misconduct. A level of interaction with police managers will also assist in identifying problems that the Directorate may be experiencing in conducting its investigations. The Minister should ensure that the SAPS works well and cooperated with the Directorate.

7. The Appointment of Investigators • The rationale is not clear as to why investigators will have to wait three months before they can start working. Our view is that once an investigator has received his or her security clearance and his or her appointment duly confirmed that investigator should immediately commence with his or her duties. We think that any unjustified delays will not assist in dealing with backlogs of investigating complaints and cases brought to the Directorate. Scope of the Mandate of the Directorate We welcome the expansion of the scope of the mandate and cases that can be brought to the proposed Directorate against police officers. Our view is that the Bill does not extend the powers of the Directorate complaints against abuse of power, or serious assaults which do not qualify as torture and do not result in death. We are also concerned that the Bill does not deal with protocols that will need to be followed to ensure that there is no stand off between the SAPS and the investigators from the Directorate. We believe that such protocols are essential to ensure cooperation and greater efficiency in the investigations. The Legislation will also need to be clear in terms of what cases the Directorate can investigate. It is not clear what ‘systematic corruption’ refers to in the Bill. In other words, will the Directorate entitled to investigate a single incident of corruption or there must a series of complaints against a police officer before the Directorate can

8. Internal Integrity MeasuresWhile we support any measures to address integrity issues in the Directorate and ensure that investigators uphold high standards of integrity, our view is that all measures put in place must respect human rights and be consistent with the provisions in our Constitution. We are concerned that some of the provisions provided under Integrity Measures may be seen as intrusive, unjustifiable, unconstitutional and violating fundamental human and labour rights as well as infringing on human dignity. Unionization of Employees in the Directorate We would like to see all employees in the Directorate allowed to join organised labour organisations. In South Africa today most public service employees are organised and enjoy labour rights and bargaining for better salaries and working conditions. Our view is that the Act should clearly provide that provision. Since investigators salaries are governed in terms of the Police Act, we would like to propose that they be allowed to join police unions so as to be part of the Security Service Sector Bargaining Council (SSSBC).

9. SAPU SUBMISSION Conclusion We hope that the committee will consider the issues that we have raised so that the proposed Directorate can be efficient and effective in addressing problems of misconduct in the SAPS. We are also mindful that the Directorate will find it difficult to carry on with their investigations without the support and cooperation of the SAPS management and organized labour. While we do not support misconduct of any kind, we would like to see what ever investigation being carried out with integrity and respectful of the rights of those being investigated.

10. SAPU SUBMISSION THANK YOU ?