Police minister Bheki Cele has introduced a new bill to parliament which seeks to entrench the institutional and operational independence of the Independent Police Investigative Directorate (Ipid).
The Independent Police Investigative Directorate Amendment Bill also provides a more transparent and open process for the appointment of the Ipid executive director, which is fundamental to its independence.
In 2016, the Constitutional Court declared the Ipid must be seen as independent to ensure it undertakes its task as a police watchdog without interference from the police minister.
The court confirmed an earlier high court ruling that some sections of the Ipid Act were invalid to the extent that they authorised the police minister to suspend‚ take any disciplinary steps or remove the Ipid head from office. These were partly addressed in amendments enacted in 2019.
The new bill, introduced last Thursday, deals with the rest of the court’s recommendations concerning operational independence.
The bill proposes the Ipid executive director be appointed by the police minister with the concurrence of cabinet, for a non-renewable period of not less than seven years and not longer than 10.
The minister would thereafter report the appointment of the executive director to parliament within 14 days.
The bill gives effect to the “McBride judgment” in which judge Lebotsang Bosielo pronounced that the public should have confidence that the Ipid would be able, without undue political interference, to investigate complaints against the police fearlessly and without favour or bias.
The bill seeks to broaden the executive director’s responsibilities in respect of the referral of complaints regarding disciplinary matters.
It provides for initiation of investigation by the executive director upon becoming aware of any alleged commission of an offence by a member of the SA Police Service or municipal police service, and not only upon receipt of complaints.
It also seeks to amend section 28 of the act to indicate that Ipid shall investigate allegations of commission of crimes of rape and murder by a member of SAPS or municipal police service, committed on or off duty.
Section 28(1) is further amended to provide that Ipid shall investigate allegations of assault, only if it is with intention to cause grievous bodily harm. The proposal for investigation of only serious assault allegations is informed by concerns that Ipid is inundated with minor assault allegations, which takes away time and resources which could be used to investigate more serious allegations.
The complaint of a discharge of an official firearm has been deleted, as it was thought that investigation should only be conducted if the discharge of an official firearm is linked to an allegation of attempted murder.
A new type of matter to be investigated by Ipid, which is attempted murder in relation to a discharge of an official firearm, has been inserted in the bill.
Furthermore, a provision is also made in the proposed law to mandate Ipid to initiate investigation in instances where a member of SAPS or municipal police service has allegedly committed an offence, together with a member of any other law enforcement agency or a civilian.
Provincial heads of Ipid, and certain executive authorities of SAPS and municipal police service, are also empowered to refer matters for investigation. This will no longer be the sole responsibility of the Ipid executive director.
Among the proposed amendments is a provision for a station commander and municipal manager to also refer matters for investigation to the directorate.
The bill also proposes that Ipid’s pre-employment security screening should be done by the directorate and not by the State Security Agency (SSA) as provided for in the act. It says it’s not necessary for the SSA to conduct security screening investigation, as it merely involves criminal and credit record checks.
The bill provides for the issue of a security clearance certificate by Ipid in respect of the security screening investigation.
Former Ipid executive director Robert McBride was suspended by then police minister Nathi Nhleko in March 2015, on allegations that he had covered up the alleged involvement of senior Hawks officials in the unlawful renditions of four Zimbabweans during 2010 and 2011.
McBride went to court seeking an order declaring sections of the Ipid Act invalid. The high court agreed with McBride‚ and said the sections did not provide for parliamentary oversight in relation to the suspension‚ discipline or removal of the Ipid executive director.
In a unanimous judgment, written by acting judge Lebotsang Bosielo, the Constitutional Court agreed with the high court that section 6 of the Ipid Act gave the minister enormous political powers and control over the executive director of Ipid.
“It gives the minister the power to remove the executive director of Ipid from his office without parliamentary oversight. This is antithetical to the entrenched independence of Ipid envisaged by the constitution, as it is tantamount to impermissible political management of Ipid by the minister.”
A previous amendment to the bill in 2019 took away the police minister’s authority to remove the executive authority of Ipid and gave those powers to parliament.
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