Media releasePolice oversight regime is constitutionally inadequate
5 November 2018
New research by the Rule of Law Project has revealed that the Independent Police Investigative Directorate Act (IPID Act) contravenes certain notions of the Rule of Law, as contained in section 1(c) of the Constitution, as well as the provisions in the Constitution that require an independent oversight entity for the police.
Section 206(6) of the Constitution obliges Parliament to establish an independent body that investigates alleged misconduct or crime committed by the police. Parliament ostensibly did this by forming the Independent Police Investigative Directorate (IPID) by way of the IPID Act.
The Act, however, empowers the Minister of Police not only to appoint the Executive Director of the IPID, but also to discipline the incumbents in cases of their misconduct or inability to perform their duties.
According to Project senior researcher Gary Moore, because the IPID Act authorises the Minister to appoint the Executive Director of the IPID, the constitutional guarantee of independence falls by the wayside. This is because, having the power of appointment, the Minister is given undue control over the Executive Director.
The perception of independence, too, is paramount. Says Moore:
“If Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet an objective benchmark for independence, because public confidence that an institution is independent is a component of, or constitutive of, its independence.”
The Constitutional Court rightly held in the McBride case that the provisions empowering the Minister to dismiss the Executive Director for misconduct or apparent incapacity are unconstitutional. Thus, on 6 September 2016, the Court ordered Parliament to rectify the shortcomings in the IPID Act within 24 months. It has now been 25 months since the order, and, while progress has been made toward bringing the IPID Act in line with the Constitution, Parliament has missed its deadline. Moore notes, “Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the Rule of Law.”
Project legal researcher, Martin van Staden, described these provisions of the IPID Act thus:
“It can be said that provisions like this are part of the machinery of State Capture; that is, those laws that centralise power in the hands of a select few politically-appointed individuals. Because of the transient nature of politics, it is thus a machinery of personalities, rather than institutions. Putting oversight of the police in the hands of someone effectively owing allegiance to the individual who happens to be Minister of Police can only lead to more mistrust in the system.”
The Project thus enjoins Parliament to speed up its rectification process and bring the IPID Act into accordance with the imperatives of the Rule of Law and the Constitution in a timely fashion.
The Rule of Law Project was founded in 2016 with the aim of giving substance to section 1(c) of the Constitution of the Republic of South Africa, which provides that South Africa is founded upon the supremacy of the Constitution and the Rule of Law. This is done through legal analyses and consultation. The Project is under the chairmanship of former Supreme Court judge Rex van Schalkwyk and consists of a Board of Advisors composed of legal and constitutional experts. The Project is an initiative of the Free Market Foundation.