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1. Strengthening the Civilian Oversight of the Police Bills Submission by The Institute for Security Studies to the Parliamentary Portfolio Committee on Police 4 August 2010 www.issafrica.org

2. Overview Introduction to the ISS and the CJP The Independent Police Investigative Directorate Bill The Civilian Secretariat of the Police Service Bill

3. Introduction Institute for Security Studies (ISS) is an African non-governmental policy research institute. Our work is aimed at contributing to a stable and peaceful Africa characterised by sustainable development, human rights, the rule of law, democracy and collaborative security. The Crime and Justice Programme of the ISS works to inform and influence policy and public discourse on crime, its prevention and criminal justice by conducting research, analysing policy, disseminating information and providing expertise as a contribution towards a safer and secure society.

4. The Independent Police Investigative Directorate Bill Submissions will focus on the following aspects: • Matters that the IPIS must investigate • Matters that the IPID may investigate • Police reporting on the implementation of IPID recommendations. • Appointment of the Executive Director

5. Matters the IPID must Investigate Reporting cases of deaths, rape & torture. by the police to the IPID. Proposed additional clause: “Any incidents of death as a result of police action or while in police custody and all allegations of rape or torture as described in this Act, that comes to the attention of a police official must immediately be reported to the IPID.”

6. Matters the IPID must Investigate Ensuring police cooperation with the IPID. Proposed additional clause:“All policing agencies whose members are subject to an investigation by the Directorate must provide unfettered cooperation. This includes but is not limited to, ensuring that all information relevant to the case and requests for identification parades is acceded to within 48 hours of a request made by the Directorate”.

7. Matters the IPID must Investigate Defining torture in the legislation. Following definition recommended (UNCAT Protocol): “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is a suspected of committing, or intimidating or coercing him or a third person, for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from inherent or incidental lawful actions.”

8. Matters the IPID must Investigate Receiving allegations of torture. Following amendment to clause 25 (1) (e) recommended:“Any complaint or allegation of torture committed by a police official which is received from any source.”

9. Matters the IPID must Investigate IPID capacity to investigate death, torture & rape. Following additional clause recommended: “The Minister must ensure that the Directorate has the specific resources required to adequately investigate deaths, rape and torture by police or in police custody.”

10. Matters the IPID must Investigate Prioritising the prosecution of cases investigated by the IPID. Following amendment to clause 16 (c) dealing with the establishment of the Consultative Forum to include: “a senior representative appointed by the National Director of Public Prosecutions to represent the National Prosecuting Authority.”

11. Matters the IPID may Investigate Addressing systemic problems • It may be instructive to consider the relationship between a systemic organisational challenge confronting a policing agency and the abusive behaviour that occurs as a result. For example, flawed recruitment practices, inadequate training, poor management and a weak internal disciplinary system would be the types of systemic problems that could result in high levels of corruption, misconduct and abusive behaviour on the part of police officials. • To be able to recommend appropriate interventions to solve the systemic problems confronting the organisation, the IPID would be required to investigate a range of issues beyond the specific allegations of corruption or criminality. This means that the IPID would have to develop the capacity to assess a variety of organisational policies, processes and systems, and at the very least management practices.

12. Matters the IPID may Investigate Tackling police corruption As with other systemic challenges facing policing organisations, corruption cannot be substantially addressed by external oversight agencies. International experience demonstrates that to effectively reduce police corruption, the Chief of the Police and senior police management must take primary and ongoing responsibility for driving anti-corruption strategies The best that the IPID will be able to do is support anti-corruption efforts by police management. Even then, responding to allegations will never be sufficient. Capacity needs to be established to undertake proactive integrity testing. While IPID investigators may be subject to this due to this legislation, other police officials will not be.

13. Police reporting on the implementation of the IPID recommendations. • Upon the receipt of written recommendations by the directorate, the police agency concerned has 30 days within which to report to the National Secretary of Police and the Executive Director of the Directorate in writing on the extent to which the recommendations have been implemented. • If the Head of the police agency to whom the recommendations are addressed is of the opinion that there are good reasons why they should not institute the recommendations, written reasons, including possible alternative action must be sent to Executive Director within 30 days for consideration by the Management Committee. • If the Management Committee of the Directorate does not accept the reasons given by the police management as to why certain recommendations should not be implemented, and/or if the proposed alternative action is not acceptable to the IPID, the matter may be referred to the Minister for a final decision.

14. Appointment of the Executive Director To strengthen the impartiality and independence of the Executive Director of the IDIP and the public perception thereof, we propose the following amendment to clause 5 (1) : The Minister must, subject to the laws governing the public service, appoint the Executive Director following consultation with the parliamentary committee during which public submissions with respect to the shortlisted candidates should be allowed.

15. The Civilian Secretariat of the Police Service Bill Submissions will focus on the following aspects: • Function in relation to police misconduct • Function in relation to complaints against the police • Function in relation to community safety and police relations • Provincial Secretariats investigative function • Cooperation & coordination

16. Secretariats function in relation to police misconduct Section 5 (1) (a) states that the Secretariat must “monitor the conduct of members, and where necessary recommend corrective measures.” It is questionable for example, whether it will be possible for the Secretariat to monitor the conduct of the approximately 200 000 members of the South African Police Service (SAPS) that will be employed by 2011. Moreover, the task of monitoring the conduct of police members and taking corrective measures where necessary is the direct responsibility of line managers throughout the SAPS. It is therefore proposed that Section 5 (1) (a) is amended to read as follows:Regularly assess the extent to which the SAPS has adequate policies and effective systems for monitoring the conduct of police officials and is able to apply corrective measures in a fair, consistent and timely manner wherever necessary

17. Secretariats function in relation to complaints against the police Given that the IPID will no longer be an agency whose primary task is to receive ‘complaints’ against police officials, it is important that such capacity is developed within the police. The best possible way that police agencies can become responsive and accountable to communities is when there is an effective, easily accessible complaints mechanism managed by the police agency itself that is able to respond appropriately to complaints against police officials from civilians. It is therefore proposed that an additional clause is inserted in section 5 that states that the Secretariat must, for purposes of achieving its objectives: Assess and monitor the extent to whichSAPS has adequate policies and effective systems and mechanisms for receiving, processing, analysing and responding to complaints against police members.

18. Function in relation to community safety and police relations Section 5 (2) (a), (ii), (iii), (iv) and (v) all refer to the role of the Secretariat in facilitating interaction with citizens, enhancing the quality and accessibility of safety programmes and strengthening national dialogue on safety and crime prevention. However without regular and up-to-date crime statistics it is not possible for communities to effectively identify and respond to specific emerging crime challenges. Furthermore, it is not possible for communities to assess the actual impact of local crime prevention initiatives. It is therefore recommended that an additional clause is added along the following lines:The Secretariat must facilitate access to any information held by the SAPS or other agencies that will improve public understanding of crime at a national, provincial or local level so as to strengthen crime prevention initiatives

19. Provincial Secretariats investigative function Section 14 (2) (a) (iii) calls on provincial secretariats to establish the capacity to “evaluate and investigate police conduct in the province.” If the Provincial Secretariats are to be given responsibilities for “investigating police conduct” this may lead to a duplication of responsibilities with the independent Police Investigative Directorate (IDIP). Moreover, the Bill does not provide the Provincial Secretariats with the necessary powers or safeguards to be able to effectively investigate police conduct (i.e. as those provided for in section 24 of the IPID Bill). If the committee believe that the Provincial Secretariats should be able to investigate police conduct, that this legislation provide guidance as to what types of conduct must or may be investigated and that these are clearly distinguished from the types of cases that the IDIP will investigate, and that provision be made for the necessary powers and safeguards as is found in the IPID Bill.

20. Coordination and Cooperation To ensure that the National Secretariat is able to achieve its desired objectives in relation to coordination and cooperation with regards to matters involving the SAPS, (as presented in section 29 (2)), it is proposed that this legislation provide clear guidelines to the policing agency for reporting to the National and Provincial Secretariat. For example, “A police agency has 10 working days from the receipt of a request from the National or Provincial Secretariat to respond to any requests for information on the implementation of recommendations made by the Independent Police Investigative Directorate (IPID).” To ensure further cooperation between the National and Provincial Secretariats, the Independent Police Investigative Directorate, the South African Police Service and Metropolitan Police Departments, it is recommended that this legislation provide for the establishment of a National Police Coordinating Forum.

21. Conclusion The ISS thanks the committee for the opportunity to make this submission. We are willing to assist the committee further in any way we can and wish the committee all the best in its deliberations on these important pieces of legislation. For inquiries contact: Gareth NewhamProgramme HeadCrime and Justice Programme Tel: (012) 346-9500 Email: gnewham@issafrica.org Website: www.issafrica.org