Constitutional Hill

Challenging IPID’s appointment: Always a bridesmaid, never a McBride

This week a Parliamentary Committee endorsed the appointment of Robert McBride as the new head of the Independent Police Investigate Directorate (IPID). There was a predictable outcry from opposition parties. The DA even threatened to challenge McBride’s appointment in court. But a legal challenge to McBride’s appointment will almost certainly fail.

The South African Police Service (SAPS) is morphing back into a violent, sometimes murderous, and seemingly lawless force that poses a grave danger to ordinary South Africans.

IPID – formed to investigate allegations of police criminality and lawlessness and to enhance accountability and transparency by the SAPS – has so far been unable to arrest the increasing lawlessness within the SAPS.

IPID has a legal duty to investigate a wide range of criminal offences allegedly perpetrated by members of the police, including murder, culpable homicide, rape, torture, assault and corruption.

1070596_888198(Photo: Robert McBride, right, then Ekurhuleni metro police chief, at a Christmas braai he attended before crashing his official vehicle in 2006.)

After an investigation the head of IPID must refer criminal offences revealed as a result of an investigation, to the National Prosecuting Authority for criminal prosecution. The head of IPID must also refer complaints regarding disciplinary matters to the National Commissioner and where appropriate, the relevant Provincial Commissioner.

It’s 2012/13 Annual Report indicates that in the year under review IPID investigated 6,728 complaints against members of the police, including 275 cases of deaths in police custody, 431 cases of deaths as a result of police action, 141 cases of rape by police officers and 50 cases of torture.

During the year 545 cases were referred to the NPA for criminal prosecution after completion of the IPID investigations, 384 of these being for assault. A total of 57 criminal convictions were secured, 27 for deaths as a result of police action, 11 for assaults, and two for corruption. This means that far less than 10% of complaints were referred to the NPA for prosecution and that less than 10% of these referrals ended in successful prosecutions.

Although some cases may still have been pending, the figures suggest that of the almost 7,000 complaints investigated less than 100 had ended up in conviction.

In the year under review IPID also made recommendations that disciplinary action be taken against 1,040 members of the SAPS and the Metro Police. However, in the year, only 84 disciplinary convictions were secured, 28 for assault, 14 for misconduct, and 13 for rape. In only 20 of these cases were police officers dismissed from the SAPS.

Even assuming that some disciplinary cases were continuing after the end of the year under review, the figures suggest that IPID has had an extremely modest impact on weeding out “bad apples” within the Police.

The question is whether – in the absence of strong leadership from the top of SAPS and from the political leadership – IPID will ever be able to halt the culture of impunity within the police service.

The lack of strong political leadership is perhaps not the only reason for IPID’s lack of success. IPID has been without a head for more than a year. Moreover, its previous head, Francois Beukman, lacked the political influence, general standing and clout to have made a decisive difference.

Beukman used to be a National Party apparatchik before morphing seamlessly into an ANC apparatchik after the merger between the ANC and the New National Party. Based on my own interactions with him at University, I would not have thought him a sufficiently principled person with the requisite reliability and trustworthiness to lead an organisation like IPID.

Which brings us to the appointment of Robert McBride as the head of IPID. Judging by newspaper reports, McBride is thin-skinned and has an abrasive personality. He has also faced several allegations of involvement in criminal activity, but do not have any conviction for any of these.

Like Beukman, the previous head of IPID, he is also very close to the governing party, which casts doubt on his ability to make necessary decisions that might embarrass the government of the day. For these reasons, I believe that the appointment is not the best possible appointment that could have been made.

I might, of course, be proven wrong about the wisdom of the appointment. McBride’s abrasiveness and his obvious political clout may help to embolden IPID to “go after” the ever-increasing number of so called rogue cops within the SAPS. IPID surely needs a strong-willed leader to improve its performance and to help end the culture of impunity in the SAPS.

But my guess is that many people who are horrified by McBride’s appointment, are motivated by other, completely irrelevant, considerations.

People who believe in the moral equivalence of acts committed in pursuit of the struggle against Apartheid and acts committed to defend and protect the minority Apartheid regime, will invariably point out that McBride was involved in the planting of a bomb outside Magoo’s Bar, which killed three people and injured 69 others.

However, I would argue that such a belief in the moral equivalence between those who fought Apartheid and those who enforced it is itself morally despicable. One side was fighting injustice. The other side was fighting to protect injustice.

Judging McBride for his involvement in the Magoo’s Bar incident is a bit like judging Winston Churchill for his involvement in the bombing of Dresden or judging Harry Truman for ordering the bombing of Hiroshima and Nagasaki. (Although it must be said that this analogy is unflattering to McBride – in the latter two examples, hundreds of thousands of people were killed, while only three people were killed in the Magoo’s Bar bomb.)

Unless you believe the Apartheid state was a legitimate state and that any illegal acts of resistance against it was illegitimate, you cannot judge McBride for his involvement in this case. In any event, like many others, McBride received amnesty from the Truth and Reconciliation Commission for his actions, which wiped the slate clean.

The question remains whether the appointment could be set aside by a court of law. I suspect that it would be impossible to convince any court to do so.

In terms of the IPID Act the Minister must nominate a “suitably qualified person” for appointment to head IPID. The relevant Parliamentary Committee must confirm or reject such a nomination and if he is confirmed the President must appoint him.

Unlike the National Prosecuting Authority Act, which requires the National Director of Public Prosecutions to have a legal degree and to be “a fit and proper person, with due regard to his or her experience, conscientiousness and integrity,” the IPID Act is silent on what would constitute a “suitably qualified person”. This means that the IPID legislation (rightly or wrongly) provides a wide political discretion to the Minister for the appointment of the head of IPID.

The appointment could be attacked on the basis of irrationality. But as the Constitutional Court has stated many times, a decision is not irrational merely because it is one with which the court does not agree. Neither would a decision be irrational because it happens to be an unwise decision. More would be required.

In the Simelane judgment the court found that given the need to appoint a fit and proper person with integrity and given the findings of the Ginwala Inquiry against Simelane, the president had a duty at least had to look into the allegations against the appointee before appointing him.

In McBride’s case there was a far wider discretion while the Minister claims to have followed a far more thorough process before nominating McBride for the post. After all, the Minister of Police indicated that a shortlisting process as well as an interviewing process took place to select the preferred candidate.

To convince a court of the irrationality of the decision to appoint McBride as the head of IPID would therefore be very difficult, if not impossible. Any party who approaches the court with such a request would therefore almost certainly be wasting their money.

  • 1Zoo1

    You just refuse to get it don’t you.

    The appointment of McBride is to protect the cops more than his predecessor. It is to be staggeringly underwhelming in his job. Maybe have one or two high profile cases to cover-up for the obvious purpose of his appointment. With the passing of the Dangerous Weapons Act, the authority of the police to arrest and harass is being increased all the time.

    The purpose is to reduce resistance to the police and increase their authority and dominance – to cow the populace in the presence of the SAPS. It is not to bolster the SAPS as the social service that it is.

    One day, you’ll connect the dots too.

    Anyway, what is the point of these rants, except maybe getting it off our chests? The electorate is no doubt going to vote majority ANC next election and all this will just be hot air. I don’t have the time or inclination to fight a dumb majority anymore.

  • Mike Golby

    I certainly don’t get the point of your rant. Where, in the above entry, does Pierre speculate on the reasons or motives behind McBride’s appointment?

    Given your vehement opposition to whatever you believe to have been said above, where does he espouse a belief that McBride’s appointment is just what’s needed to deliver a lean, mean and clean crime-fighting machine to all South Africans?

    If I were you, I’d stop smoking that stuff and let the dots connect themselves.

  • 1Zoo1

    Read it again, he speculates alright!

  • Mike Golby

    Not exactly the most intelligent or articulate response to my questions. Care to answer them? If not, don’t.

  • 1Zoo1

    Because you lack the capacity

    He speculates:

    “Like Beukman, the previous head of IPID, he is also very close to the
    governing party, which casts doubt on his ability to make necessary
    decisions that might embarrass the government of the day. For these
    reasons, I believe that the appointment is not the best possible
    appointment that could have been made.”

    There are more bits but you can find them.

    I responded to Prof’s post because the Professor is not seeing the bigger picture. Its my opinion.

    This is not an isolated appointment

  • Pierre de Vos

    Thank you for the responses. I was hoping the points made in the article were clear: (1) At present IPID is not effective; (2) The decision to appoint McBride is bad; (3) Challenging this in court will not be successful. (4) Given these stark realities of IPID’s failure, the outcry about McBride is perhaps about more than his suitability for the post but also about his involvement in the struggle.

    I do understand that people do not always like complex arguments in which things are presented as not being either black or white (so to speak). Nuance, strategic reasoning, consideration of context are all the enemy of blind moral outrage. I am trying to do more of the former and less of the latter.

  • Pingback: Die akademiese skollie Pierre de Vos | praag.co.za()

  • 1Zoo1

    At last!

    1) Agreed
    2) Agreed
    3) Agreed
    4) Agreed on the first bit. There is deep animosity towards McBride and it is very understandable. He bombed a bar, not a strategic outpost, power plant or security establishment. He killed strategically irrelevant people. It was simply an act of terror, not of struggle. It is doubtful he even had authority for the attack. The Nats had already made significant concessions and this attack was unnecessary.

    This was not a total war. If it was, we would have had a proper race war. Possibly even a “Final Solution”.

    It is perfectly possible to commit war crimes in pursuit of a good cause. For example, the ANC emptied schools and sent the kids against the sides of Casspirs. That is the use of child soldiers, and is a war crime no matter the circumstances. We’re still suffering the consequences of such misguided actions.

    All I’m saying is its more complicated than good v evil. Very few people came out clean. It is best we acknowledge all that went wrong, even when trying to get it right. Otherwise we never learn, and we never understand.

  • ANCBASHER

    My problem with Mcbride stems more from his recent actions, such as the Mozambique gun running incident, although I don’t think Magoo’s was his finest hour. Please someone explain what happened there. And of course the drunk driving incident. The false doctors letter shows an incredible lack of integrity. How he won his appeal I will never understand.