Law allowing for extension of McBride’s term of office probably unconstitutional

The fight between Robert McBride, on the one hand, and the Minister of Police and ANC MPs, on the other, about the refusal by the latter parties to renew McBride’s term as head of the Independent Police Investigative Directorate (IPID), raises interesting political and legal issues. While it remains somewhat unclear why ANC MPs have been instructed to get rid of McBride, the fight highlights several problems with the existing IPID legislation.

When Robert McBride’s was appointed as head of IPID five years ago, I criticised those who opposed his appointment on the basis of his involvement in the armed struggle against apartheid, and speculated that his “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”.

Little did I know at the time that McBride would fall out spectacularly with the Minister of Police and with governing party MPs, allegedly for asking uncomfortable questions about corruption relating to the 2017 ANC elective conference where President Cyril Ramaphosa was elected as party President.

Now McBride has approached the High Court to challenge the decision not to renew his term of office as IPID head, arguing that this decision was irrational. It’s a legal mess, made worse by the bad drafting of the IPID Act and by the fact that Parliament has not even fixed some of the unconstitutional provisions in the Act – despite being ordered to do so by the Constitutional Court in 2016.

As I will try to show below, there is at least a small possibility that a court will find that the decision not to renew McBride’s term of office was irrational and therefore unlawful. But this would be a weird outcome for the case as the provision allowing for a renewal of McBride’s term of office is almost certainly unconstitutional and invalid. It is problematic that Parliament has not yet fixed this problem – despite the fact that various court judgments have made it clear that it is problematic to allow for the renewal of an employment contract of somebody heading an independent body. Whether this tardiness is the result of ignorance or of lack of political will is not clear.

Recall that IPID was created to give effect to section 206(6) of the South African Constitution, which requires national legislation to establish an independent police complaints body. The section was probably included in the Constitution in response to the experience during the apartheid era when police abused its powers, not only torturing and sometimes murdering political opponents of the National Party regime, but also routinely torturing ordinary criminal suspects with the aim of extracting confessions from them.

IPID was therefore created as a constitutionally guaranteed independent police complaints body to protect citizens from similar abuses in the democratic era. The primary duty of IPID is to investigate any alleged misconduct or offence committed by a member of the police service.  IPID’s independence is confirmed by section 4 of the IPID Act which provides that the Directorate functions independently from the South African Police Service (SAPS). This is to ensure that IPID is able to investigate cases or complaints against the police without any fear, favour or prejudice or undue external influence.

In 2016 in the judgment of McBride v Minister of Police and Another the Constitutional Court affirmed IPID’s independence. While IPID is required to report about its activities to the Minister of Police, the Minister has no power to interfere in the operational aspects of IPID’s work. The Court explained that:

a corruption-fighting entity [like IPID] will have the requisite independence if it can be established that the ‘reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy protecting features.  Factors that might be considered in assessing the independence of an institution include security of tenure and remuneration, and the mechanisms in place for accountability and oversight.

Quoting from previous judgments dealing with the independence of the Hawks, the Constitutional Court suggested that the “threshold for satisfying independence in respect of IPID is arguably more stringent” than the requirements that apply to the Hawks “given that the Constitution expressly demands its independence”.

The Court in the McBride case therefore confirmed the unconstitutionality of a section of the IPID Act which gave too much power to the Minister to suspend and remove the Executive Director of IPID from his post, ruling that these provisions were “subversive of IPID’s institutional and functional independence”, and in effect turned the Executive Director of IPID into “a public servant subject to the political control of the Minister”.

The Constitutional Court was not asked to consider the constitutionality of section 6(3)(b) of the IPID Act, the section on which McBride now relies to argue that his term of office should have been renewed. This section states that once the appointment is confirmed “such appointment is for a term of five years, which is renewable for one additional term only”. The section is ambiguous as it is not clear whether the incumbent had a legitimate expectation to have his or her contract renewed absent extraordinary circumstances. It could be read like this, or it could be read as merely granting permission to the Minister to extend the term if the Minister so wishes.

A further but related problem is that the Act does not provide any criteria for when a renewal would be appropriate or when the Minister would be entitled not to renew the term of office. Neither does the IPID Act say much about the qualities that the Executive Director of IPID must possess. The Act merely states that “a suitably qualified person” should be appointed as head of IPID. There is no explicit requirement that the person needs to be “fit and proper”, nor that due regard should be had to his or her experience, conscientiousness and integrity when selecting him or her for appointment. (The latter requirements are a prerequisite for the appointment of the head of the Hawks.)

Section 4(2) of the IPID Act does state that “[e]ach organ of state must assist the Directorate to maintain its impartiality and to perform its functions effectively”, while the Constitutional Court also ruled in the McBride judgment that (until the Act was fixed by Parliament) the National Assembly (NA) could only remove the head of IPID on the grounds of incompetence, misconduct or incapacity after a finding to that effect was made by a committee of the NA.

As the Constitutional Court has ruled that the threshold for satisfying the independence in respect of IPID is arguably more stringent than the requirements that apply to the Hawks, one could argue that a failure to renew McBride’s contract would only be rational if there was either a finding by the NA that he was no longer a fit and proper person, or if there was a finding that he was incompetent, guilty of misconduct or suffered from incapacity.

McBride and his lawyers may well argue that the decision not to renew his contract would only be rational if the NA can show that it conducted a proper investigation to establish that he was no longer fit to serve as IPID head. Although a failure to read the Act in this way may well render the Act unconstitutional, it is unclear whether a court will agree to read such requirements into the Act. Only time will tell how the court will rule on the rationality argument.

However, there is a far bigger problem with the renewal of McBride’s term as head of IPID. The problem is that section 6(3)(b) of the IPID Act, which allows for a renewal of the IPID head’s contract, may well be unconstitutional.

In Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others the Constitutional Court noted that it had previously ruled with reference to the head of the Hawks that:

[a] renewable term of office, in contradistinction to a non-renewable term, heightens the risk that the office-holder may be vulnerable to political and other pressures.

While dealing with conditions of service, the Court remarked that “the lack of employment security, including the existence of renewable terms of office . . . are incompatible with adequate independence.” The problem with providing for a renewal of a contract of an individual who is required to be independent was explained as follows in the Helen Suzman judgment:

Renewal invites a favour-seeking disposition from the incumbent whose age and situation might point to the likelihood of renewal.  It beckons to the official to adjust her approach to the enormous and sensitive responsibilities of her office with regard to the preferences of the one who wields the discretionary power to renew or not to renew the term of office. No holder of this position of high responsibility should be exposed to the temptation to ‘behave’ herself in anticipation of renewal.

This means that section 6(3)(b) of the IPID Act on which McBride is relying is almost certainly unconstitutional as the section is incompatible with the independence necessary for the IPID head to be faithful to the IPID mandate.

The Executive and Parliament should long ago have fixed these obvious problems with the IPID Act, perhaps providing for the appointment of the head of IPID for a non-renewable fixed term of between seven and nine years. If it had done so, the current messy fight between McBride and the Minister of Police and ANC MPs of Parliament could have been avoided.

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