Push for devolution of Western Cape policing powers may have pragmatic footing but may run into legal trouble

The newly formed ‘Western Cape Devolution Working Group’ will face considerable political as well as legal hurdles. The fact that some political parties and ‘civic organisations’ who form part of this group are tainted by racism or led by cranks will not help.

Earlier this week, it was announced that a “Western Cape Devolution Working Group” (WCDWG) had been formed, and that its initial focus would be on working towards the “devolution of policing powers to the province”, as well as the adoption of national legislation to provide for Premiers to call provincial referendums.

Its inaugural meeting was attended by representatives from the Democratic Alliance (DA), Freedom Front Plus (VF Plus), African Christian Democratic Party (ACDP), Cape Independence Party (CIP), AfriForum, Cape Independence Advocacy Group (Ciag), Action Society, Cape Forum, Saai, and several legal experts. The inclusion of the CIP and AfriForum in the group will raise eyebrows.

The CIP falsely claims on its website that section 235 of the South African Constitution “recognises and guarantees” the right of self-determination for recognised communities “within a territorial entity in the Republic”. But section 235 states that the “South African people as a whole” enjoys a right to self-determination, and leaves it to the national legislature to decide whether to recognise limited self-determination within the existing borders of the country. If the national legislature declines to pass such legislation, an aggrieved community will have no legal recourse, as they enjoy no rights in terms of section 235.

AfriForum has been harshly criticised by the Constitutional Court for advancing exclusionary claims rooted in racism, with justice Froneman remarking AfriForum and Another v University of the Free State, that AfriForum creates “the impression of racism, for which it had itself to blame”. And as we all know, the ACDP are avowedly homophobic and has endorsed crackpot ideas about Covid-19 vaccines.

These are not the kind of organisations you would want to associate with if you need to convince the national government on a political level to devolve policing powers to your province. To understand why this may be important, let me turn to the two issues the WCDWG aim to focus on.

Referendums

Section 127(2)(f) of the Constitution authorises the Premier of a province to call “a referendum in the province in accordance with national legislation”. (Section 37(2)(f) of the Western Cape Constitution contains a similar provision.) Currently, the Referendums Act 108, 1983 only allows the “State President” to call a referendum. The Act obviously needs to be amended (or replaced with a new Act) to give effect to section 127(2)(f) of the Constitution. It might take a while, but the WCDWG is likely to win this fight relatively easily.

Of course, referendums are not legally binding, although it could be politically difficult for a government to ignore the outcome of a referendum it had called itself. But when a provincial referendum deals with a matter that only the national executive and legislature is authorised to deal with, there will be little or no political cost to them when they ignore its outcome — as it is likely to do in the event that Western Cape voters endorse the devolution of policing powers to the province in a provincial referendum.

While the Western Cape government could use a provincial referendum to shore up its electoral support in the province, it will almost certainly have no other discernible impact.

Devolution of policing powers to the province

There are both principled and practical reasons to justify the devolution of police powers to individual provinces that might have the capacity to improve the quality of policing in that province. Devolving such powers to provinces, and thus closer to where voters live, could (in theory) enhance democratic accountability. As crime patterns differ between provinces, it might also make practical sense to devolve policing to provinces. But there are currently significant legal and political obstacles to any devolution of police powers to the Western Cape Government, which means it is unlikely to happen in the foreseeable future.

In terms of the South African Constitution, provinces currently have no control over the policing function. As the Constitutional Court explained in Minister of Police v Premier of the Western Cape, the Constitution “makes it plain that policing is a national competence”, and that “political responsibility for policing vests in” the Minister of Police, who “must set the national policing policy after hearing out provincial governments on the policing needs and priorities of provinces”. The President appoints the national police Commissioner and he or she has the power to “control and manage the police service in accordance with the national policing policy” and the directions of the Minister of Police.

Thus, according to the Court, the Constitution does “not prescribe any powers or functions to be exercised by the province independent of” the Minister of Police and the National Commissioner of Police.

While provinces have no control over the policing function, the Constitutional Court did point out in Minister of Police v Premier of the Western Cape that provinces have “a legitimate interest that its residents are shielded from crime and that they enjoy the protection of effective, efficient and visible policing”. However, the power of a provincial executive in relation to policing is “limited to the monitoring, overseeing and liaising functions set out in section 206(3) of the Constitution”, and having a say in the appointment of the relevant provincial Commissioner of Police.

The functions of a province in relation to policing are further elaborated on in section 207(5) and (6) of the Constitution, which does not provide any scope for a province exercising powers over or controlling the policing function, but does provide it with an oversight and accountability role. The Court explained it in “plain language” as follows:

The provincial commissioner is required to account to the provincial legislature on an annual basis on the state of policing in the province. The provincial executive has further recourse in keeping the provincial commissioner accountable to it. Its concurrence is required when the Commissioner appoints a provincial commissioner. In turn, should the provincial executive lose confidence in her or him, it may seek “the removal or transfer of, or disciplinary action against, that commissioner.

But this does not provide any legal basis for the devolution of police powers to one or more provinces. One suggestion being made is that section 99 of the Constitution could be used to effect some form of devolution of policing powers to provinces. This is so because the section allows cabinet ministers to “assign any power or function that is to be exercised or performed in terms of an Act of Parliament to a member of a provincial Executive Council or to a Municipal Council”.

However, section 99 might not do the trick as there is a significant constitutional hurdle standing in the way of any significant devolution of police powers to a province. As the Constitution explicitly assigns political responsibility for policing to the Minister of Police, a constitutional amendment would probably be required to allow a province to take over some or all responsibilities for policing in that province. Neither the legislature nor the Minister of Police can delegate powers specifically assigned to the President or to a Minister by the Constitution, through ordinary legislation or ministerial assignment.

The Minister would thus not be able to rely on section 99 of the Constitution to assign powers to the provincial executive, because this would, in effect, amount to an amendment of the Constitution by stealth. Just as the President would not be able to rely on section 99 to assign the power to appoint the Chief Justice or ambassadors to the Premier of the Western Cape, the Minister of Police cannot assign his constitutionally entrenched powers to a provincial MEC (MECs are referred to as “Provincial Ministers” in the Western Cape Constitution).

If one assumes that some limited police powers could nevertheless be devolved to a provincial executive short of handing political responsibility for the police in the province over to the relevant provincial MEC, such an assignment can only be done in terms of an agreement between the Minister and the relevant MEC. Moreover, section 99(b) further stipulates that any assignment must be “consistent with the Act of Parliament in terms of which the relevant power or function is exercised or performed”. In other words, a cabinet minister cannot undo the will of the legislature by assigning powers to the relevant MEC which the legislation reserves for the Minister of Police or national Police Commissioner.

Obviously, even a limited devolution of police power would require the support of the Minister of Police and may require amendment of the South African Police Service Act 1995. For as long as the ANC governs at a national level, such support will not be forthcoming. Of course, if the current government is voted out of office or if it is forced to form a coalition with other parties, the political dynamics around this issue might change.

But even then, political considerations will loom large. The more closely the demand to devolve police powers are tied in the public imagination to the interests of racists and crackpots, the more politically costly it would become for any government to agree to any form of devolution. This is why serious people who favour some form of devolution might — even if only for pragmatic reasons — worry about the current composition of the WCDWG.

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