As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The decision by the Constitutional Court earlier this week to declare invalid several legislative provisions because these empowered the Minister of Police to suspend and fire the head of the Independent Police Investigative Directorate (IPID) at will, raises questions about the role IPID must ideally play in protecting the public against police abuses. It also raises questions about whether its Executive Director (currently still Robert McBride) could launch an investigation into the Hawks for its abuse of power in the Pravin Gordhan saga.
Parliament created the Independent Police Investigative Directorate (IPID) to ensure effective independent oversight of the South African Police Service and Municipal Police Services. This is provided for by section 206(6) of the South African Constitution. IPID has broad powers and is tasked with investigating allegations of misconduct of, or offence committed by, all members of the police service.
IPID must therefore help to protect the public from police brutality and from the abuse of power by members of the police service. There are two reasons why IPID (and not the police) should investigate allegations of unlawful killing, torture and rape and other abuses of power by members of the police.
First, it is unlikely that members of the police will impartially and diligently investigate crimes allegedly committed by their own colleagues – unless they have a political axe to grind with those colleagues. This is not a uniquely South African phenomenon. Cops across the world are reluctant to investigate their colleagues and often go out of their way to protect them from criminal prosecution. (The fact that no member of the police has yet been charged with the murder of any of the 34 people massacred at Marikana illustrates this point very clearly.)
Second, as the South African police service has always been a highly politicised body (and to some degree remains so today), it is unlikely that the cops will pursue allegations of abuse of power by fellow police officers in cases where those alleged abuses relate to politically charged matters and where the police officers are doing the bidding of powerful government aligned politicians or business people.
It is for this reason that the Constitution imposed a duty on Parliament to create a body (now called IPID) entirely independent from the police, to investigate allegations of criminal offenses and abuses of power committed by members of the police service.
In order to fulfil this task effectively and credibly, IPID needs to be independent from both the police (which it now formally is) and from the executive branch of government. It must be independent and be seen to be independent from either in order to retain the trust of the public. If members of the public do not trust IPID to investigate police abuses in an impartial and independent manner, they would be hesitant to approach the body with complaints against the police.
This notion that public trust is vital for an independent body to do its job was mooted by the Constitutional Court in the judgment of Helen Suzman Foundation v President of the Republic of South Africa and Others, where it stated:
This Court has indicated that ‘the appearance or perception of independence plays an important role’ in evaluating whether independence in fact exists. . . . By applying this criterion we do not mean to impose on Parliament the obligation to create an agency with a measure of independence appropriate to the judiciary. We say merely that public confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity’s autonomy-protecting features is important to determining whether it has the requisite degree of independence.
In recent years some members of the police have been involved in shocking acts of unlawful violence (like the Marikana massacre, to mention one) and of apparent abuses of power with the aim of advancing partisan political ends (like the Hawks “investigation” of Finance Minister Pravin Gordhan). But because IPID was under the direct political control of the Minister of Police, few South Africans would have trusted IPID to pursue these alleged abuses with the necessary vigour and honesty.
It is for this reason that the Constitutional Court judgment in McBride v Minister of Police and Another is potentially significant.
In a crisply written judgment by acting justice Bosielo the Constitutional Court, quoting from its previous judgments on the Hawks, affirmed that IPID needed to enjoy “sufficient structural and operational autonomy so as to shield it from undue political influence.”
The Court noted that a corruption-fighting entity – just 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.
Using this test, the Court found that the legislation fell far short of creating an independent body that will be able to investigate abuses of power by police officers in an impartial and fearless manner.
The IPID Act gave the Minister enormous political power and control over the Executive Director of IPID. One of the most problematic provisions gave the Minister the power to remove the Executive Director of IPID from his office without parliamentary oversight. This clearly infringed on the independence of IPID, which meant that the Court had no choice but to invalidate these provisions, noting:
To my mind, this state of affairs creates room for the Minister to invoke partisan political influence to appoint someone who is likely to pander to his whims or who is sympathetic to the Minister’s political orientation. This might lead to IPID becoming politicised and being manipulated. Is this compatible with IPID’s independence as demanded by the Constitution and the IPID Act? Certainly not.
The problem was clearly illustrated by the action the Minister of Police took against the current Executive Director of IPID, Robert McBride. The Minister placed Mr McBride on suspension and instituted disciplinary proceedings against him with a view to having him removed from office.
Undoubtedly, such conduct has the potential to expose IPID to constitutionally impermissible executive or political control. That action is not consonant with the notion of the operational autonomy of IPID as an institution. Put plainly it is inconsistent with section 206(6) of the Constitution. It follows that it is invalid and must be set aside.
This does not mean Mr McBride is back at work after the Court declared his suspension invalid. In an attempt to deal with the concerns expressed by the Minister that having McBride back at work would be disruptive, the Court suspended the declaration of invalidity of the Minister’s decision to suspend and institute disciplinary proceedings against Mr McBride for a period of 30 days.
The National Assembly (NA) now has 30 days to decide whether it wishes to start proceedings against Mr McBride. If it does, the provisions of the South African Police Services Act on the removal of the Head of the Hawks will apply to this process for his removal.
In terms of these provisions the Executive Director of IPID may only be removed from office on the ground of misconduct, incapacity or incompetence on a finding to that effect by a Committee of the NA. But this can only happen if at least two thirds of the total number of members of the NA support the removal.
Given the fact that some members of the NA have, in the past, displayed a rather complicated relationship with the truth (amongst others, during the Nkandla scandal), it is possible that a majority of members of a committee of NA could find that Mr McBride was guilty of misconduct or incompetence even in the absence of facts to back up such a finding.
But even if the relevant committee made such a finding members of the NA will retain their political discretion to vote against his removal from office (just like the majority of NA members retained its political discretion not to impeach President Zuma despite the finding that he breached his oath of office).
It is therefore unlikely that two thirds of the members of the NA will support the removal of Mr McBride – unless damning evidence about his alleged misconduct is presented to it. This does not mean that the Minister (or the President) might not use their influence over members of the majority party in the NA to get the NA to start proceedings against Mr McBride to have him removed.
This is because the Minister is only entitled to suspend the Executive Director of IPID from office after the start of the proceedings of a committee of the NA for the removal of that person. If the Minister (or the President) wished to play for time to prolong Mr McBride’s suspension for longer than 30 days, this would be the only way to do it.
Could there be political reasons to keep Mr McBride away from the office for as long as possible? I suspect there could.
The IPID Act grants the Executive Director extraordinary powers to investigate wrongdoing in the police service. Notably the Act does not explicitly prevent IPID from investigating alleged wrongdoing by the Hawks or any of its members.
Further it allows IPID to investigate “corruption matters within the police initiated by the Executive Director on his or her own, or after the receipt of a complaint from a member of the public, or referred to the Directorate by the Minister, an MEC”. IPID can also investigate “any other matter referred to it as a result of a decision by the Executive Director, or if so requested by the Minister, an MEC or the Secretary.
IPID is not the only body that may investigate the Hawks for an alleged abuse of power. Section 17L of the South African Police Services Act also allows a retired judge to investigate complaints against the Hawks.
However, the retired judge may only investigate a matter after receiving complaints from a member of the public who can provide evidence of a serious and unlawful infringement of his or her rights caused by an investigation by the Directorate; or from any member of the Directorate who can provide evidence of any improper influence or interference, whether of a political or any other nature, exerted upon him or her regarding the conducting of an investigation”.
The retired judge cannot, of his own accord, investigate alleged abuses of power by the Hawks. An ordinary member of the public who is not alleging that his or her own rights have been violated by the Hawks, may also not request the retired judge to investigate the alleged abuse of power by it. For fear of being seen to escalate the matter, it is unlikely that Minister Pravin Gordhan will ask the retired judge to investigate the alleged abuse of power by the Hawks.
However, Mr McBride – in his capacity as the Executive Director of IPID – can, on his own initiative, investigate “any other matter” relating to the alleged abuse of power by any member of the South African Police Service (including the Hawks).
This means the Minister of Police may try and block Mr McBride’s return to office in an attempt to protect the Hawks from an IPID investigation. Given that the Hawks have been investigating Pravin Gordhan for actions which do not constitute criminal offences – even if the relevant facts were proven beyond a reasonable doubt – the Hawks (and those who control them) have much to fear from Mr McBride’s return to office.
Which means a move by the NA to starts proceedings to remove Mr McBride from office will provide circumstantial evidence for the conclusion that powerful political actors are anxious to protect the Hawks against any vigorous and independent IPID investigation.
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