Political interference in crime and corruption investigations in South Africa is a major concern. This has become a hallmark of President Jacob Zuma’s administration, with ongoing questions about the appointment of unfit people to key positions in the police and prosecution services. Recent high profile court cases dealing with the independence of special investigation units have gone all the way to the Constitutional Court, showing just how bad the problem is.
In the case of the police’s organised crime and corruption investigation unit, the Directorate for Priority Crime Investigation (DPCI or the ‘Hawks’), the Constitutional Court ruled in 2011 and 2014 on questions of independence. In September this year, another special unit that probes offences committed by police officers – the Independent Police Investigative Directorate (IPID) – was the subject of a Constitutional Court judgment. The court ruled that current laws on the suspension and removal of the IPID head are unconstitutional and invalid.
These judgments have gone some way to establishing the independence of these investigation units from their political superiors. However, all the judgments focused on laws governing the suspension and dismissal of unit heads. The root of the problem has not been dealt with, and that is how people are appointed into these positions. It is of little use to improve laws in relation to the exit process, while no attention is given to the entry process.
The origin of the IPID case is the suspension in March 2015 of IPID Executive Director Robert McBride by the Minister of Police, Nathi Nhleko. McBride was facing a disciplinary inquiry after being accused of ‘tampering’ with two investigative reports. McBride disputed these allegations and took the matter to the North Gauteng High Court, which ruled in his favour in December 2015. Because it was a constitutional matter, the high court decision had to be confirmed by the Constitutional Court.
IPID had been investigating the illegal rendition of four Zimbabweans in 2010 and the alleged involvement of former Hawks head Anwa Dramat and the Gauteng provincial head of the Hawks, Shadrack Sibiya. From the arguments made before both courts, it appears that the police minister had relied on inaccurate information when he suspended Dramat in 2014. When McBride presented evidence to this effect, the minister turned on the IPID head and suspended him as well.
The IPID investigator working on the Dramat-Sibiya case also alleges that Berning Ntlemeza, at the time a deputy police commissioner in Limpopo province, irregularly influenced IPID’s investigation that led to the suspension and removal of Dramat. Somewhat conveniently, the removal of Dramat paved the way for Ntlemeza’s appointment to head the Hawks.
The Constitutional Court asked pertinent questions such as whether IPID enjoys adequate structural and operational independence as envisaged by section 206(6) of the Constitution, and what the independence of IPID actually means. This is a crucial question, especially with regards to the Hawks. Both these institutions are part of the Department of Police and report to the same minister. Is it a coincidence that the independence of both institutions has become the focus of various Constitutional Court judgments?
The Constitutional Court decisions in 2011 and 2014 eventually determined an ‘adequate’ level of independence for the Hawks. Much of what was decided in those two cases was repeated with approval in the McBride judgment. For both IPID and the Hawks, the court made it clear that absolute or complete independence was impossible, as these institutions had to accept political accountability vis-à-vis the Minister of Police.
In McBride’s case, the Constitutional Court gave parliament 24 months to cure the defects in the IPID Act to ensure that it attains the kind of adequate independence as laid down in the judgment. As an interim arrangement, the court ordered that the IPID Act be read as if the relevant provisions of the South African Police Service Amendment Act of 2012, following the Constitutional Court judgments on the Hawks in 2011 and 2014, were part of it.
These judgments dealt primarily with the process of suspending and dismissing the heads of IPID and the Hawks. What remains unsolved is the process leading to the appointment of people into these positions.
In the McBride judgment, the court quoted from a report by the Organisation for Economic Co-operation and Development, also cited in the Constitutional Court judgment in 2011: ‘Transparent procedures for appointment and removal of the director together with proper human resources management and internal controls are important elements to prevent undue [political] interference’ (emphasis added).
According to section 6(2) of the IPID Act, parliament plays a direct role by ‘confirming or rejecting’ the candidate nominated by the police minister. But the main concern is that the minister has the power, in terms of section 6(1), to nominate the candidate ‘in accordance with a procedure … determined by the Minister.’ This leaves the door wide open for the appointment of unfit people who may be amenable to manipulation by the minister or his political principal.
As for the Hawks, the situation is worse in spite of the Constitutional Court’s attempts at improving the unit’s independence. Section 17C (2)(a) of the SAPS Amendment Act of 2012 gives the minister the power to appoint the head of the Hawks ‘in concurrence with Cabinet.’ Parliament has no say in the appointment (although it does have a role in the suspension and removal of the head).
This is an untenable situation, aptly pointed out by two of the Constitutional Court judges in their minority judgments in 2014. Judge Edwin Cameron said: ‘In my view, consolidating the powers to appoint the Head in the Minister and Cabinet erodes the DPCI’s independence to a constitutionally impermissible degree.’
Without a transparent process for appointing leaders of South Africa’s crime fighting units, the country is unlikely to escape the damaging interference of politicians in the difficult job of tackling crime and corruption.
Johan Burger, Consultant, Governance, Crime and Justice, ISS