The Case for a Judicial Commission of Inquiry into the South African Police Service
Allegations of police criminality, abuse of power and corruption and its implications require the urgent appointment of a judicial commission of inquiry
Johan Burger, Senior researcher, Criminal Justice Programme, ISS Pretoria Office
When the previous national commissioner of the South African Police Service (SAPS), Jackie Selebi, was forced to leave the Service by mid-2009, he left behind an organisation that was deeply scarred by allegations of his friendship with individuals involved in organised crime. In 2010 and primarily as a result of the corrupt nature of this friendship Selebi was convicted on a charge of corruption and sentenced to fifteen years in prison. The outcome of this case was preceded by a complex and prolonged investigation by the now disbanded Directorate of Special Operations (Scorpions) and a similarly complex and prolonged court hearing that painted the South African Police Service (SAPS) locally and internationally in a very negative light. It would be fair to conclude that the damage to the image of the SAPS and the country in general, and to the morale of the police, was immeasurable.
Unfortunately Selebi’s conviction did not result in any changes to they way that senior police officials are appointed nor did it fundamentally improve efforts to tackle corruption throughout the SAPS. Despite the worthy efforts by the Minister of Police, Nathi Mthethwa to recognise and provide political guidance to address these problems, the police are now almost constantly shrouded in controversy. Barely a day goes past without allegations of criminal behaviour, brutality, abuse of power and serious misconduct appearing in our media. Disappointingly, some of these allegations and accusations start right at the top with the current national commissioner of police, Bheki Cele. Following an investigation into allegations of an improper process to lease a new building for SAPS head office, the Public Protector found inter alia, that the conduct of the national commissioner was ‘improper, unlawful and amounted to maladministration’. Whether he faces criminal charges or other serious consequences is yet to be seen. More recently, the South African Police Union (SAPU) accused him of nepotism due to the appointment of close family members and friends to senior positions in the police ahead of other better-qualified members and without following normal procedures. Serious doubts about the suitability of his leadership of the SAPS are now being publicly debated.
Of particular concern at the moment is the extent to which the SAPS Crime Intelligence Division has become compromised. During the Scorpions investigation against Selebi, this Unit engaged in unlawful activities such as interfering with key state witness Glen Agliotti. This led to criminal charges been opened against the previous Head of the Division Mulangi Mphego before he resigned. His case was struck off the roll and has yet to be reinstated by the NPA. Recently, serious allegations against the current Head, Major General Richard Mdluli and other senior members have emerged with the current investigations into the activities of Czech fugitive and alleged crime boss, Radovan Krejcir. It is alleged that they illegally tapped the telephones of members of the Hawks (the SAPS’ Directorate for Priority Crime Investigations), who are investigating Krejcir, and shared the information with him. On Thursday this week it was reported in the media that the Hawks had charged Mdluli with a murder that took place a decade ago. If these allegations are substantiated, serious questions will have to be asked about how it was possible that this individual was appointed to one of the most powerful positions in our national police force.
Given the serious allegations against the most senior echelon of the SAPS it is not too surprising that there are widespread problems lower down the ranks. Recently there have been a number of high profile incidents where, for example, the Tactical Response Units (TRU’s) of SAPS used excessive force under circumstances where this was clearly not justified. In two recent cases CCTV cameras filmed abusive police conduct at the Catz Pyjamas restaurant in Melville and the CJs Bar in Hillbrow, Johannesburg. The need for para-military units such as the TRU’s are not in dispute. These units are considered necessary to combat the well-trained and heavily armed criminal gangs that show no fear or hesitation for gun battles with the police. But it is clear that these units do not operate within the bounds of the SAPS Code of Conduct or professional standards when dealing with civilians.
Unfortunately these are not isolated incidents, but rather detailed examples of a growing problem within the SAPS. The Independent Complaints Directorate (ICD) Annual Report for 2009/10 reveals that in the last 12 years the total number of complaints against the police increased by 146% while the number of criminal cases opened against police officials increased by 285%. Recently, the Chairperson of the National Assembly Portfolio Committee on Police, Sindi Chikunga stated that MPs to her committee were getting more reports of torture by police “…not seen since apartheid.” These unlawful and ill-disciplined actions are costing the taxpayer increasing millions every year. On 29 March this year the Minister of Police admitted in parliament that civil claims against the police had increased by 33% in the last financial year from R87, 2m in the 2008/09 to R115, 9m in 2009/10.
The list of serious leadership and management shortcomings in the SAPS is long and wide ranging. Increasingly this is starting to damage public trust in the police and undermines their ability to tackle violent and organised crime. Most worryingly, this notable drop in public confidence comes relatively soon after the SAPS won great accolades for their role in securing the 2010 FIFA World Cup. At the time the public were promised that they would see more of this type of policing. Unfortunately, the opposite appears to be the reality.
When similar allegations of corruption, maladministration, nepotism, intimidation and other acts of improper conduct were made about the Department of Correctional Services after the murder of a senior Correctional Services member in KwaZulu-Natal, the President appointed a judicial commission of inquiry, headed by Judge Thabani Jali to thoroughly investigate these allegations and to make comprehensive recommendations for improvement. While the Jali Commission was criticized for taking too long, it helped to address the extent of the corruption problem that was bedeviling the Department. Considering the ongoing and increasing scale of the problem facing the SAPS, it is arguable that a similar type of judicial commission of inquiry into the police is now urgently required. Police management have demonstrated that they are unable or unwilling to address these problems on their own. The time has now arrived for an independent judge to consider the root causes of the problem facing the SAPS and guided by a range of experts, develop a clear plan forward. Such an approach can work well as the 1994 Mollen Commission of Inquiry into Police Corruption in the New York City Police Department demonstrated. The longer it takes to address the leadership and management problems of the SAPS, the worse the situation will get. The problems are possible to solve, what is now required is the political will to do so and ensure that only the best and most experienced individuals who are beyond reproach are appointed to key positions in our largest police agency. The many honest and dedicated police officials who regularly place their lives on the line and all South Africans deserve no less.
