The Independent Police Investigative Directorate (IPID) Bill The Civilian Secretariat of Police (CSP) Bill Submission by the Tshwaranang Legal Advocacy Centre 8/13/10

Background to s18 Police’s historical neglect of domestic violence South African Police Submission to the Police Board in 1994: It is a world-wide belief that the police should not interfere or get involved in household disputes. The rationale behind this relates to law enforcement as the primary function of the police – and law can only be enforced when someone lodges a criminal complaint with the police. Once they get involved in household disputes, the police are blamed for interfering in private matters. The priorities of policing are determined by the community. Figures of other serious crimes reported to the SAP confirm this fact. More attention has to be devoted to those serious crimes, which are more frequently reported. 8/13/10

Two types of duties imposed: “Duties imposed, without a sanction for dereliction of those duties has often resulted in careless attitudes by law enforcement agents in taking the issue of domestic violence seriously.” (South African Law Commission (April 1999) ‘Research Paper on Domestic Violence’). Two types of duties imposed: administrative (record-keeping) Policing services (arrest, information, escort, counselling/shelter/medical care Hence s18 of the DVA: non-compliance = misconduct, reporting, investigation, recommendations, disciplinary proceedings, parliamentary reports 8/13/10

s18 in practice Police record-keeping: 16% of the 245 stations audited in 2006 met their obligations in full; In 2007, 42.5% of the 395 police stations audited were fully compliant with the Act's provisions; and In 2008, no more than 14% of the 434 police stations audited fully met their obligations 8/13/10

Complaints around policing services 1 121 reports made between 2001 -2009 More than half related to the police’s failure to arrest abusers (52.5%); 14.5% failure to open criminal cases; and 12.3% failure to assist survivors of domestic violence to find suitable shelter; obtain medical treatment; escort the victim to collect their personal property; and seize any dangerous weapons from the abuser. 8/13/10

Responses to the ICD Disciplinary action recommended in 928 (or 82.8%) of the 1 121 complaints referred to them. Disciplinary proceedings instituted in 48 (5.1%) In 68.2% cases, the police provided either very little or no response. 45 of the 1 121 complaints resulted in some form of punishment or corrective action verbal warnings (23 cases) training (seven cases) suspensions (five cases) ranging from two to twelve months. 8/13/10

“The ineffectiveness of the criminal justice system in addressing family violence intensifies the subordination and helplessness of the victims. This also sends an unmistakable message to the whole of society that the daily trauma of vast numbers of women counts for little. The terrorisation of the individual victims is thus compounded by a sense that domestic violence is inevitable. Patterns of systemic sexist behaviour are normalised rather than combated.” (S v Baloyi) 8/13/10

The spirit and purpose of the DVA: “to afford the victims of domestic violence the maximum protection from domestic abuse that the law can provide; and to introduce measures which seek to ensure that the relevant organs of state give full effect to the provisions of this Act, and thereby to convey that the State is committed to the elimination of domestic violence.” 8/13/10

s18 in full Repeal is too wide Prosecutorial duties and directives s18(1)(a) and (b), 18(5)(a) SAPS National Instructions on the DVA Classification of non-compliance as misconduct Investigation by ICD, recommendations and possible disciplinary proceedings Six-monthly reports to parliament by the ICD and SAPS 8/13/10

Dilution of existing oversight: “[There] is a disturbing inconsistency between the promises that the laws make and the implementation of the laws. Compliance with the Constitution requires not only that laws be enacted to give effect to the rights in the Constitution, but also requires that those laws be implemented. Failure to implement laws that protect constitutional rights is a violation of the Constitution.” s25(3)(c) of IPID and s(5)(1)(a) of CSP From directive/imperative to discretionary 8/13/10

Basis of repeal unclear legislation that is enacted must be reasonable and not arbitrary. Lack of consultation See petition by 16 organisations Legitimate expectation Constitutional and international obligations Carmichele, Baloyi, Omar Sections 7, 9, 10 & 12. CEDAW African Charter on Human and People’s Rights 8/13/10

Recommendations Repeal deferred until proper consultation with relevant organisations Splitting of oversight functions Strengthening of oversight mechanisms Provide IPID with disciplinary powers over the police Designated IPID investigators working in liaison with designated SAPS internal prosecutors Regulations grading misconduct and setting out appropriate sanctions 8/13/10