Centre for the Study of Violence & Reconciliation (CSVR) Presentation to the Portfolio Committee on Police re: The Independent Police Investigative Directorate Bill & Civilian Secretariat for Police Service Bill Presentation: David Bruce, Senior Research Specialist, Criminal Justice Programme, CSVR, Johannesburg (dbruce@csvr.org.za) 6 August 2010

Structure of presentation Introduction to CSVR IPID Bill Introduction – ensuring effective investigations Proposal: the object of the IPID. Potential strength of Bill: the move to an investigative directorate Concerns regarding Bill: Mandate Powers of IPID investigators The authority to refer & monitor investigations Power of IPID to make recommendations & obligation of police to respond Obligations of police to report cases . Strengthening independence Others Secretariat Bill: Concerns regarding clarity in terms of functions & overloading the agency. Issue emerging from two bills: what about complaints? CSVR presentation to Portfolio Committee on Police, 6 August 2010

The Centre for the Study of Violence & Reconciliation The Centre for the Study of Violence and Reconciliation (CSVR) is an independent NGO founded in 1989. The primary goals of CSVR are to contribute to the building of violence-free societies and to promote sustainable peace and reconciliation in South Africa, across the African continent and globally. CSVR’s Criminal Justice Programme has a history of work on South African policing issues dating to the early 1990s. It has been engaged with questions to do with the Independent Complaints Directorate (ICD), the Secretariat and police accountability for much of this period. CSVR presentation to Portfolio Committee on Police, 6 August 2010

CSVR presentation to Portfolio Committee on Police, 6 August 2010 IPID Bill Introduction – Making police subject to law Ensuring effective investigations of police ICD originally established by Section 222 of interim Constitution. ‘to ensure that complaints in respect of offences & misconduct allegedly committed by police are investigated in an effective & efficient manner‘. In absence of body like this – police are effectively above the law. Obligation was not always to ‘investigate’ but To ensure that cases are properly investigated. For this purpose IPID needs full investigative powers & capacities. But also ability to monitor police internal investigations . Value of latter: police maintain some responsibility for keeping own house in order (otherwise ‘pass the buck’ to IPID for this). Interim constitution not in force – But ‘S222 concept’ remains useful. Underpins and informs CSVR approach. CSVR presentation to Portfolio Committee on Police, 6 August 2010

Proposal: the object of IPID Current bill has no provision indicating what the function or object of IPID is. Propose: the principal function of the Directorate shall be to ensure that alleged or possible offences by police are effectively & efficiently investigated. Note: term ‘possible offences’ is relevant to deaths in custody or as a result of police action. ICD currently investigates these not because of allegations but because they might be linked to wrongdoing by police. CSVR presentation to Portfolio Committee on Police, 6 August 2010

Potential strengths of bill Key current problem - ICD is overloaded by ‘Complaints’ Places heavy burden on the ICD. Support reconstituting ICD as investigative IPID. But legislation must support ability to investigate effectively Way in which investigative mandate is defined Investigative powers Investigative focus should not exclude authority to refer & monitor investigations Independence of investigative process CSVR presentation to Portfolio Committee on Police, 6 August 2010

Concern: Mandate of the IPID IPID needs to have ability to focus on important types of cases (deaths, torture, rape, others) BUT also stations or units consistently associated with deaths, or violations of the law or human rights. IPID needs degree of flexibility so that the directorate can focus its investigative resources on particular types of misconduct which are most serious or are occurring at a high level. Bill risks reproducing shortcomings of ICD legislation: Minister, an MEC, or Secretary may impose cases on IPID – e.g. Large numbers of service delivery complaints Should rather refer cases to IPID in consultation with Executive Director Links to problem of unspecified function of IPID – IPID function not clearly tied to ‘offences & misconduct’. Minister & others may refer ‘any matter’. CSVR presentation to Portfolio Committee on Police, 6 August 2010

Proposal: Mandate of the IPID Section 25 (1) should provide: IPID must investigate deaths in police custody or as a result of police action, alleged torture or rape in police custody or by police. Section 25(2) should provide The Directorate shall investigate any other category or case of possible or alleged offences or misconduct by police referred to it: By the Executive Director; By the Minister, an MEC, or Secretary, acting in consultation with the Executive Director. Section 25(3) does not add anything to the Bill Delete S25(3) CSVR presentation to Portfolio Committee on Police, 6 August 2010

Concern: Powers of IPID investigators Section 24(2) lacks clarity: Itemises powers held by investigators; But some key powers are omitted such as Section 252A on the ‘authority to make use of traps & undercover operations’. Should provide that: ‘An investigator has the powers to investigate alleged offences which are bestowed upon a peace officer or a police official, provided for in the Criminal Procedure Act 1977 (Act No. 51 of 1977) & any other law. These powers include but are not restricted to: - followed by current list + s252A .. Cooperation – Section 3(2) imposes general obligation on organs of state to assist IPID But important to retain provision along lines of current Section 53(6)(d) about specific obligations of police to cooperate. CSVR presentation to Portfolio Committee on Police, 6 August 2010

Concern Authority to refer & monitor investigations ICD has authority to refer some matters to the SAPS & to monitor the investigation carried out by the SAPS. IPID should have this power + power should be expanded so that IPID may use this authority in any case: De facto current situation is that ICD does not take over all deaths investigations – where preliminary investigation provides no reason to suspect unlawful police conduct. Potentially also relevant to investigating rape cases – SAPS may be better equipped to carry out such investigations as has specialised in-house capacity CSVR presentation to Portfolio Committee on Police, 6 August 2010

CSVR presentation to Portfolio Committee on Police, 6 August 2010 Concern: IPID power to make recommendations and .. Police obligation to respond Need provision enabling IPID to make recommendations to police Need provisions dealing with police compliance with recommendations: Must acknowledge receipt of recommendations Must also indicate within a specified period either: Steps taken to implement the recommendations; or Reasons for not implementing. Where not implemented: Executive Director should have authority (delegatable to provinces) to review CSVR presentation to Portfolio Committee on Police, 6 August 2010

Concern Police obligation to report cases to IPID Section 53(8) of the SAPS Act obliges SAPS to report deaths in custody or as a result of police action to the ICD. No provision for SAPS to be obliged to report cases to IPID – weakens IPID relative to ICD. Law should also require ‘prompt’ or ‘immediate’ reporting. Obligation to report should: include allegations of assault of any kind – otherwise police have to distinguish ‘torture’ from ‘non torture’ cases. Must be disciplinary sanctions for failure to report promptly. CSVR presentation to Portfolio Committee on Police, 6 August 2010

Concern Strengthening independence Appointment of Executive Director : need more details provisions which give greater emphasis to ensuring independence of ED. ICD has problems of cooperation from some prosecutors (including Senior Prosecutors & DPPs) who have close working relationship with police who are subject of ICD dockets in some cases. Independence of IPID investigations will also be compromised by prosecutors. Solutions may be: Cases referred to the DPP by the IPID be prioritised? NDPP establishes special director position to review matters pertaining to police? CSVR presentation to Portfolio Committee on Police, 6 August 2010

CSVR presentation to Portfolio Committee on Police, 6 August 2010 Some other issues Section 24(3)(a) on powers of investigators: should note that this is ‘subject to the Constitution’ as police ‘suspects’ also have the right to remain silent. Problems of defining torture need for definition of torture. CSVR presentation to Portfolio Committee on Police, 6 August 2010

CSVR presentation to Portfolio Committee on Police, 6 August 2010 Secretariat Bill Section 208 of Constitution: Secretariat must be established ‘to function under the direction of the Cabinet member responsible for policing’. Section 206(1) minister must ‘determine national policing policy’ after consulting the provinces Our understanding: Key function of the Secretariat is to support the Minister. SAPS in particular - extremely large & complex organisation. Exceptionally difficult to monitor & evaluate. Ability of the Minister to exercise effective oversight & political authority over police is in many ways dependent on the degree to which there is a functioning Secretariat. However need is not merely for ‘policing ‘ but also for broader ‘crime prevention’ policy. CSVR presentation to Portfolio Committee on Police, 6 August 2010

Key concern regarding Secretariat Bill Provisions regarding objects, functions & competencies in Section 4 & 5 overload the Secretariat with obligations May detract from its ability to perform key policy development, monitoring and evaluation function effectively Other provisions should be optional rather than ‘musts’. CSVR presentation to Portfolio Committee on Police, 6 August 2010

CSVR presentation to Portfolio Committee on Police, 6 August 2010 What about complaints? ICD currently receives 5000 ‘complaints’ each year. In 2008/9 these included: 2285 cases classified as ‘criminal’ 2772 cases which it classified as alleged ‘misconduct’ (in other words: service delivery complaints). Process of refining two bills needs to answer question: who will be responsible for these? Responsibility of police for dealing with these should be emphasised. But complainants need a fall-back –where police do not respond properly or intimidate complainants. Imposing obligation on IPID would defeat purpose of IPID bill. If secretariats are to play a role in this - should be spelt out more clearly. Section 14(2)(ii) should provide that provincial secretariats must: Receive complaints relating to police: Evaluate police conduct in the province and investigate matters which are not subject to investigation by the IPID; Refer matters to the police and monitors matters which have been referred to them. CSVR presentation to Portfolio Committee on Police, 6 August 2010

CSVR presentation to Portfolio Committee on Police, 6 August 2010 The end Thank you. CSVR presentation to Portfolio Committee on Police, 6 August 2010