ISS Portfolio Committee on Police Submission 4 Aug 2010 ...

1 The civilian Oversight of the Police BillsSubmission by The Institute for Security Studies to the Parliamentary Portfolio Committee on Police4 August 2010 Strengthening the civilian Oversight of the Police BillsSubmission by The Institute for Security Studies to the Parliamentary Portfolio Committee on Police4 August Introduction to the ISS and the CJP The Independent Police Investigative Directorate Bill The civilian secretariat of the Police Service for Security Studies (ISS) is an African non-governmental policy research institute. Our work is aimed at contributing to a stable and peaceful Africa characterised by sustainable development, human rights, the rule of law, democracy and collaborative security.

2 The Crime and Justice Programmeof the ISS works to inform and influence policy and public discourse on crime, its prevention and criminal justice by conducting research, analysing policy, disseminating information and providing expertise as a contribution towards a safer and secure society. Independent Police The Independent Police Investigative Directorate BillInvestigative Directorate BillSubmissions will focus on the following submissions will focus on the following aspects:aspects: Matters that the IPIS mustinvestigate Matters that the IPID mayinvestigate Police reporting on the implementation of IPID recommendations.

3 Appointment of the Executive the IPID Matters the IPID mustmustInvestigateInvestigateReporting cases of deaths, rape & torture. by the Police to the additional clause: Any incidents of death as a result of Police action or while in Police custody and all allegations of rape or torture as described in this Act, that comes to the attention of a Police official must immediately be reported to the IPID. the IPID Matters the IPID mustmustInvestigateInvestigateEnsuring Police cooperation with the IPID. Proposed additional clause: All policing agencies whose members are subject to an investigation by the Directorate must provide unfettered cooperation.

4 This includes but is not limited to, ensuring that all information relevant to the case and requests for identification parades is acceded to within 48 hours of a request made by the Directorate . the IPID Matters the IPID mustmustInvestigateInvestigateDefining torture in the legislation. Following definition recommended (UNCAT Protocol): any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is a suspected of committing, or intimidating or coercing him or a third person, for any reason based on discrimination of any kind, when such pain or suffering is inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

5 It does not include pain or suffering arising only from inherent or incidental lawful actions. the IPID Matters the IPID mustmustInvestigateInvestigateReceiving allegations of torture. Following amendment to clause 25 (1) (e) recommended: Any complaint or allegation of torture committed by a Police official which is received from any source. the IPID Matters the IPID mustmustInvestigateInvestigateIPID capacity to investigate death, torture & rape. Following additional clause recommended: The Minister must ensure that the Directorate has the specific resources required to adequately investigate deaths, rape and torture by Police or in Police custody.

6 The IPID Matters the IPID mustmustInvestigateInvestigatePrioritisi ng the prosecution of cases investigated by the IPID. Following amendment to clause 16 (c) dealing with the establishment of the Consultative Forum to include: a senior representative appointed by the National Director of Public Prosecutions to represent the National Prosecuting Authority. the IPID Matters the IPID maymayInvestigateInvestigateAddressing systemic problems It may be instructive to consider the relationship between a systemic organisational challenge confronting a policing agency and the abusive behaviour that occurs as a result. For example, flawed recruitment practices, inadequate training, poor management and a weak internal disciplinary system would be the types of systemic problems that could result in high levels of corruption, misconduct and abusive behaviour on the part of Police officials.

7 To be able to recommend appropriate interventions to solve the systemic problems confronting the organisation, the IPID would be required to investigate a range of issues beyond the specific allegations of corruption or criminality. This means that the IPID would have to develop the capacity to assess a variety of organisational policies, processes and systems, and at the very least management the IPID Matters the IPID maymayInvestigateInvestigateTackling Police corruptionAs with other systemic challenges facing policing organisations, corruption cannot be substantially addressed by external oversight agencies. International experience demonstrates that to effectively reduce Police corruption, the Chief of the Police and senior Police management must take primary and ongoing responsibility for driving anti-corruption strategies The best that the IPID will be able to do is support anti-corruption efforts by Police management.

8 Even then, responding to allegations will never be sufficient. Capacity needs to be established to undertake proactive integrity testing. While IPID investigators may be subject to this due to this legislation, other Police officials will not reporting on the Police reporting on the implementation of the IPID implementation of the IPID Upon the receipt of written recommendations by the directorate, the Police agency concerned has 30 days within which to report to the National Secretary of Police and the Executive Director of the Directorate in writing on the extent to which the recommendations have been implemented. If the Head of the Police agency to whom the recommendations areaddressed is of the opinion that there are good reasons why they should not institute the recommendations, written reasons, including possible alternative action must be sent to Executive Director within 30 days for consideration by the Management Committee .

9 If the Management Committee of the Directorate does not accept the reasons given by the Police management as to why certain recommendations should not be implemented, and/or if the proposed alternative action is not acceptable to the IPID, the matter may be referred to the Minister for a final of the Executive Appointment of the Executive DirectorDirectorTo strengthen the impartiality and independence of the ExecutiveDirector of the IDIP and the public perception thereof, we propose the following amendment to clause 5 (1) :The Minister must, subject to the laws governing the public service, appoint the Executive Director following consultation with the parliamentary Committee during which public submissions with respect to the shortlisted candidates should be allowed.

10 civilian secretariat of the The civilian secretariat of the Police Service BillPolice Service BillSubmissions will focus on the following aspects: Function in relation to Police misconduct Function in relation to complaints against the Police Function in relation to community safety and Police relations Provincial Secretariats investigative function Cooperation & function in Secretariats function in relation to Police misconductrelation to Police misconductSection 5 (1) (a) states that the secretariat must monitor the conduct of members, and where necessary recommend corrective measures. It is questionable for example, whether it will be possible for the secretariat to monitor the conduct of the approximately 200 000 members of the South African Police Service (SAPS) that will be employed by 2011.