Issued by the FW de Klerk Foundation, on 03/10/2023

On Friday 29 September, the FW de Klerk Foundation submitted its views on the Independent Police Investigative Directorate Amendment Bill to Parliament’s Portfolio Committee on Police.

The Independent Police Investigative Directorate (‘IPID’) Amendment Bill seeks to inter alia “provide for the Directorate’s institutional and operational independence”, in accordance with Section 206(6) of the Constitution.

The genesis of this amendment can be traced to the 2016 Constitutional Court case, McBride v Minister of Police and Another, which challenged specific sections of the original IPID Act and set in motion a series of legal and legislative developments aimed at refining the oversight mechanism governing law enforcement agencies.

In the McBride case, the Constitutional Court found sections 6(3)(a) and 6(6) of the Act unconstitutional, as they granted the Minister of Police unilateral power to suspend, discipline, or remove the Executive Director of IPID without Parliamentary oversight.

Despite this, the present IPID Amendment Bill, particularly in Clause 4, once again raises concerns about transparency and accountability in the Directorate for the following reasons:

• Clause 4 of the Bill concentrates appointment powers in the hands of the Minister of Police and Cabinet, conflicting with the doctrine of separation of powers, a fundamental principle of the Constitution as set out in section 1(c).
• The Bill diminishes Parliamentary oversight in the appointment process of the Executive Director of IPID, hindering transparency and democratic principles, and is in stark contrast with international norms, such as the United Nations Guidelines on the Role of Prosecutors (‘UNGP’) and the Basic Principles on the Independence of the Judiciary (‘BJIP Principles’), which highlight the importance of ensuring that appointments are based on objective criteria and free from any undue influence.
• The Bill diverges from the Constitutional Court’s directives in the McBride case, failing to ensure a transparent selection process and granting excessive appointment powers to the executive, contrary to the Court’s guidance.

One of the problems identified in the McBride case was rectified by the IPID Amendment Act of 2019, in so far as it requires a two-thirds majority in the National Assembly to dismiss the IPID Executive Director. However, the present Bill should have included a provision that would have given the National Assembly a similar role in the appointment of the Executive Director.

Accordingly, the appointment process still fails to safeguard the IPID’s independence in the way the Constitutional Court, Constitution and international conventions require.

To uphold democratic ideals, it is essential to establish an appointment process that involves robust checks and balances, preventing undue influence and ensuring a fair and transparent system.

The Foundation also notes the State Law Advisor’s refusal to certify the Bill as constitutionally sound, which is a clear indication that the Bill, in its current form, does not align with the constitutional imperatives of separation of powers and effective oversight.

The FW de Klerk Foundation suggests that Clause 4 of the Bill be revised in line with international law and the McBride case to ensure transparency and independence of the Directorate, and ultimately to enhance public trust and confidence in South Africa’s criminal justice system. This aligns with our recommendation to revise Clause 4 by incorporating stakeholder input, mandating National Assembly approval, and ensuring transparent criteria for the appointment process.

Read the full submission here.

Image © Siphiwe Sibeko