by Melanie Lue
Submission to the Technical Committee appointed by the Minister of Safety and Security, Mr Sydney Mufamadi, on the Police Bill, August 1994.
Melanie Lue is a former Researcher at the Centre for the Study of Violence and Reconciliation.
The Policing Research Project welcomes the initiative of the Technical Committee to seek comment on the Police Bill.
What follows is some brief comments on various aspects of the Bill which we feel are crucial to the broader transformation of the police institution into a more transparent and accountable service-orientated profession. Whilst we confine our comment directly to those sections, we wish to express our concern in relation to those aspects relating to employer/employee relations , grievance procedures and discipline. Recognising that no matter how the institution of policing is restructured or what mechanisms exist to achieve greater accountability and transparency, discontented and disillusioned police personnel will render all this ineffective. We argue that a culture of human rights and equality must be engendered in police practice, but principles of fairness and equity should not be limited to the recipients of policing but must apply to the police themselves. Respect for human rights and the regulation of essential freedoms in a humane manner, as required of police personnel in execution of their functions, can only be born of a culture embedded in an institution through experience, commitment and recognition of the need to protect a democratic order. Police must be and be seen to be part of this democratic order and neither above nor below it.
We do, however, wish to express concern at an inconsistency in the Bill in efforts to promote accountability and transparency. Accountability and transparency are not limited to certain sections of the Bill but must be reflected in their entirety. We note therefore with concern that what seems to be classified as "internal workings" of the police are not part of "community policing" i.e. accountability and transparency. This misconception of both community policing and misunderstanding of transforming the police institution rather than reforming it have resulted in a lack of consistency in implementing this. Whilst recognising that certain issues will not have a direct bearing on community-police relations, accountability and transparency are not limited to public scrutiny or community participation but may require civilian participation at various levels which will provide impetus to the transformation of the service from a closed rank structure to a more open service-orientated profession.
It is in this light, therefore, that provisions regarded as "internal" or "management" must be viewed. Policing must be seen as a composite whole and not as an institution with proliferated value systems.
Equally significant is recognising the need to incorporate civilians into the policing structure. The institution must represent the community it serves not only in terms of gender and race (affirmative action considerations) but in terms of civilian personnel.
Such a process will provide streamlining of "policing functions" and other functions which can be performed by non-police personnel, thereby providing greater efficiency in terms of employing specialist functionaries in positions and utilising police for the purpose for which they were trained - this will alleviate problems of man-power and increase efficiency. Increasing civil society involvement through community police forums and boards are one means; monitoring, complaints and research are another. A further area is the use of civilians as assessors, trial officers and the like in disciplinary and grievance procedures as well as employee/employer negotiations.
We wish to express our concern at the use of the terminology "law and order" and "internal security". Whilst we recognise that such terminology is used in the new Constitution we feel that the new emphasis of policing is based on a community safety service approach and is moving away from the old connotations of repressive law enforcement methods, militaristic terminology and perceptions of subversive internal enemies of the State. We therefore feel that the recent re-phrasing of the National portfolio reflects this new emphasis and recommend a use of terminology such as "public safety and security" and "protection of the rule of law" which is reflective of the new ethos.
Responsibilities - National and Provincial Levels
S15 (1)(f) "the keeping and provision of crime intelligence data, criminal records and statistics"
With regard to "crime intelligence data" in the vacuum of not having had sight of legislation governing the National Intelligence Agency, we are concerned as to how liaison between SAPS and NIA will take place.
Specialised Functions of the Service
We feel that the role of the national public order police unit requires greater clarity. The questions which arise relate particularly to the role the Internal Stability Unit has played in the past. A further question which arises is what the functions of this unit will be when it is not deployed. These questions relate further to the question of training of this unit.
Our other concern is the provision in Sect 17(2) which makes provision for the State President to intervene in the deployment of the unit. However at provincial level there is no provision for consultation with the MEC/Premier. Failing to understand the logic we recommend that consultation be required both at national and provincial level with the President/Minister or Premier/MEC before deployment. Similarly this criteria should also apply in cases of withdrawal of the unit.
Given the structure of the public order police unit, i.e. national, we are concerned with the question of accountability of the unit to local communities. In the past the problem has arisen where the unit is deployed without the knowledge of the station commander. This has resulted in a variety of problems with regard to accountability and disregard for local agreements reached between the community and the local police. We would therefore suggest that the Provincial Commissioner must inform both the sub-provincial commissioner and station commander in the area prior to the deployment of the unit and that due regard be given to local conditions and agreements. This therefore makes it crucial that the unit be deployed under the direction and operational command of the Provincial Commissioner, and we welcome the provision in Sect 17(6) in this regard.
Other Specialist Units
We suggest greater clarity be given as to the role of specialised units dealing with the investigation of organised crime at national level, i.e. how such a unit will be structured, how it will liaise with provincial structures, command, control and accountability at local level?
Similarly there appears to be no provision for the establishment of specialised units dealing with children and rape victims. Whilst both fall into the category of "requiring specialised skills", neither are of necessity "organised crime".
Foundation, Forums, Boards and Inspectorates
National Policing Foundation
The provision for a foundation which will facilitate a greater civilian and independent input into policy development and research is welcomed. Our concern, however, relates primarily to the location of the foundation and duplication of functions which in our view a Police Inspectorate should perform, namely Sect 20 (2) (c) "evaluate the efficiency of all forms of policing" and Sect 20 (2) (f) "… facilitate and evaluate the implementation of such results …". With regard to section Sect 20 (2) (c) we feel that this function should be located within the ambit of the National Police Inspectorate.
What we believe is that the Inspectorate (as will be discussed later) should be located in the Ministry and under civilian control. Our concern with regard to Sect 20 (2) (f) does not relate to distribution of research and furnishing of advice to the Minister and MEC, but to the facilitation and evaluation of the implementation of such results. We feel that such functions whilst they may be recommended by the Foundation and accepted by the Minister or relevant MEC, should be implemented through the Police Commissioner and appropriate structures. Operational autonomy should not be compromised by unnecessary duplicity of functions. Mechanisms in the Commissioner's office, i.e. change management teams will ensure facilitation and implementation of such recommendations. The function of monitoring and evaluating should be located outside the SAPS and under the National Police Inspectorate.
A further concern with regard to the Foundation is the independence of the Foundation. Involvement of the Ministry indirectly as spelt out in Sect (3)(d) and Sect (5)(d) require Ministerial approval; and Sect (6)(b) renders the Board and Foundation as a whole accountable to the Minister. On the question of appointments, the Minister not only appoints two persons (him/herself) Sect (4)(a)(i), but also prescribes regulations for the nominations of persons by the public Sect (4)(a)(ii). The Board of Commissioners also appoints two persons. This situation can hardly be regarded as independent when the majority of appointments are made by the Ministry and Police. This scenario will only result in criticisms of the Foundation and invoke demands for greater representivity. If the Foundation is to be independent and aims to promote greater civil society involvement, then appointments should not be made by the Institution itself. We recommend that the public be invited to submit nominations to a panel appointed specifically for this purpose with broad representativeness, i.e. interest groups, experts in the field and a judicial officer. The panel should then submit recommendations to the Minister who would reserve the right to approve or veto appointments. How the panel should be appointed is a subject of further debate, either the assistance of the National Standing Committee on Safety and Security can be elicited for this purpose or the civilian members of the Police Board. The appointments must be made in a more transparent and impartial manner with a greater public role.
The Foundation should comprise civilian appointments and only where/when necessary seconded members of the service to be determined by the Board of Control and Executive Director.
National Police Training Board
We feel that the appointment process of the National Training Board as prescribed in Sect 21 (1), (2) & (3) needs to be more transparent. Furthermore we feel that there should be a provision for an equal if not overriding civilian component. We feel that Sect 20 (3) (a) provision for the conducting of research "on its own …" is unnecessary and that the research function of the Ministry or even where necessary by the Police be conducted or allocated to outside structures through the Foundation. This will avoid duplication and irregularities in that a single set of criteria can be developed through the Foundation to ensure impartial and indiscriminate research in its own capacity and in its allocation of commissions to outside organisations.
Community Police Forums
Different interpretations of the term "community policing" have resulted in confusion as to the meaning of this concept. Community policing is seen as a vehicle to achieve accountable and transparent policing (as envisaged in the Constitution). However, it must be noted from the outset that the community policing is not limited to Sections 22 & 23. Community policing is a new police philosophy that must be reflected in management organisation, legislation, the organisation and structure of policing as a whole.
Section 22 (1) makes provision for the establishment of forums at every police station. It also states that the forums should be "representative". Section 22 (2) specifies the functions of the forums, namely: "promotion", "monitoring", "advising", "evaluating" and "enquiring" into a variety of aspects of police accountability.
As stated, the powers of the forums are advisory. The avenue for the forums to make decisions does not exist at present. Recognising, however, that there is a need for operational autonomy of the police to avoid the distortions of the past, it must be remembered that police accountability is a complex process that is reflected at various levels, such as accountability to the Constitution, Bill of Rights, Parliament, broader nation-building process, and not just simply to the community via the community police forums. We feel that this dichotomy can be addressed without restricting the powers of the forums by placing a greater onus on the police to commit to a partnership relationship with the community. This can be done by making a provision in the Bill committing the police to consider recommendations and advice from the forum and by enforcing minimum standards on the police via the Provincial Commissioner with regard to the forums.
On the question of composition and constitution of the forums the Bill is vague. Recognition of the difficulty of defining "community representativeness" as well as diversity of South African society, makes it impossible to develop an ideal model of who should be represented on the forums. Furthermore, local dynamics will determine local priorities and local role-players. So whilst a taxi association may be a key role-player in Soweto, in a rural community this may not be the case. However, it is essential that minimum criteria be given as guidelines in order to ensure that there is sufficient participation to constitute a forum. This will require an analysis of each "area" and determining representivity through a variety of criteria.
Representivity also depends on one's understanding of community policing. Understanding policing as part and parcel of the reconstruction and development programme and recognising the impact of socio-economic conditions on stability, security, crime and violence necessitate representation by different sectors. For this reason the involvement of local government structures and sectors involved in social, economic, health and other development sectors is crucial.
Criteria for meeting procedure, quorum, appointment of chairpersons, holding of portfolios by civilians and any matters relating to the function of the forum i.e. taking minutes, frequency of meetings must be specified in order to evaluate the forums.
Our recommendation with regard to the above is that there must be a minimum criteria for the establishment of a forum. Recognising the diversity of provinces and communities in particular provinces, one solution would be to require that each forum provide the Ministry with minutes/reports on progress and that a mechanism be established for evaluation of the representivity of the forum. For example, some forums have taken the initiative and drafted constitutions governing their conduct. These could be submitted to the MEC/Mechanisms established in the Ministry/ Provincial-Sub-provincial Community Policing Board for ratification and approval (contingent on continued performance).
Mechanisms to Achieve Functions/Liaison Mechanisms with the Police and Ministry
Mechanisms to achieve the functions of the forum need to be specified, i.e. channels for communication, processing of requests by community, feedback to the community, community access to police stations, lay visitors schemes, etc. There is no use in giving the forums the power to, for example, evaluate the reception and processing of complaints, without ensuring that mechanisms are in place to facilitate this evaluation.
The statement that one of the functions of the forum is to promote accountability gives no indication of how this should be achieved or even what this means. Accountability may mean very different things to different people. Similarly, the second stated function of the forums "to monitor the effectiveness and efficiency of the service" is equally meaningless and unhelpful for the forum members who will be trying to fulfill these functions.
Similarly, the relationship to the MEC must be clarified. It is crucial that there is clarity as to who is responsible for the functioning of the forum and what the relationship of the MEC is to them. We would suggest that a liaison mechanism between the forums and the Ministry be set up to co-ordinate the functioning and sustaining of the forums.
Community Policing Boards
Ideally the community policing boards should be established at sub-provincial (area), provincial and national levels. Provision is only made for the establishment of Provincial Boards. Representation on the Boards should be by a process of election from local forums to sub-provincial boards and from sub-provincial boards to provincial and provincial to national boards. This will ensure a workable size board with democratically elected structures which can address the problem of liaison and co-ordination of the forums with the police and ministry as well as ensuring conformity with guidelines and uniform and equal development.
The question of the sustainability of the forums is inextricably linked to the allocation of funds in the Police Budget. However, certain principle decisions need to be made which relate not only to the sustaining of the forums but to their establishment and functioning. We argue that it is meaningless to provide for structures of accountability and transparency in the community without equipping the community with the tools to engage and operate these mechanisms.
Past experiences in workshops run on the issue of police community relations have revealed the inherent disadvantages faced by the community in engaging with the police. This problem affects the ability of the community to participate in the forums, the way the forums operate and finally the capacity of the community to sustain the forums.
In order for the constitutional vision of community policing to be realised the process must be a joint one with the community as an equal partner with the police. This requires that the community must be equipped for this responsibility. The question of resources therefore remains pivotal to the success and sustainability of these forums.
Historical circumstances and the nature of policing have placed the community at a disadvantage in realising these objectives. Unlike the police, communities do not have access to information, neither do they have any control, knowledge or insight into the institution which services them or as to how it operates. The capacity of the community therefore to engage with the police over these issues is limited and unequal. Furthermore the lack of knowledge by the community as to its rights with regard to police conduct further limits the extent to which they are able to challenge the police. Communities are therefore at a disadvantage in not having the skills or resources to manage the process. Inevitably the police who have access to logistical support (be it the venue - a police station) or resources (tea) or time (police officers use police phones and paper during office hours to arrange and get people to meetings) take the initiative and direct the process. This is an unsatisfactory arrangement and is inconsistent with the concept of an equal partnership. No one party should be in a position of control or advantage to the detriment of the other.
The obstacles facing disadvantaged communities can be divided into two broad categories:
Education and Training
Capacity to participate in forums
- engage with the police
- attend meetings (transport and financial limitations)
Capacity to manage and run meetings
- organisational skills (chairing etc.)
- Logistical support (typing minutes, access to telephones, arranging venues, arranging meals, etc.)
Practical Running Costs
Ability to participate
- transport costs
- food costs
Logistical support/access to
- office equipment, telephone, fax, computer, etc.
- employing civilian personnel to perform organisational functions
- logistical costs
The significance of the success of the CPFs relates not only to the constitutional objectives but to the broader democratisation and reconstruction process. Crucial to this is the extent to which these forums are able to ensure continued and consistent community participation and thereby sustain themselves.
What must be established is what limitations exist on current government expenditure and what the possibilities are for utilising existing resources (police or other government departments).
Various mechanisms must be devised for proper co-ordination and distribution of such resources wherever located. Ideally such responsibility should be located in the provincial ministries.
Relationship to Other Units Operating in the Area
Section 22 (2)(d) speaks only of "visible policing services". Given the problems relating to the public order policing unit as well as to the operation of other units e.g. detectives in the community, it is crucial that the ambit of the forums intervention is not limited to visible policing only. These units must be located within the ambit of the forums in order to allow the community to exercise its constitutional rights in relation to all areas of policing.
This is an essential and crucial inclusion in the Bill. It addresses the problem of satellite stations and also provides for establishment of forums at different points in vast areas managed by only one police station. The relationship of the sub-forum to the forum needs to be clarified and spelt out.
Police Commitment to the Process
As noted earlier, all aspects of the Bill need to be examined to ensure a cohesive and entrenched commitment to the process. The involvement of senior personnel in the operation of the forums is crucial, as well as a commitment by the police to consultation with the forums.
Inspection and Evaluation Services
Section 24 (1) makes provision for the establishment of a National Inspectorate. We feel that it is crucial that such a function be located in the Ministry and not in the SAPS. The monitoring function is crucial to the broader transformation of the policing institution and is pivotal to the success and interventions of the other mechanisms in this process. It is useless to create a new structure but locate the monitoring and overseeing of the effectiveness of such processes in the police service and under the responsibility of the service and by the service. This function is crucial to greater accountability and transparency and must be located outside the area of its function. Recognising the complexity of police procedure and the need for skilled police officers to participate and enable such a process, we recommend that the structure be composed of a civilian and police component in equal proportions - recognising the principle of joint responsibility. We argue that the inspectorate be under civilian control and that selection criteria be developed to ensure the proper selection of candidates to fulfill such a function, preferably people who have worked in the area, have experience of police procedures and functions, and have some experience in monitoring rather than academic appointments.
Section 32 (7) makes provision for the establishment of a National Promotion Board established by the National Commissioner. With due regard to inherited problems of the past, unequal access to training institutions, unequal opportunities, racial discrimination with regard to appointments and a need for an affirmative action policy which will address problems of racial and gender non-representivity, we strongly urge that due attention be given to the constitution of the Promotion Board. Our recommendation is that this structure whilst located within SAPS, should have a strong civilian component consisting of expertise in all areas which will address the problems of the past and be equipped to make necessary changes in a constructive and effective manner. The appointment of such persons should as far as possible be in equal proportion to police representatives and be appointed on the advice of a civilian panel (as recommended in the case of the Police Foundation and with due regard to the concerns expressed with regard to the Training Board).
Furthermore the option of the duplication of these Boards at a Provincial level or some mechanism ensuring uniformity of practice at Provincial level should be explored.
Independent Complaints Directorate
We welcome the inclusion of this mechanism into the Police Bill. We are, however, concerned at the lack of clarity as to what offences are categorised as falling within the jurisdiction of the Directorate. We also feel that a proper mechanism should be incorporated for the Directorate to evaluate the extent to which an investigation has proceeded, what steps have been taken and to make further recommendations to the Minister by way of reports where it is felt that appropriate steps have not been taken. We also recommend that the location of the Mechanism within the Ministry should not be taken for granted and that whilst operation prerequisites will make the location of such a mechanism in the Justice Department or Office of the Public Protector impossible, that a means of making such a mechanism responsible to another department or office be explored. This can be achieved by monthly reports and not necessarily by direct intervention into the structure and ambit of Ministerial control.
With regard to the question of civilian involvement - whilst the Directorate makes provision for civilian appointments, as discussed earlier we feel that this responsibility should not be left exclusively with the Minister. The idea of a panel should be applied here as well.
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