Centre for the Study of Violence and Reconciliation. (1999). Submission Regarding the Proposed Independent Complaints Directorate White Paper, October.
In mid 1999 the Independent Complaints Directorate (ICD) embarked on a process of consultation intended to feed into the development of an ICD White Paper. As part of this process of consultation the ICD has invited interested parties to provide submissions on issues relating to the ICD. The following submission represents the views of members of the Criminal Justice Policy Unit at the Centre for the Study of Violence and Reconciliation.
The Criminal Justice Policy Unit (CJPU) at the Centre for the Study of Violence and Reconciliation has been involved since late 1996 in researching issues relating to the ICD. The work that the CJPU has been involved in has included extensive research on a range of issues which are relevant to the work of the ICD including: the causes and circumstances of occurrence of deaths in police custody or as a result of police action, the management of the use of force by the police, police corruption, the functioning of the SAPS internal disciplinary system and general issues relating to civilian oversight. It is hoped that our background in working with these issues will enable us to make a useful contribution to the debate around enhancing the impact and effectiveness of the ICD.
Key Assumptions and Recommendations
The submission identifies three "partially overlapping" problems which the ICD is concerned with. These are:
- Complaints against the police;
- Police crime and misconduct;
- Deaths in police custody and deaths as a result of police action.
The basic debate about the ICD is what role it should play in relation to these problems. The premise which underlies this paper is that all of these problems need to be recognised firstly as SAPS problems which the SAPS must prioritise and take responsibility for dealing with. The SAPS should therefore be responsible for ensuring that police crime and misconduct and complaints against the police are investigated properly. One implication of this is that, other than in exceptional circumstances, the SAPS should serve as the first port of call for people who have complaints against the police. The SAPS should consequently improve their capacity for receiving complaints. Furthermore the SAPS should also take responsibility for all other "problematic" issues relating to the police including the prevention of deaths in police custody or as a result of police action.
The basic role of the ICD should be to ensure that the SAPS are fulfilling their responsibilities in dealing with these problems. The ICD should do this by:
An audit function – the ICD should develop a sophisticated information gathering and analysis capacity which guides the ICD in setting priorities, and assists it in providing information and developing recommendations and policies in relation to the problems which it is concerned with.
Targeted and effective investigation into forms of police crime and misconduct which are identified for priority attention, particularly where there is evidence of the failure of the police internal investigative system to investigate these properly.
Responsibility for preliminary investigation of all deaths in police custody or as a result of police action.
The way in which the ICD should exercise these functions is summarised in more detail in section 2(b).
In addition to making recommendations regarding the mandate of the ICD the report makes recommendations regarding the independence of the ICD (Section 3), the powers of the ICD (Section 4), as well as issues relating to personnel and information management and research issues (section 5).
Introduction: An independent police oversight mechanism in South Africa
There are a variety of different models for independent oversight bodies in different countries around the world. An examination of the role of the ICD suggests that it in many ways combines the roles and responsibilities of many of the different types of oversight bodies that are found in foreign countries. At the same time the international models on which the ICD is based have usually emerged in developed countries. Relative to the size of the police service, in relation to which they are supposed to exercise an oversight function, these bodies are usually far more highly resourced than the ICD. Furthermore these models are usually operational in countries where the overall problem of police crime and misconduct is not of the same scale as that in South Africa.
Effectively the way in which the mandate of the ICD has been defined has served to overload the ICD with responsibilities in a context of limited resources and an enormous problem of police crime and misconduct. This places the ICD in a position where it is forced to "run in different directions" whilst not being able to ensure that it is effective is addressing any specific problem.
An independent oversight mechanism in South Africa, rather than being loaded with the responsibilities carried by a variety of different such bodies in foreign countries, needs to have a clearly defined mandate which is appropriate in relation to circumstances (the nature of the problem of police crime and misconduct, available resources, etc) in South Africa. Effectively what still needs to be developed is a model for a civilian oversight mechanism that is appropriate to the circumstances of a developing country like South Africa.
The big question in South Africa is therefore how the role of a South African oversight mechanism should be defined taking into account local realities and constraints. While it is clear that there is potential value in having an independent oversight mechanism in South Africa this does not mean that the current model is the most appropriate.
In this submission we argue for the basic role and mandate of the ICD to be far more clearly understood and conceptualised. In order for this to be done it is necessary to identify what the most basic assumptions are behind the way in which the role of the ICD is currently conceptualised and to explore these assumptions in detail. In section 2 of this submission we examine the current role of the ICD and argue that the most basic problems with the ICD relate to both its being understood as a "complaints" body and the lack of clarity about its investigative mandate. We proceed to put forward a framework for the mandate and operation of the ICD that we believe will enable it to play a far more effective role. In section 3 we examine the issue of the independence of the ICD. In section 4 we look at the issue of the powers of the ICD. In section 5 we look at some outstanding issues in particular the issue of human resources and the ICD's information management and communications capacity.
Clarifying the Role and Mandate of the ICD
(a) The current mandate and role of the Independent Complaints Directorate
In an earlier report which the Criminal Justice Policy Unit produced for the ICD we argued that an analysis of relevant legislative provisions ICD leads to the conclusion that the core role of the ICD is to ensure that "possible cases of crime and misconduct involving members of the SAPS are effectively and efficiently investigated".1
While this is arguably the core role of the ICD in terms of the legislation in practise the role of the ICD is defined by what it does (and by what people expect it to do). An examination of the current operation of the ICD suggests that it has a very loosely defined mandate, which in practise has been translated into three partially overlapping roles. These three roles are:
Acting as a "complaints body";
The investigation of alleged police crime and misconduct (or ensuring that such alleged crime and misconduct is properly investigated);
The investigation of deaths in police custody or as a result of police action.
These three roles "partially overlap" with each other but are in many ways distinct. Thus:
Most complaints, which have been lodged by members of the public (or the SAPS) with the ICD thus far, have nothing to do with deaths and many do not relate to police criminality or misconduct but concern dissatisfaction with service delivery.
Much police crime is not linked to deaths and is not the subject of complaints. In particular certain forms of corruption are "consensual" and are unlikely to lead to complaints.
The majority of deaths in police custody or as a result of police action are not the subject of complaints against the police and according to available evidence do not involve police crime and misconduct.
These three "partially overlapping" roles are discussed further in what follows:
(i) Acting as a complaints body
The idea of the ICD as a complaints body is partly a carry over from s 222 of the Interim Constitution which indicated that a body should be established charged with ensuring that "complaints" of alleged crimes or misconduct involving members of the SAPS are effectively and efficiently investigated.
The word "complaints" has been carried over into the name of the ICD. One consequence is that what most people understand as the core role of the ICD is inferred from the name of the organisation. This appears to imply that the ICD is responsible for dealing with complaints against the police.
Effectively therefore the name of the ICD currently carries the major part of what may be understood as its "implied mandate" – in particular the assumption that members of the public should be able to go to the ICD with complaints and a realistic expectation that these will be dealt with. In practise not only members of the public but many members of the SAPS are under the impression that they can go to the ICD with complaints about one or other issue relating to the SAPS and have some expectation that these complaints will be investigated by the ICD.
The assumptions associated with the idea that the ICD should be a "complaint's body" need to be evaluated. These assumptions include the following:
That it is preferable to have an "external body" dealing with complaints against the police than it is to have the police dealing with them.
The ICD has the potential to process the majority of complaints against the police.
That the ICD is likely to be able to deal with complaints better than the SAPS.
These assumptions are examined in what follows:
a. In principle (taking into account current realities) is it preferable for the police or an external body to be responsible for managing most complaints?
The "in principle" position is as follows: the police should be responsible for dealing with complaints against members of the SAPS. This principle should only be abandoned if there are overwhelming arguments to the contrary. Essentially making 'complaints' the responsibility of an external body is counterproductive as responsibility and accountability for how complaints are dealt with is then displaced to the external body with various unintended consequences (e.g. neglect by the police of their complaints management capacity; police neglect to address underlying problems that are giving rise to complaints; external body becomes the focus of criticism of failure to deal with complaints; potential value to police of complaints – i.e. using them as a tool to address issues of professionalism – is lost).
b. Is it realistic to see the ICD at some point in the near future as processing most complaints?
The answer is a definite "no" particularly for reasons of resources. The implications of relying on the ICD to process (receive, classify, and ensure that such complaints are investigated) all complaints against the police are potentially enormous. In fact up to this point the ICD has been reluctant to open the taps on complaints against the police by encouraging all members of the public who have complaints against the police to come forward.
c. Is there the potential that the police could significantly improve their handling of complaints?
There is no reason in principle why this should not be possible. In fact it should be easier for the SAPS to provide an effective system for receiving and processing complaints than it is for the ICD to do this.
This is not to say that it would not be necessary for some level of change to take place in the SAPS approach to the issue of complaints in order for them to deal with them constructively and effectively. But it makes more sense to focus on improving the SAPS approach to complaints than it does to try and set up and entirely separate body to deal with all such complaints. The implication is that one of the issues that needs to be addressed is how to develop constructive attitudes amongst SAPS members towards the issue of complaints and complaint management.
Recommendation 1: The SAPS should establish an accessible complaints office at every area headquarters in the country (there are 42 of these while the ICD currently has fewer than 7 regional offices). The understanding should be that any member of the public who has a complaint against the police should be able to lodge this complaint at the police station where the problem occurred. However if they have any reason for not wishing to do so they should lodge the complaint at the SAPS Area Complaints office. The area office should be responsible for ensuring that all complaints in the area are properly attended to. Measures should be introduced to protect the Complaints Office from interference.
Note that for the SAPS to deal with complaints effectively implies that steps are taken to improve the effectiveness and integrity of the police internal investigative and disciplinary system. This issue is addressed below.
Recommendation 2: Measures should also be introduced to contribute to a change in understanding on the part of SAPS managers and SAPS members generally in relation to complaints.
Recommendation 3: The ICD should primarily perform an oversight role in relation to the SAPS complaints process. It should play this role partly by serving as a point where complaints can be lodged where the SAPS Area Complaints office has failed to deal with them. In exceptional circumstances (such as where a person fears for his/her life if he/she reports a complaint to the police) they should be able to report their complaints to the ICD.
Recommendation 4: To avoid continuing confusion ICD information management systems should only use the word "complaints" to refer to cases where there is a complainant i.e. cases lodged by a member of the public or other person alleging police crime or misconduct (or failure of service delivery). The word "cases" should be used to refer to all matters which the ICD has dealt with including complaints and matters where there is no complainant such as police custody/action deaths which the ICD is informed of by means of notification by members of the police.
(ii) The investigation of police crime and misconduct
As indicated section 222 of the Interim Constitution used the words "complaints in respect of offences and misconduct allegedly committed by members of the SAPS". According to section 222 the body which was to be established was to ensure that these "complaints" were effectively and efficiently investigated but not necessarily to investigate these complaints itself.2 However when it was established in terms of the SAPS Act the ICD was also provided with an investigative mandate.
In many ways these factors have contributed to confusion about exactly what the ICD is expected to do. This confusion relates to:
The ICD's investigative mandate: Section 222 of the interim constitution simply states that the core role of the ICD is to ensure that investigations are carried out effectively and efficiently. There is no necessary implication that the ICD should carry out these investigations itself. In practise, partly for reasons of resources, the ICD has only been able to develop a relatively small investigative capacity (in the region of 30 to 40 investigators). On the other hand the sections of the SAPS Act relating to the ICD do not indicate clearly what level of investigative responsibility the ICD should take on. Many people assume that the "ideal" position is for the ICD to investigate as many cases as possible rather than these investigations being undertaken by the police internal investigative mechanisms and that the ICD has been provided with an investigative mandate in order to "take over" the responsibilities of the SAPS internal investigative bodies. Such an approach is not only unrealistic but also undesirable in principle. While we argue for the ICD's investigative capacity to be strengthened this is within a framework which recognises that it will always be relatively limited and that the SAPS must carry the major responsibility for investigating police crime and misconduct;
The ICD's responsibility for dealing with "offences and misconduct by the police": The confusion here relates to what exact role the ICD is supposed to play in dealing with police crime and misconduct. Many of those who see the ICD as being concerned with police crime and misconduct are inclined to think that the ICD should be responsible for investigating corruption, for instance. However the investigation of corruption requires seasoned and experienced investigators while many of the ICD's investigators lack experience. Furthermore it requires the use of undercover techniques which the ICD does not have experience in. Properly structured and managed internal police investigative bodies may have the potential to investigate corruption more effectively than does the ICD. It is therefore not necessarily desirable that the ICD take over these investigations. If the original formulation of section 222 of the Interim Constitution is followed then this simply implies that the ICD's job is to ensure that police crime and misconduct is effectively and efficiently investigated. This is different from saying that the ICD is responsible for dealing with police crime and misconduct itself.
The ICD's role as a complaints body also confuses the issue: Thus many people assume that the ICD has an investigative capacity in order to investigate the complaints that it receives. This is unrealistic. Furthermore as indicated not all of the complaints that the ICD receives relate to police crime and misconduct. Some complaints are simply from members of the public who are concerned that the cases that they have reported to the police are not being investigated properly. While complainants often expect the ICD to be willing to deal with any matter others expect the ICD to focus on serious police crime. But if the ICD is to be well informed about serious police crime and misconduct it needs to establish information systems for monitoring this. Complaints in themselves are not necessarily a reliable source of information on major forms of police crime. Corruption, for instance, is often a consensual crime and is unlikely to generate complaints.
It is apparent that there is a major problem of police criminality in South Africa and many people assume that the ICD should be focusing on dealing with this. However in practise the ICD is overloaded with all manner of complaints, many of them of a relatively trivial nature. At the same time the ICD carries major obligations in terms of the investigation of police custody/action deaths.
While we support the argument that police crime and misconduct is the key problem that the ICD should focus on this is not the same as saying that the ICD should be responsible for the investigation of most police crime and misconduct. There is no independent body in any country in the world that is responsible for conducting all investigations into the police. The reality is that of necessity most investigations into possible cases of police crime and misconduct will have to be conducted by the police themselves.
Recommendation 5: The ICD's core mandate should continue to be defined in relation to "police crime and misconduct" and ensuring the effective investigation thereof. However this should not be understood to exclude a focus on prevention of police crime and misconduct (or on preventing cases of deaths in police custody or as a result of police action which are not linked to crime or misconduct – see below). The ICD's core mandate could therefore be understood as "ensuring effective investigation and prevention of police crime and misconduct".
Recommendation 6: A major issue is therefore how to ensure that the internal investigative and disciplinary systems of the SAPS can be made to operate as effectively as possible. This issue in itself requires detailed attention not only from the ICD but also by SAPS management and the Secretariat for Safety and Security.3 In particular whatever measures are necessary to ensure that the internal investigative system is properly managed and able to operate free from interference should be introduced.
At the same time, while the police of necessity must be responsible for most investigations into possible police crime and misconduct this does not mean that there is not some value in the ICD having its own investigative capacity. However for various reasons including reasons of resources this investigative capacity is likely to be limited relative to the size of the problem (even if for instance the ICD's budget was increased three-fold). The implication is that the ICD should investigate forms or cases of police crime and misconduct which it has prioritised and which it is capable of investigating effectively with its available investigative resources.
Recommendation 7: In order for the ICD's investigative capacity to be used effectively therefore a few things are essential. These include:
That the appropriate systems (training, management etc) are put in place to ensure that the investigative system operates effectively and that appropriate resources are available for this purpose;4
That the investigative capacity is used in a highly targeted and focused manner which ensures that the limited investigative capacity is used in such a way as to have optimum impact in addressing the problem of police crime and misconduct;5
That the mandate of the ICD is defined in such a way that it is empowered to conduct investigations in a targeted and focused manner. This implies that in general the ICD must be provided with a flexible mandate which enables it to select which cases it is to investigate (the ICD must maintain its power to investigate matters "of its own accord" or meru motu) with the "default" assumption being that the SAPS is responsible for investigations unless the ICD indicates that it is taking responsibility.
Arguably its current legal mandate does empower the ICD to act in this way. At the end of the day the major problem within the ICD may therefore lie in its having failed to set appropriately defined priorities. The potential for the ICD to set appropriate priorities will depend on it developing a capacity to gather and analyse information on the nature and extent of police misconduct and to use this information for the purpose of strategically targeting investigations – hence the need for an "audit" capacity.
Recommendation 8: The ICD should organise itself to focus on the problem of police "crime and misconduct". It should do so through two key functions:
Firstly it should have an audit function – this should be primarily an information gathering function. In addition to assisting the investigative section to set priorities this audit function should also be a mechanism for providing information on the key problems of police crime and misconduct in South Africa.
Secondly the ICD should have an investigative function – this should enter into investigations on a strategic basis i.e. in terms of a strategy orientated towards tackling the key problems of police crime and misconduct in South Africa.
In discussing the investigative role of the ICD one should take into account that there are at least three different ways in which the ICD can play this role. The first is by conducting investigations itself. The second is by supervising investigations. Here the ICD would give explicit guidelines and instructions regarding the investigation but the investigation would be conducted by the SAPS itself. The third is by monitoring investigations where the ICD checks up on investigations which have been conducted by SAPS internal investigators at the end of the investigation to ensure that the investigation has been done properly.
Recommendation 9: The ICD currently sees monitoring and investigations as separate. However own investigations, supervision and monitoring are all actually part of the ICD's investigative function i.e. they are mechanisms for ensuring that specific cases of police crime and misconduct are properly investigated. The ICD should distinguish this "investigative function" from an "audit" function which serves to gather information in order to accurately identify and analyse patterns, trends and key problem areas in police crime and misconduct (forms of crime or misconduct or particular stations or areas or police officers) particularly to assist the ICD in setting priorities. The ICD needs to clearly distinguish between these two types of functions and use consistent terminology in doing so.
Recommendation 10: The ICD should develop an information sharing arrangement with the SAPS in terms of which the ICD, on request, is able to obtain full and immediate access to documentation and other information which is under the control of the SAPS complaints investigation and management system. In terms of the arrangement the SAPS should also provide the ICD with detailed information relating to complaints and criminal and disciplinary cases being investigated against SAPS members, and regarding disciplinary proceedings when requested to do so. Special provisions should be developed in relation to undercover investigations.
(iii) Investigating deaths in police custody or as a result of police action
The ICD derives its responsibility for investigating these deaths from ss53(2)(b) of the SAPS Act. Notice that in Figure 1 "police custody/action deaths" are one of the three partially overlapping current areas of concern of the ICD. While some deaths are the subject of complaints by members of the public this is not the case in relation to the majority of deaths. In most cases the ICD is informed about deaths by the SAPS or finds out about them by other means (e.g. through the press). Similarly the available evidence does not demonstrate that the majority of these deaths are the result of police crime and misconduct.
The major work load which ICD investigators currently carry is the investigation of these deaths which, since the ICD started operating, have been occurring at an average rate of about 60 per month. During the first two years of its existence these deaths made up roughly 31% of cases which the ICD recorded. However they take up a far higher proportion of the time of ICD investigators particularly due to the fact that ss53(2)(b) of the SAPS Act makes it obligatory for the ICD to investigate these deaths.
While the investigation of these deaths places a major burden on the ICD there is good reason to treat custody/action deaths as a "special class" or area of concern for the ICD. Reasons for this include:
The legacy of apartheid and of police brutality under apartheid and the historical obligation on the part of government to ensure a break with the past on the part of the SAPS;
The seriousness and finality of deaths and the need for public policy to prioritise these as an issue of public concern;
The fact that there is no complainant and no witnesses other than police witnesses in many cases thus enhancing the need for independent investigation;
The special concerns of family and relatives;
The large number of these deaths that have been occurring since the ICD started operating in April 1997;
The strong element of suspicion on the part of the public that attaches to many of these deaths;
In so far as these deaths are linked to police criminality (particularly police brutality), this represents a form of police crime and misconduct which is of particularly serious concern.
The idea that deaths of this kind should be treated as a special class is supported for instance by McLeod in his recommendations on the mandate of the Ontario Special Investigations Unit.6
Recommendation 11: The ICD should continue to have an obligation to investigate all deaths in police custody or as a result of police action. However these investigations should be "preliminary investigations" after which the ICD either makes a decision to carry the investigation forward or gives the police instructions as to how to do so. In general where there is particular evidence or suspicion of police criminality the ICD should manage the investigation. Where there is criminality on the part of the police, investigations need to be used effectively to bring the culprits to book. The investigative framework for the conduct of these preliminary investigations should however also take into account broader concerns – which are relevant to the prevention of these deaths – relating to the management and care of persons in custody and the management of the use of force by the SAPS.7 The legislation should be amended to reflect this new framework.
(Note that the approach taken to this issue is consistent with that taken in the rest of this submission i.e. that responsibility for carrying out investigations remains with the SAPS. However this SAPS investigation has to be carried out in terms of a framework of co-operation with the ICD and subject to any recommendations or decisions that the ICD may make in its preliminary investigation. Potentially such a decision would be to the effect that the ICD and not the SAPS carry out the investigation).
Recommendation 12: While we have said that the majority of these deaths are not necessarily the result of criminal acts on the part of the police this is not the same as saying that many of them cannot be prevented. The ICD, the SAPS and the Secretariat should see it as a priority to ensure that the number of these deaths is dramatically reduced through a strategy that emphasises measures focused on the prevention of these deaths.8 The ICD should ensure that reducing the number of these deaths is included in the National Priorities of the SAPS.
Recommendation 13: A priority for the ICD in terms of its information management function (which in terms of this proposal is part of an "audit function" related to setting priorities) needs to be developing accurate information on the degree to which deaths are linked to particular police stations as well as police officers. This information is potentially most valuable if analysed over time frames of more than one year. The ICD should prioritise the development of accurate information on this issue. Such information is essential if issues of prevention are to be addressed effectively. Furthermore the information which will be most informative will be information which covers time periods of two to three years rather than simply one year.
(b) Summary: What functions should the ICD perform?
Overall therefore the optimum role for a South African independent oversight mechanism would combine:
(i) An audit function – this would include "intelligence/information gathering" activities and research and analysis of various information sources as well as inspections of particular stations or policing areas. The objective would be priority setting for the ICD i.e. to identify problem areas, units, persons, and behaviours for targeted investigations. The audit function would also service the ICD's internal and external communications by providing reliable and accurate information.
The audit function could also play a role in developing policies. A more ambitious approach to this type of function would see the "audit" function also playing a role in:
a. Setting standards for the functioning of the management of force, the care of persons in custody, internal investigative and disciplinary system and other aspects of policing;
b. Making recommendations to the Ministry/SAPS regarding problems or improving standards.
However the latter would require that the ICD's information management and research function become even more sophisticated. A more modest approach would therefore simply emphasise the value of an audit function in guiding the process of setting priorities within the ICD.
(ii) An investigative capacity involving highly targeted and effective investigations – these would be targeted at problem units or individuals. The ICD would maintain a small caseload i.e. a realistic caseload relative to its number of investigators. The ICD would have a mandate that provides it with the flexibility to conduct investigations in terms of its identified priorities. The ICD could therefore investigate selected cases itself. Supervision and monitoring could therefore be investigation mechanisms that the ICD would also use to handle some of the cases that it selects.
Note that the ICD has to develop a specialist understanding of the investigation of police crime and misconduct. Currently much training for instance is based on generic police detective training. While this is of value, the ICD needs to develop an understanding of the specifics of police crime and misconduct. This involves understanding issue such as:
The role of the use of force in policing;
The nature of police occupational power and the link between this and police corruption and other abuses of police power;
The relationship between controlling corruption and controlling abuses of the capacity to use force;
Factors impacting on failures of service delivery such as the failure to provide proper policing services to victims of domestic violence.
- The special capacity of the police to defeat and undermine investigations and complaints against them.
A key question concerns whether the focus of such investigations should only be serious crime or should extend to other major problem areas such as discriminatory policing which contribute to service delivery failures of a serious nature (e.g. in relation to domestic violence). Our answer is that the ICD must develop a sophisticated approach to setting priorities in which the ICD's investigative capacity is targeted towards helping to address key problems of police crime and misconduct.
(iii) A responsibility for preliminary investigations into all deaths in police custody or as a result of police action – thereafter the ICD should supervise the police investigation unless there is prima facie evidence of police criminality. The implication is that the ICD will free up investigative capacity when the number of these deaths is reduced. Furthermore the ICD should recommend administrative review procedures by the police in relation to use of force incidents which are prima facie not linked to criminality. Before a system of administrative review could be implemented on a larger scale such a system would have to be piloted and refined.
The Independence of the ICD
Currently the ICD reports to the Minister of Safety and Security and its recommendations are made either to the Minister or, where they concern prosecutions or disciplinary actions, directly to the Attorney General or to the SAPS itself. It has been suggested in the current ICD discussion document that the ICD's independence is compromised by its reporting relationship to the Minister of Safety and Security and that it would be of benefit for the ICD to be located independently of the Ministry.
In addressing this issue there is often a tendency to confuse two issues which are in some ways separate. These are:
Whether the ICD needs to be more independent from the Department of Safety and Security in order to be more effective?
The issue of credibility and public trust.
The argument put forward in the ICD discussion paper is that he two issues are linked in that in order to be effective the ICD needs to have public trust. However we do not agree with an approach which prioritises public trust in addressing this issue for four basic reasons. These are:
International experience suggests that independent mechanisms are inherently limited in their ability to win public trust. For reasons which we do not have space to go into here (essentially the greater ability of the police as opposed to complainants to establish credibility)9 there will always be a high degree of public dissatisfaction with the outcome of complaints which they have lodged against the police whether these are dealt with by the police or an external body. In effect the "independence" of an oversight mechanism does not necessarily enable it to win public trust. An approach that emphasises public credibility and public confidence above all else is likely to prove to be counterproductive. If the ICD bases its approach to issues on winning public trust it will inevitably be disappointed.
The ICD can only therefore hope to win a limited degree of public trust. To the extent the ICD can win public respect this can best be done by demonstrating its effectiveness. Making the ICD more independent won't necessarily make it more effective. To be more effective the key issues for the ICD are the powers to carry out its role effectively, an appropriately defined legislative mandate and strategic vision, and effective management.
How then should the effectiveness of the ICD be measured? The priority is to have a mechanism, which ensures the reliability of the police internal systems for managing complaints, internal investigations and discipline. The key issue is therefore to ensure that the ICD is effective as a mechanism for ensuring that these systems can be relied on. In summary the priority is the reliability of the internal mechanisms of the police and the effectiveness of the ICD in ensuring this reliability.
In order to be effective in this way the ICD needs, above all, to demonstrate its impartiality. The ICD needs to develop a reputation for impartiality which is recognised by both the police and members of the public. In order to be effective the ICD therefore needs to place as much emphasis on winning credibility with the police – on the basis of its professionalism and impartiality – as it does on winning public confidence. In fact this should be seen as the major argument for increasing the independence of the ICD rather than an approach which emphasises public trust over the importance of credibility in the eyes of members of the police service.
Recommendation 14: The basic motivation for becoming more independent of the Ministry needs to therefore be seen as making the ICD stronger and giving the ICD more authority to play its role effectively in order to be recognised as an independent and impartial oversight body which is respected both by the police and members of the public.
Furthermore there are potentially major risks for the ICD in becoming more independent. One of these risks is that the ICD will marginalise itself in terms of its ability to get access to reasonable financial resources from government. Arguably it may therefore be better to shift the ICD's accountability to, for instance, the National Director of Public Prosecutions or to make it answerable to the Minister of Justice. If this is done than the ICD will not be totally independent either but may have a greater ability to ensure adequate financing by government. However essentially what needs to be recognised is that there is not an approach to this issue which is problem free.
Recommendation 15: The ICD needs to develop a more clearly formulated approach to this issue. In particular this approach should take into account the fact that for it to have equivalent status to bodies such as the Human Rights Commission or the Public Protector would require amendment to Chapter 9 of the Constitution. It would appear that unless the ICD is linked to one or other government department such as the Ministry of Justice (or one of the Chapter 9 institutions such as the Public Protector) it may become more difficult for the ICD to raise appropriate finances. Furthermore, in order for ICD recommendations to have proper authority, it will probably be necessary for the ICD to operate through a body which has recognised authority, such as the Ministry or Public Protector.
Recommendation 16: Whether or not the ICD becomes more independent of the Ministry amongst its most important relationships will still be those with the Minister, the Secretariat, MECs and the SAPS. To be most effective in fact the ICD needs to focus extensively on "relationship building" with these role players at national level and in the provinces. While becoming more independent of the police should not necessarily make the ICD weaker in relation to the SAPS the ICD needs to ensure that in becoming more independent it does not marginalise itself but effectively builds relationships and common understanding with these parties.
Recommendation 17: Furthermore one of the benefits of the current legislative framework is that the legislation which governs the ICD directly governs SAPS members. If separate legislation is formulated the SAPS Act must still spell out the responsibilities of SAPS members in relation to co-operation with the ICD.
Note: the idea of the ICD becoming more independent relates primarily to the current situation where the ICD reports to the Minister of Safety and Security and does not relate to other issues such as issues of ICD personnel. In terms of the approach which is taken here (see Section 5) which emphasises improving the effectiveness and integrity of the mechanisms of internal control within the SAPS we are not in principle opposed to the idea of the SAPS internal investigative affairs personnel serving on secondment with the ICD.
The Powers of the Independent Complaints Directorate
Recommendation 18: Some of the issues, which need to be addressed in clarifying the powers of the ICD, include:10
(a) Immediate notification
Provisions relating to notification of the ICD (relating particularly to deaths in police custody or as a result of police action) need to spell out very clearly that notification must take place immediately and, should indicate that failure to ensure that this happens constitutes misconduct, and should identify procedures for such misconduct to be dealt with.
The ICD should have the power to specify other categories of complaints – in relation to which it should receive immediate notification.
(b) Powers of ICD investigators
The nature of the police powers of ICD investigators need to be specified – this should indicate clearly the terms on which ICD investigators may exercise such powers as the powers of search and seizure. ICD investigators need to be able to search police buildings without a warrant.
Police duty of co-operation
ICD investigator (and possibly other staff) need to be provided with the power and authority to ensure that they receive co-operation from members of the SAPS whatever their rank.
The ICD should, on request, be able to obtain full and immediate access to documentation and other information that is under the control of the SAPS complaints investigation and management system. There should also be obligations placed on the SAPS to provide the ICD with detailed information relating to complaints and criminal and disciplinary cases being investigated against SAPS members, and regarding disciplinary proceedings when requested to do so. Special provisions should be developed in relation to information exchange relating to undercover investigations such as those conducted by the anti-corruption unit.
It should be explicitly stated that the duty of co-operation extends to the duty to answer questions put by ICD investigators unless this will be contrary to the right against self-incrimination.
(d) Power to hold inquiries and to compel police officers to answer questions
- The ICD should have the authority to call investigative inquiries similar to those provided for in Section 28 of the National Prosecuting Authority Act, 32 of 1998 in which police officers are compelled to answer questions put to them.
(e) ICD recommendations
The ICD should have the power to demand a written explanation from the SAPS in relation to steps that have been taken in compliance with any recommendation made by the ICD or why such recommendations have not been complied with. The ICD or a complainant should have the power to be present and give evidence at a disciplinary hearing. A procedure should be established for the ICD to appeal against any decisions by the SAPS not to follow ICD recommendations and for such SAPS decisions to be reviewed.
The Minister of Safety and Security should also be compelled to account for steps that have been taken in relation to recommendations made to the Minister by the ICD.
The ICD should have the authority to recommend the suspension of police officers.
(a) Personnel issues
(i) General issues
There are several general personnel issues that need to be dealt with. These include:
- The training of ICD staff;
- Issues to do with staff morale.
The issue of training has been covered fairly comprehensively in a recent training needs analysis conducted for the ICD.11 Key issues include appointment of a designated training officer and the development of common understanding within the organisation around the organisations objectives.
Recommendation 19: The ICD should give detailed attention to the recommendations made in the above mentioned training needs analysis. However training needs should be clarified in relation to:
(ii) Investigative personnel
The issue of staff morale is particularly relevant to investigative personnel. Sources of poor morale can potentially be traced to problems of investigative management, to the lack of focus of the ICD which is linked to its vaguely defined mandate and strategic vision, and to the general organisational environment.
A further problem however appears to be that the ICD has adopted a dysfunctional approach to the appointment of investigative staff. Thus the perspective of the ICD as identified in its first annual report for instance appears to imply that it is only with a degree of reluctance that the ICD employs former members of the SAPS. Thus it is likely that this type of attitude contributes to a feeling that these investigators are essentially unwelcome in the ICD. In fact independent investigative units in other countries have recognised that personnel with experience of the police environment can be essential to the effectiveness of the independent investigative unit. In the Ontario Special Investigations Unit for example this approach has been applied not only to investigative staff but also to senior management with a former police officer being appointed as deputy director of the SIU.
This problem is aggravated by the fact that there are limited options for advancement or promotion for investigators within the ICD. A situation of this kind is likely to have the consequence that the ICD is generally unable to attract investigative staff of sufficient calibre. Realistically it is likely that the ICD will be unable to offer extensive opportunities for advancement to many of its investigators.
Recommendation 20: One creative solution to the problem would be for the ICD to enter into an arrangement with the SAPS in terms of which SAPS investigators from internal investigative units can apply to be seconded to the ICD. Manby dealt with this issue in her report on the ICD which stated that,
The independence of civilians is essential to give credibility to the system, but police officers have inside knowledge and skills that are also important. In addition, seconding police officers can act as an education to their colleagues, breaking down myths about the functioning of independent investigations. The ICD should be accordingly be staffed with a mixture of civilian and police investigators … . It should be given the power to select officers to serve with it, and working for the [ICD] should be sufficiently well-rewarded that it is regarded as an elite and desirable position, that does not harm promotion prospects and benefits on transfer back to the force. (1996. p. 448)
It is essential that the ICD develop motivated investigative personnel who are willingness to "go the extra mile" in achieving results in their investigations.12 A secondment arrangement of this kind would potentially not only benefit the ICD but also contribute to building up a cadre of experienced "internal affairs" investigators who are influenced by the ethos of the ICD. While there are risks involved in such an approach these can be limited through a continual emphasis from ICD management on the professionalism and impartiality of ICD investigators.
(iii) Information management and communications personnel
Recommendation 21: The ICD already has some investigative capacity. As is discussed below in while the ICD faces significant challenges in ensuring that this investigative capacity is used effectively in some ways the greatest need which the ICD faces is to improve its information management and analysis and communications capacity. The implication of this submission is therefore that the ICD needs to give serious consideration to the development of its human resources in this regard.
(b) Information management, research, communications and publicity
The framework put forward in this submission emphasises an approach in terms of which the ICD relies strongly on information gathering and analysis in order to be able to set priorities and potentially to feed into the types of recommendations which it makes to the SAPS, Minister etc. It is apparent also that the provision of reliable and informative information to the media will potentially contribute to respect for the ICD and assist the ICD in giving publicity to its work and in realising its objectives.
Recommendation 22: The implication is that the ICD needs to substantially improve its capacity for information gathering and analysis and its communications ability. Issues, which need to be addressed, include the reliability of information provided by the ICD, consistent and clear terminology and approaches to classification, and clarity in communications with the media and other outside bodies. Information systems that use clear and consistent categories for classification will support much greater clarity on the part of the ICD in communications with the media.
Experience thus far has suggested that the issues which the ICD is tasked with dealing with are easily prone to being misunderstood. Improving the quality of its communications can contribute significantly to the effectiveness of the ICD.
Recommendation 23: Over the last few years the ICD has been able to benefit from research conducted by independent NGOs which have been funded by foreign donor money. The ICD needs to however develop a long-term approach to the issue of research and to the financing thereof. This implies either that the ICD establish a bigger in-house research capacity or that it actively establish partnerships with organisations with a research capacity making use of tender procedures.
(c) Immediate notification of complaints of torture
Recommendation 24: In addition to amending the provision (ss53(8) of the SAPS act) to ensure immediate notification of the ICD in cases of deaths in police custody or as a result of police action, there should also be immediate notification of alleged cases of torture. This would be consistent with the prevention of torture policy.
It is clear that there is value in having an independent oversight mechanism in South Africa. However in debating the form which such a body should take we need to take into account the context of this country as a developing one. This implies that we cannot simply take on board models from other countries but need to be very clear about the basic assumptions, which we are making. The debate that we need to have then is something along the lines of 'assuming that there is benefit in an independent mechanism concerned with police accountability how should we define the responsibilities/mandate of this mechanism taking into account current realities'.
In this submission we have answered this question partly by arguing that the model of a South African oversight mechanism as a complaints body is not sustainable, realistic or desirable. What is emphasised very strongly throughout this submission is that the first priority is that all of the problems (complaints, police crime and misconduct, the prevention of deaths) which have become the problems of the ICD need to be recognised above all else as problems which the SAPS must take primary responsibility for. The big responsibility of the independent oversight mechanism in South Africa should therefore be to ensure that the police are dealing with these problems effectively. It needs to be provided with full powers to carry out this task.
Recommendation 25: One implication of this argument (some people may see this as a cosmetic issue) is that to avoid continuing confusion on the part of the public the ICD must change its name.13 Essentially the ICD should become an independent oversight and investigations directorate responsible for ensuring that the task of investigating and preventing police crime and misconduct is being dealt with properly by the police.
2 Section 222 of the Interim Constitution states in full that "There shall be established and regulated by an Act of Parliament an independent mechanism under civilian control, with the object of ensuring that complaints in respect of offences and misconduct allegedly committed by members of the [police] Service are investigated in an effective and efficient manner." While the Interim Constitution has been repealed section 222 is by implication incorporated in section 53(1)(a) of the SAPS Act.
7 See in particular on this issue, Bruce, D (1999) "The Skill of Policing: Improving the Management of the Use of Force in the SAPS through administrative review". Centre for the Study of Violence and Reconciliation. Also see Dissel, A, and Ngubeni, K (1999) "A Lonely Way to Die: An Examination of Deaths in Police Custody" Centre for the Study of Violence and Reconciliation.
8 The issue of the prevention of deaths in police custody or as a result of police action is discussed in Bruce (1999) and Dissel and Ngubeni (1999) – see Footnote ii as well as in Bruce, D (1998) "Towards A Strategy for Prevention: The Occurrence of Deaths in Police Custody or as a Result of Police Action, Gauteng, April – December 1997". Centre for the Study of Violence and Reconciliation.
10 This section draws partly on Manby, B (1996): The Independent Complaints Directorate: an opportunity Wasted. South African Journal on Human Rights. Volume 12, No. 3.
12 See Altbeker, A (1999) "Strategic Priorities of the ICD". (Centre for the Study of Violence and Reconciliation.). which motivates for an investigative approach which emphasises "making the merits" of the case.
13 One other implication of the approach taken here is that, if the ICD ceases operating as a complaints body, there would still need to be a strategy for dealing with complaints already received by the ICD.
© Centre for the Study of Violence and Reconciliation