By Mary de Haas
The call by the DA to devolve further policing powers to provinces should be seen in the context of the gross mismanagement of the SAPS which facilitates nepotism, corruption and incompetence. However, this call must be opposed.
Provinces already enjoy sufficient policing powers to improve performance in their own regions and a national solution to the present crisis is needed. In this respect, opposition parties represented in national and provincial governments could play a far more proactive role than they are currently doing.
The current policing dispensation is a product of agreements reached during the pre-1994 negotiations, which led to the 1996 Constitution. The major parties, the ANC and the National Party, pressed for a unified, centralised state because the priority was to build a united, democratic nation from what had been a fragmented, racially and linguistically divided South Africa.
The maintenance of order is the prime responsibility of a state, which controls policing for that purpose. However, during the negotiations, smaller, conservative negotiators pushed for far greater devolution to regions in the form of federalism (though some proposals went beyond that). Under tremendous pressure from extreme violence levels, the major negotiators made concessions to greater provincial powers, resulting in a system of co-operative governance between different government levels.
Provinces enjoy considerable policing powers. The appointment of provincial commissioners must be approved by their governments, which can push for a national inquiry if the commissioner’s conduct calls for it.
The Western Cape and KwaZulu-Natal have held their own inquiries into policing. Subject to the constitutionally compliant provisions in the SAPS Act, provincial commissioners take decisions about operational matters, which may include station and district demarcations, the maintenance of stations, and the numbers of members and units.
While provincial heads of Operational Response Services and Crime Intelligence report to a national head, their provincial heads are required to work with regional governance. For example, intelligence required for operations should be shared with the provincial police.
Some legal department powers rest with provinces which control community policing forums and boards. Collaboration and dispute resolution is facilitated by a policing board on which provincial and national commissioners sit.
Provinces also have Civilian Secretariats that seem to lack any proper oversight from politicians. There is agreement that those tasked with maintaining order have failed conspicuously to prevent, combat and investigate crime, but that is not the fault of constitutionally compliant laws: it is the fault of the commander-inchief, the president, and the grossly incompetent police minister he refuses to replace.
The SAPS symbolises what South Africa has become since 2009: a criminalised, felonious state in which holding political and government office is a path to personal enrichment not public service.
The solution to the problem is to fix the state, not break it up, which seems to be the agenda of some people associated with the Western Cape government, whose federalist agenda has also been pursued since pre-1910 Union days in KwaZulu-Natal.
There are strong arguments against federalism in South Africa with its history of contrived ethnic groups overlapping with regional politics, especially as the crucial nation-building agenda largely fell away under Jacob Zuma, and politicians continue to appeal to ethnicity for their own selfish purposes. In former federal Yugoslavia, the police played a crucial role in supporting, including with arms, Croatian and Serbian militia.
The DA is doubtless as frustrated as citizens across the political spectrum with President Cyril Ramaphosa’s failure to replace the Minister of Police Bheki Cele who neglects his policy-related job while, irregularly, running the police force operationally himself, flouting laws (for example, on cellphone seizure and the antitorture legislation), and constitutional principles (for example, accountability, transparency) with impunity.
Generally – for there are exceptions – opposition parties are not doing nearly enough oversight work on policing and supporting good policing – including whistle-blowers – while exposing corruption.
They should be taking a far more proactive stand against the complete lack of independent oversight of the police since it is the same minister who appoints the head of the Civilian Secretariat (which, like its provincial counterparts, appears to be a waste of taxpayers’ money) and the head of the Independent Police Investigative Directorate (Ipid), another proxy for Cele.
Most opposition politicians are not even doing their parliamentary oversight jobs properly. Take, for example, the National Assembly’s police committee. Six years ago, the Constitutional Court ruled that constitutional compliance required Ipid to be independent.
The National Assembly’s police committee behaves, with exceptions, like a ministerial lapdog showing complete disrespect for the Constitution by not yet having produced draft legislation to give it independence.
The DA could do South Africa a favour by using constructive mechanisms such as courts to force Ipid independence, rather than pursuing an agenda for more – and dangerous – provincial policing powers.
* De Haas is an honorary Research Fellow at the University of KZN’s School of Law and a member of the Navi Pillay Research Group on justice and human rights.