On Monday 13 July 2010, the South African parliament released the Independent Police Investigative Directorate Bill for public comment. This Bill seeks to re-organise and strengthen the existing Independent Complaints Directorate (ICD) and therefore presents a welcome development for civilian oversight of the police in South Africa. The ICD was established so as to meet the requirement of section 206 (6) of the Constitution that an “independent police complaints body” be established in terms of national legislation to investigate any alleged misconduct or offence committed by a member of the police service.

The ICD was initially established in 1995 in terms of Chapter 10 of the South African Police Service Act. This Act compels the ICD to investigate all deaths that occur as a result of police action or while in police custody. The Act further states that the ICD “may” investigate allegations of misconduct of police officers or other types of complaints against the police. Due to inadequate resources, most complaints of this nature received by the ICD are referred back to police for investigation.

Unfortunately, for much of its existence the ICD has suffered from a general public perception that it was a “toothless watchdog” when it came to investigating police misconduct or criminality. This is partly unfair as it is not necessarily due to shortcomings on the part of the ICD but has more to do with insufficient political support, which resulted the agency having inadequate resources to effectively investigate all allegations its receives of police wrongdoing. In addition, SAPS management appear to have demonstrated little appetite in supporting external investigations against their members and often ignore the recommendations of the ICD to take disciplinary action against police officials when evidence of misconduct has emerged.

Although the ICD has managed to secure a number of convictions of criminally orientated police officials, it was the high profile corruption case against the ex-National Commissioner Jackie Selebi that arguably did severe damage to the credibility of the body. After the ICD cleared Selebi of the allegations of corruption in 2006, it was the (now disbanded) Scorpions that gathered enough evidence to secure a conviction.

Perceptions of the ICD may be about to change, if the new legislation is indicative of increased levels of political will to hold the police accountable for instances of criminality and misconduct. According to the memorandum of objectives attached to the new bill, the name change is intended to emphasise the independence of the directorate, and rebrand it as an ‘investigative’rather than a ‘complaints receiving body’, hence the new name Independent Police Investigative Directorate (IPID).

Indeed, in this regards the bill broadens the directorate’s mandate so that in addition to deaths as a result of police action or in police custody, the following “shall” be also be investigated:

• Rape by a police officer;
• Any rape of a person in police detention;
• Allegations of torture.

On the face of it, compelling the new Directorate to investigate rape by police officials seemingly does not appear to present an onerous challenge. The ICD reported that for 2008/09, it investigated 25 rape cases involving members of the SAPS. However, the SAPS is currently not obliged to report such cases to the ICD, and therefore this may by no means present a true reflection of the number of rape cases opened against the country’s police each year. In addition, there are no accurate figures of the numbers of rapes that take place in police cells and it can be assumed that these cases will be substantially underreported. If the IPID is to play an effective role in addressing the problem of rape by police officials or that takes place in police custody, it will be important for the SAPS to report all cases to the agency. However, provision for this is absent in the draft legislation. Moreover, the IPID will have to secure additional training and resources, including adequate forensic support, if it is to make headway with such sensitive investigations.

Given allegations that certain police officials and units still routinely use torture, it is positive that the IPID mandate compels it to investigate all such allegations. However, as with sexual assault, specialised investigation capacity including forensic support is necessary if investigations are to be effective. Furthermore, as torture is not currently defined by South African criminal law, it is unclear how the directorate will identify such cases. Presently the largest numbers of criminal offences received by the ICD relate to serious and less serious assaults, and attempted murder – all offences under which torture is currently prosecuted. It may be very difficult for the ICD to differentiate between cases of torture and assault without specialised training and forensic support.

The memo also states that the “thrust” of the directorate’s work will be “to address systemic problems within the police service with a view to recommending appropriate interventions”. Specifically, the new bill states that the IPID “may” investigate:

• Systemic corruption involving police
• Corruption matters within the police referred to it by select government officials
• Inefficiency of the police to carry out its duties

At this point it is unclear what is meant by the word “systemic”. While the IPID will hopefully have the capacity to investigate specific cases of police abuse, this will not necessarily allow it to make pronouncements on the systemic reasons as to why this abuse takes place. For example, poor management and a weak internal disciplinary system would be a systemic problem that results in high levels of corruption and misconduct. The ICD would need to develop the capacity to assess management and disciplinary policies, processes and practices to provide appropriate recommendations in this regard. Moreover, the legislation is silent on the extent to which the police will have to implement recommendations by the ICD.

While the new bill suggests a promising new dawn for an independent police investigative directorate, it will take a combination of effective legislation, political will and sufficient human and physical resourcing to create a truly effective oversight body. However, no matter how effective the IPID becomes, it can never solve the challenges facing the SAPS. The only way the SAPS can improve is if its leadership takes full responsibility and is held directly accountable for establishing the necessary policies, processes and system for addressing abuses of power and misconduct committed by police members. Hopefully, the IPID will be viewed by SAPS leadership as an ally in professionalising the SAPS and not as a “watchdog” to be avoided.

Originally published by the Institute for Security Studies