IPID Amendment Bill is unconstitutional

6 August 2023

The Democratic Alliance is of the strong opinion that the Independent Police Investigative Directorate (IPID) Amendment Bill currently serving before Parliament is unconstitutional and will not assist in dealing with police abuse and misconduct within the South African Police Service (SAPS).

Last week the Democratic Alliance wrote to the Acting Chairperson of the Police Portfolio Committee, Hon. Seabi, to request an urgent legal opinion on what we believe to be the unconstitutional IPID amendment bill referred to Parliament by Cabinet. The request has been granted and we eagerly await this opinion so that Parliament can hold cabinet accountable and, where necessary, rewrite the Bill in order to give the police watchdog the teeth it needs to bite.

In 2019, Parliament passed an amendment Bill which sought to respond to the Constitutional Court’s finding that the Minister of Police’s powers to remove an Executive Director (ED) of IPID was not constitutional (McBride v Minister of Police). At the same time Parliament neglected to deal with a further constitutional issue in the Act which deals with the need for more independence in the appointment of the Executive Director of IPID (Glenister v President of South Africa).

In 2022, the current amendment bill was gazetted for public comment with the key purpose of creating a more transparent and independent selection process for the ED of IPID - something for which the DA has been calling for years. However, the bill, which is now before Parliament, is fundamentally different to the original draft which was published for public comment in 2022, as Cabinet has rewritten the section of the amendment bill which sought to create a more independent and transparent election process. This means that the public were asked to comment on one version of the bill while Parliament has been sent an entirely different version of the bill which keeps the power in the hands of the Minister instead of Parliament. This process is not only procedurally flawed but the bill itself does not meet the threshold to be considered constitutional. Not even the Office of the Chief State Law Advisor is prepared to certify the amendment bill as constitutional - a major red flag.

The DA has previously proposed an independent panel of experts chaired by a retired Judge to shortlist applicants and for the relevant parliamentary committee to interview the shortlisted candidates. Parliament would then recommend a candidate to the Minister for approval - not the other way around, which is the status quo. The DA even drafted a Private Members Bill to achieve this level of independence but held it in abeyance in the hopes that the committee and cabinet could reach consensus on what should not be a partisan issue.

If the ANC and Committee do not come to a consensus around the independence of IPID, then we will seek to introduce this private members bill to ensure that IPID remains independent and not under the control of Minister Bheki Cele.

Parliament needs to focus on strengthening the IPID through increased independence and resources if we are to have any hope of fighting police abuse and misconduct. The culture of impunity among many SAPS members which gives rise to the violent attack on innocent civilians by Deputy President Mashatile’s blue light bullies.

Issued by Andrew Whitfield, DA Shadow Minister of Police, 6 August 2023