Police Minister Nathi Mthethwa and the national police commissioner
The Institute for Security Studies strongly supports the proposed Western Cape policing law, which seeks to broaden and strengthen the oversight responsibility of the provincial government over the police.
Provinces currently have no direct control over the day-to-day operations of the South African Police Service.
The provincial ANC has criticised the Bill, saying it showed that the ruling Democratic Alliance (DA) was a federalist party and was trying to secede from the rest of the country.
If the Western Cape Community Safety Bill is passed in its current form, police will have to account – to the provincial minister of police – for lost and stolen firearms, the death of police officials in the execution of their duties, death by police action and in police custody, and the allocation of funds and resources.
In its written submission to the provincial legislature, the institute praised the Bill, saying it would be an appropriate intervention for strengthening police policy oversight and accountability.
The ANC has threatened to approach the Constitutional Court if the Bill is passed in its current form.
Police Minister Nathi Mthethwa also threatened to approach the courts shortly after the Bill was introduced in February last year, claiming it was unconstitutional.
Police misconduct
Introducing the Bill, provincial community safety minister Dan Plato said it focused on detecting patterns and practices of police conduct, identifying systemic problems and making recommendations to improve policing in the province.
The Bill also proposes the creation of a provincial police ombudsman to “offer the people of the Western Cape protection against police misconduct”.
The proposed Bill also provides directives for the establishment of community police forums (CPFs) and a CPF board. It proposes the accreditation and support of neighbourhood watches in order to improve the functioning and accountability of the CPFs, and the registration of security service providers.
It calls for the provision of a database of community organisations that are actively involved in safety, and assistance for these organisations in the form of training and other resources.
Community organisations on the database would also have to report crime incidents and safety concerns to contribute to the determination of the province’s policing needs and priorities.
The institute’s submission says that provincial governments have experienced difficulties in fulfilling their policing mandates in an effective, consistent manner. “There have also been challenges with regard to co-operation between provincial governments and the South African Police Service when they have sought to exercise this mandate,” said Gareth Newham, the institute’s head of governance, crime and justice.
Responsibilities
Newham said a law that defined the powers of the provincial government in relation to policing matters, as long as it was consistent with the Constitution, had the potential to enhance clarity and strengthen the police oversight mandate of provincial executives.
“Our assessment of the Bill is that it seeks to give effect to powers that, according to the Constitution, provincial executives are entitled to exercise,” said Newham.
The ANC’s provincial secretary, Songezo Mjongile, said the proposed law was unconstitutional in both letter and spirit. He said the Bill sought to undermine Sections 205 and 206 of the Constitution.
Section 205 (2) states: “National legislation must establish the powers and functions of the police service and must enable the police service to discharge its responsibilities effectively, taking into account the requirements of the provinces.”
Mjongile charged that the Bill was a surreptitious attempt to expand the powers of the provincial MEC of community safety and the provincial cabinet. He said this would allow the DA to take more centralised control by diluting the communities’ right to elect members and leaders and appoint their own members “to protect the safety and security interests of the privileged communities”.
“The Bill contravenes the Constitution because the province intends to assign powers to the MEC for policing functions through provincial legislation. This encroachment is not only unconstitutional but it will also create inherent constitutional, legislative and intergovernmental conflict and tension as well as the possible duplication of functions.”
Mjongile said there are already numerous existing structures and institutions that have been established to fulfil similar functions, such as the Independent Police Investigative Directorate and the ombudsman’s office.