Policing: One policy size does not fit all

Phiyega's predecessors, Bheki Cele and Jackie Selebi, suffered a similar fate. (John McCann, M&G)

Phiyega's predecessors, Bheki Cele and Jackie Selebi, suffered a similar fate. (John McCann, M&G)

Once again, a South African Police Service national commissioner is facing a board of inquiry into her fitness to hold office and may be suspended pending the outcome of this process.

Riah Phiyega’s two predecessors suffered a similar fate. Bheki Cele was found to be unfit for office by a board of inquiry and dismissed by President Jacob Zuma on June 12 2012, the day before Phiyega was appointed. Cele himself took over from Jackie Selebi, who was at that time facing charges of corruption on which he was ultimately convicted.

Against the backdrop of what the national development plan (NDP) calls “the serial crisis of police leadership”, the idea of further centralising control is ludicrous.
But at the same time as the Phiyega saga is unfolding, the ANC has again tabled a discussion document stating that the creation of a single police service, under the SAPS national police commissioner, is an urgent priority.

This time it is in preparation for the national general council (NGC) in October. As in 2007 and 2012, we can expect that, in the near future, there will be an ANC resolution stating that municipal police services must urgently be incorporated into the SAPS. As the NDP argues, better processes for appointing the national commissioner are a requirement if we are to have more reliable police leadership.

But what the serial crisis also highlights is the absurdity of placing all authority for policing under a single person. No person should actually have overall operational command over 150 000 police, the current number of police officers in the SAPS. What the country needs is not only reliable police leadership but also a comprehensive restructuring of policing to create a more fully democratic and responsive policing system.

The origins of the idea that South Africa must have only one police service date back to the efforts by Zuma’s allies to neutralise the arms deal-related corruption investigation against him by the directorate of special operations (the Scorpions).

It is now almost eight years since the ANC resolution, stating “the constitutional imperative that there be a single police service should be implemented”, was passed at Polokwane. A careful reading of the Constitution, however, shows that there is no requirement that South Africa should have only one police service. Beyond the urgent need to eviscerate the Scorpions at that time, there has also never been any real enthusiasm in the ANC for this idea.

Mostly it has seemed that the ANC’s concern with the issue extends no further than the need to pay lip service to it. The core problem has, however, become that the ANC can no longer sustain the illusion of credible commitment to this idea without some form of action. This does not mean it has any genuinely greater enthusiasm for it. But it may mean that steps of some kind are taken to advance it.

Interestingly, this NGC discussion document no longer motivates for the single police service on the basis that it is a constitutional imperative. Instead, it is motivated for in the name of more effective policing.

This is a prudent move on the ANC’s part. If implementation of the single police service was motivated for in terms of the Constitution it could be challenged in the courts. It is likely that any court would dismiss the idea that there is any requirement in the Constitution for a single police service.

Motivating for the absorption of municipal police services into the SAPS on the grounds that it will enhance the effectiveness of policing enables the ANC to avoid possible legal impediments. The Constitution provides that municipal police services are regulated by national legislation. This means the ANC can use its parliamentary majority to make whatever modifications it wants to the legislation as long as it does not seek to legitimate this on the basis that there is a constitutional imperative for it to do so.

The principal change envisaged by the NGC document is that a division will be created in the SAPS, headed by a deputy national commissioner, that “would be responsible for” municipal police.

Municipal police chiefs would have to be appointed by municipalities in consultation with this commissioner. This amounts to nothing more than adding a further layer of bureaucracy to the governance of municipal police.

Some are concerned that the initiative reflects an ANC agenda to establish total control over the security apparatus. But in the six metropolitan areas in which the only significant municipal police services exist, SAPS members already heavily outnumber municipal police.

The ANC government already has an elaborate security apparatus under its control not only through its national control of the 150 000 strong SAPS but through its control of the intelligence system and the military. It therefore has no reason for anxiety about the challenge posed to this monopoly of control by the roughly 10 000 metropolitan police distributed across the metros.

The initiative then is nothing more than a type of public posturing in the name of policing policy. If it is finally brought into effect, it will do nothing to increase the police’s effectiveness.

Highly centralised systems such as the one we already have frequently characterise former colonial and authoritarian systems. Under these systems, centralised policing facilitates domination and repression. During the critical discussions on the architecture of control over policing during the pre-1994 multiparty talks, the ANC resisted any model of government that conceded any significant level of provincial control over police. This, it was feared, would enable regions to resist its transformative agenda, at worst feeding into the danger of regional instability and secession.

The quasi-authoritarian nature of the current system and serial crisis of national police leadership are not the only reasons change is necessary. Notwithstanding the constitutional requirement that they do so, our national ministers of police have also consistently failed to produce a national policing policy.

The current policy, first promised in 2009, is still in draft white paper form. Along with the obligatory endorsement of the “imperative” for creating a single police service, it largely consists of platitudes. In effect national government has not been able to provide a credible national policing policy since 1998.

Transferring a subsidiary policy- making authority to the provinces would enable movement away from this perpetual bottleneck in policy-making and the current “one size fits all” approach that goes with it – and make room for greater responsiveness and innovation.

When we do finally get to the point where considerations to do with the effectiveness of police are given primary consideration, there would be a substantial restructuring of the architecture of policing in South Africa.

Responsibility for oversight over all police in their jurisdiction would be transferred to the metros while provinces will have greater authority over all other police in their areas of jurisdiction.

The provinces and metros would have a subsidiary policy-making authority that enables them to develop their own policing policies in so far as these do not conflict with national policies. They, rather than the national commissioner, would also have primary responsibility for appointing the provincial commissioner, though they would also be required to have effective processes for doing so.

Some of this would require constitutional amendments but these would be consistent with the broad principles on which the current architecture of police governance is based, in particular the idea that ultimate authority over police should be retained at the national level.

In addition to being responsible for setting national standards, the national government would retain primary control of a core police service that is much smaller than the current SAPS. Among other components it would include a national level capacity for the investigation of organised crime and corruption and a national public order unit. There would also be a national inspectorate and the training system would be subject to centralised control.

Then we might finally be able to get beyond the current postcolonial, post-apartheid, quasi-totalitarian limbo and the work of developing genuinely democratic and responsive policing in South Africa can begin.

David Bruce is an independent researcher with a specialisation in crime and policing.

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