Cele’s unconstitutional IPID Bill

Dear Editor

The Police Portfolio Committee on Police today approved a motion of desirability on the IPID Amendment Bill which was found to be unconstitutional by the Office of the Chief State Law Advisor (OCSLA), a Parliamentary Legal Advisor and an Advocate outside of government.

The OCSLA refused to certify this unconstitutional Bill yet the ANC members of the Police Committee decided to proceed. It is unprecedented that an uncertified Bill is processed by Parliament.

The current Bill before Parliament has removed any role for Parliament in the appointment process of the Executive Director of IPID and placed the power entirely in the hands of the Minister of Police. The DA has long held the view that Parliament should play a bigger role in the appointment process of the Executive Director of IPID in order to strengthen the independence of IPID.

The Bill sent to Parliament seeks to weaken the independence of IPID and is contrary to the explicit constitutional expression for independence of the police watchdog contained in section 2026 (6) of the Constitution which provides for the establishment of an independent police complaints body that must investigate any alleged misconduct of, or offence committed by, a member of the police service.

The IPID Act currently makes explicit provision for Parliament to approve the Ministerial recommendation of a candidate for the position of the ED of IPID following a shortlisting process. The amendment bill which was gazetted for public comment by Cabinet in 2022 removed Parliament from the process and inserted an independent panel to make recommendations to the Minister.

The final version sent to Parliament by Cabinet, and not seen by the public, was stripped on any independence in the appointment process removing independent panel and placing all of the power in the hands of the Minister. Following the refusal by the OCSLA to certify the Bill as constitutional, the Minister solicited an external legal opinion from an Advocate who confirmed the opinion of the OCSLA.

Further to the obvious unconstitutionality of the Bill, we believe that the process followed by cabinet is flawed and that there are nefarious intentions at play.

Minister Cele did not attend any of the committee meetings dealing with this Bill and was therefore unable to answer important questions such as:

• Whether Cabinet was briefed on the unconstitutionality of the Bill ?
• Why, after receiving the opinion of the OCSLA, did the Minister still pursue an external legal opinion ?
• Why was the gazetted version of the Bill, which included an independent panel, changed to remove any independence whatsoever?

It is clear that Minister Cele is trying to consolidate control over IPID so that he can control the entire policing value chain. If the Minister gets his way South Africa will have a police watchdog that cannot bite or bark.

The DA will now write to the Committee Chairperson, Honourable Seabi, to request a legal opinion from the State Law Advisor on whether the process followed by Cabinet is valid considering that the public was not given an opportunity comment on the final version of the Bill sent to Parliament. We will also write to the President to request his confirmation that Cabinet was made aware of the unconstitutionality of the Bill.

It is clear that Minister Cele is trying to consolidate control over IPID so that he can control the entire policing value chain. If the Minister gets his way South Africa will have a police watchdog that cannot bite or bark. IPID is supposed to be the Police watchdog, not the Minister’s lapdog.

Regards

Andrew Whitfield MP
DA Shadow Minister of Police