Hon Speaker, members of the executive, Members of Parliament, and comrades and friends, corruption and maladministration are inconsistent with the rule of law and the fundamental values of our Constitution. They undermine the constitutional commitment to human dignity, the achievement of equality, and the advancement of human rights and freedoms. Corruption and maladministration are the antithesis of the open, accountable, democratic government required by the Constitution. They are transnational phenomena that cross national borders and affect all societies and economies. They are equally destructive in the public and private sectors, and regional and international co-operation is essential to prevent and control corruption and related crimes.
Today in this House we are tabling a Bill that establishes an adequately independent Directorate for Priority Crime Investigation, DPCI, in line with the Constitutional Court judgment, and moreover in line with our conscientious minds.
As the Minister has said, on 17 March 2011 the Constitutional Court declared Chapter 6A of the South African Police Service Act, Act 68 of 1995, which established the Directorate for Priority Crime Investigation, the DPCI, to be inconsistent with the Constitution of the Republic of South Africa and invalid to the extent that it failed to secure an adequate degree of independence for the DPCI.
As a result of the declaration of the invalidity, as the Minister has said, the Constitutional Court suspended it for a period of 18 months to afford Parliament an opportunity to remedy the defect.
Can I mention here that this judgment was a split judgment? Out of the ten judges who listened to the arguments, four ruled that the chapter was constitutional, one judge abstained and five ruled that the chapter was unconstitutional. We remain bound by and respect the majority judgment.
In ruling on the constitutionality of Chapter 6A, the Constitutional Court asked two questions: firstly, whether the Constitution required the state to establish and maintain an adequately independent body to combat corruption and organised crime; and, secondly, whether or not the DPCI met the requirements of independence.
In answering the first question, the court concluded that the Constitution indeed imposed an obligation on the state to establish and maintain an independent body to combat corruption and organised crime.
In answering the second question, on the independence of the DPCI, the court concluded that the legislation did not meet the requirements of independence on the basis of the following issues: firstly, the DPCI was insufficiently insulated from political influence in its structure and functioning, thereby lacking the necessary structural and operational independence to be an effective corruption-fighting mechanism; secondly, the conditions of service of its members, particularly its head, made it vulnerable to undue political influence, due to a lack of security of tenure of the members of the DPCI; and, thirdly, the Ministerial Committee's accountability and oversight of the DPCI was found to undermine its independence, "as the Ministerial Committee possessed untrammelled power to determine policy guidelines in respect of functioning of the DPCI, as well as the selection of national priority crimes."
In fact, the judgment was too critical of the Ministerial Committee powers. It found that Parliament's oversight function was undermined by the level of involvement of the Ministerial Committee. The judgment further stated that the complaints system involving a retired judge, regarding past incidents, did not afford sufficient protection against future interference.
However, the court was unanimous that Chapter 6A of the South African Police Service Act could not be invalidated on the following bases: that it was irrational; that Parliament had failed to facilitate public involvement in the legislative process that led to its enactment; that section 179 of the Constitution obliged Parliament to locate a specialised corruption- fighting unit within the National Prosecuting Authority; that the creation of a separate corruption-fighting unit within the SAPS was unconstitutional; and that the legislative choice to abolish the Directorate for Special Operations, DSO, and to create the DPCI offended the Constitution. It is important to note that in these matters that I have just mentioned the Constitutional Court found nothing unconstitutional.
The Constitutional Court defined the independent anticorruption body. In this regard, the Court endorsed the definition of the Organisation for Economic Co-operation and Development, which provides that independence means: firstly, that anticorruption bodies should be shielded from undue political interference; secondly, the political will to fight corruption is the key; thirdly, the level of independence can vary according to specific needs and conditions; fourthly, it is the structural and operational independence that is important; fifthly, there is a clear legal basis and mandate for a special body, department or unit, and this is particularly important for law-enforcement bodies; and, lastly, that transparent procedures for the appointment and removal of the director, together with proper human resources management and internal controls, are important elements to prevent undue interference.
On structural and operational independence, the Constitutional Court ruled that what is required for an anticorruption body is not full independence, but an adequate level of structural and operational independence, secured through institutional and legal mechanisms to prevent undue political interference, and appropriate to the nature of such an organisation.
The Constitutional Court further ruled that the public's perception of independence also plays an important part in evaluating whether an entity is, in fact, independent. In determining the public perception of independence, the Constitutional Court drew up a test, which involves a reasonably informed and reasonable member of the public, who will have confidence in an entity's autonomy-protecting features, which is important in order to determine the degree of independence. One will not just go to a court and claim that members of the public have no confidence in this directorate. One will have, in the structure and operation, to prove to the court such claims.
The Constitutional Court appreciated the following: that our legal system requires some level of executive involvement in any area of executive functioning - I think this is important; that the international agreement issue requires the Republic to establish an anticorruption agency in accordance with the fundamental principles of the legal system; and that what is required for an anticorruption body is not full independence, but an adequate level of structural and operational autonomy.
What we have just outlined is the core and gist of the Constitutional Court judgment. Allow me to explain to the House the legislative process that unfolded in Parliament, lest we are misled into doubting our own process.
It is normally not necessary to bring to the attention of the House the Bill or legislative processes that have taken place in Parliament. However, it is important to do that in this debate. The South African Police Service Amendment Bill was tabled in Parliament on 23 February 2010 by the Minister of Police.
It was then referred to the portfolio committee on 28 February 2012. On 7 March 2012, the portfolio committee received a briefing on the Bill from the Civilian Secretariat for Police. I must indicate that many civil organisations and legal professionals attended that meeting. The process that was to follow, as per the portfolio committee programme, was outlined by the chairperson in that meeting.
On 9 March 2012 the Bill was advertised in most of our main national newspapers, such as Ilanga, Mail & Guardian, Sunday Times, Business Day, New Age, City Press, Sowetan and Rapport, and written submissions from interested individuals and organisations were invited.
The closing date for written submissions was 27 March 2012. This was well in line with Parliamentary procedures, which call for two weeks plus a weekend for the written submissions. During that time the portfolio committee received just 20 written submissions. We then decided to extend the due date for written submissions to 10 April 2012, in which time only one written submission was received, and this gave a total of 21 written submissions.
Of the 21 written submissions, 12 were substantive and 9 were one-line or very short submissions. Nine organisations were invited to come before the portfolio committee to make oral submissions, as the two other organisations indicated their unavailability. Out of the nine invited organisations, eight came and one did not turn up. We stated, however, that we would accept and consider submissions that came in, up to the time when we adopted the Bill, but nothing more came.
Let me take this opportunity to express my sincere appreciation for the written and oral submissions that all the organisations and individuals made, particularly those of Prof Pierre de Vos, who also provided alternative and constructive proposals for a directorate either outside or inside the South African Police Service, SAPS. We have included most of the proposals in the Bill that we are debating today. Mention must also be made of Prof Mhango of Wits School of Law for his independent and well-thought- through submissions.
We set aside four days for oral submissions but, as indicated above, we received few substantive submissions, so we ended up listening to them over two days, that is on 24 and 25 April. The portfolio committee started with its deliberations on the Bill on 2 May and easily adopted the Bill on 16 May and we are debating it today, 23 May 2012.
Let me mention that this is the fourth Bill that the portfolio committee has processed during this term. It is the only Bill that took almost 12 weeks to process - from the time it was referred to the portfolio committee on 28 February 2012 until the day of debate. The Independent Police Investigative Directorate Bill, the IPID Bill, and the Civilian Secretariat for Police Service Bill both took only five weeks to process. Speaker, we gave ourselves time to be more thorough with this Bill.
By the way, we were warned even before it was drafted that it would again be challenged in the Constitutional Court. In regard to that we say, the sooner it happens, the better for all of us. [Applause.]
I want to thank members of the Portfolio Committee on Police, particularly those from the ANC, Cope, the IFP and the ACDP, who from the beginning of our legislative process were determined to produce a Bill that would stand the test of time. I am omitting the DA this time, because at one stage I thought they were missing a golden opportunity to make a contribution to the Bill we were processing. A little later they woke up to the realisation that we were committed and seriously doing our work on behalf of the approximately 50 million people of this country.
Let me once more remind members that the Constitutional Court ruled that our legal system requires some level of executive involvement in any area of executive function. The judgment further appreciated that the Constitution requires a member of the Cabinet to be responsible for policy- making. The judgment stated that these constitutional duties can coexist and will do so, provided that the anticorruption unit has sufficient attributes to fulfil the functions required of it under the Bill of Rights.
It further stated that adequate independence did not require insulation from political accountability. It said that in the modern polis that would be impossible, and it would be averse to our uniquely South African constitutional structure. Hon members, I quote the statement by the Constitutional Court:
What is required is not total insulation from political accountability, but only insulation from a degree of management by political actors ...
The heads of the Directorate for Priority Crime Investigation, DPCI, will now be referred to as the national head, the deputy national head and the provincial heads of the DPCI. This makes the point that these people are independent.
The Minister, with the concurrence of the Cabinet, shall appoint the head of the DPCI. This time around we have included the criteria which the Minister will have to consider. This is a deputy director-general, position and it has to go to Cabinet.
The Minister, in consultation with the national head of the directorate and with the concurrence of the Cabinet, shall appoint the national deputy head, as well as the provincial heads of the DPCI. In all these cases the Bill sets out appointment criteria that the Minister must consider. All of them will be appointed for a nonrenewable fixed term of not less than seven years and not more than 10 years. The period will be determined at the time of appointment.
Let me state here that an appointment by the Minister of a person to the directorate does not automatically imply that the appointee will not act independently or impartially. The Constitutional Court has previously commented that:
There is a difference between being nominated by the executive to perform a duty which calls for an independent decision and being (appointed) by the executive to perform that duty in accordance with its wishes.
Remember, "adequate independence" does not mean insulation from political accountability but a degree of insulation from management by political actors that may threaten the independent functioning of the entity.
The current head of the DPCI is accountable to the National Commissioner of Police, which the Constitutional Court found to compromise "adequate independence", particularly because the term of office of the National Commissioner is renewable, which might render him or her vulnerable to political influence. This is according to the Constitutional Court.
We have ensured that the national head of the directorate is accountable to the Minister. Hon Anneliz van Wyk from the ANC will talk about the removal from office of the national head of the DPCI, and we have strengthened the process. Chairperson, hon members and fellow South Africans, as I conclude let me remind all of us that section 199(7)(b) of the Constitution provides that, and I quote:
Neither the security services, nor any of their members, may, in the performance of their functions -
(b) further, in a partisan manner, any interest of a political party.
We are hereby humbly presenting to this august House and the people of South Africa the South African Police Service Amendment Bill, being confident that it will pass the constitutional muster. We believe that it will be a concrete and effective tool to fight commercial and organised crime and, in the main, to fight the corruption that threatens everything we hold dear and precious in our hard-won constitutional democracy.
Amandla ngawethu! [Power to the people!] I thank you. [Applause.]