A video in which the City of Cape Town’s Law Enforcement officers pulled Bulelani Qolani out of his shack while he was naked on 1 July 2020 has caused national outrage. The Executive Mayor of Cape Town, Dan Plato, who has jurisdiction over the city’s law enforcement agency – although he has ordered an internal investigation – has come under criticism for appearing to support the conduct of law enforcement officers implicated in violating the human rights of Qolani.
Plato’s response to human rights concerns during this period raises questions about the city’s attitude towards holding the municipal police officers accountable. It also raises questions about the effectiveness of the city’s oversight mechanism over the police.
The law provides for oversight mechanisms for police at municipality level. The Municipal System Act and the Local Structures Act read with section 152(1)(d) of the Constitution mandates municipalities to promote safe and healthy environments. Section 79 of the Municipal Systems Act empowers municipalities to create portfolio committees to oversee the work of the executives and the work of the municipality.
Section 80 of the Municipal Systems Act provides for the creation of Public Safety Committees, which comprises the Member of the Mayoral Committee responsible for community services or safety and elected councillors from various political parties to oversee the functioning of municipal policing agencies, which include traffic police and emergency services in providing safety and emergency services. Section 80 Public Safety Committees are critical governance institutions which must be strengthened to ensure the protection of civilian liberties against police misconduct. The oversight of the city police agencies rests with this committee.
The Independent Police Investigative Directorate (Ipid) does not have jurisdiction to investigate public complaints against the municipal traffic police departments, Law Enforcement Department and Emergency Services Departments. The Independent Police Investigative Act No.1 of 2011 (Ipid Act) mandates Ipid to investigate serious and priority crimes committed by members of the South African Police Service (SAPS) and Metropolitan Police Departments (MPD).
Here lies the problem. The Section 80 Public Safety Committees are structures comprising representatives from different political structures. The committees do not have the institutional capacity to investigate public complaints against their own policing agencies. They rely on reports from an internal investigation by management structures of these agencies.
Therefore, given the powers and functions of these municipal law enforcement agencies, there is an urgent need to expand Ipid’s mandate and strengthen the capacity of Section 80 Public Safety Committees to conduct independent investigations against complaints and allegations of misconduct of the municipal law enforcement agencies. Given the powers they have to enforce, the municipal by-laws and the equipment they carry, which includes firearms, requires Public Safety Committees to be capacitated to fulfil their oversight responsibilities.
A study conducted by the Centre for the Study of Violence and Reconciliation (CSVR) on police oversight mechanisms at local municipal levels revealed several shortcomings. For instance, the research shows that Public Safety Committees did not meet on a regular basis to consider matters related to public safety agencies. Given public concerns regarding the conduct of municipal police agencies and their level of interaction with communities, it is critical that the investigative capacity of the Section 80 Public Safety Committees are strengthened so that they can conduct their own independent investigations separate from internal investigations by police agencies.
Another CSVR study found that Civilian Oversight Committees (Civoc) lacked direction and focus, and are largely ineffective as instruments of governance over municipal police services. The Civoc is made up of civilians who receive a minimal stipend from the municipality and do the civilian oversight work on a part-time basis. The City of Cape Town has established a Civoc whose mandate is to investigate the conduct and complaints against the City of Cape Town’s three policing departments – the Traffic Services Department, Law Enforcement and the Metro Police. However, the lack of public accountability of a Civoc is a concern as it does not report publicly its investigations and outcomes.
Another layer of possible accountability against municipal police is the Office of Ombudsman. The City of Cape Town created the Office of Ombudsman in 2015 to investigate complaints about instances of abuse, unjust or unfair decisions or behaviour, and alleged maladministration. In terms of Clause 7(1) of the Ombudsman By-Law of 2015, the Ombudsman does not investigate decisions of statutory bodies such as the Municipal Council and Portfolio Committees. It, therefore, means the Ombudsman cannot review the decisions of the Public Safety Committee. The majority of complaints brought to the Ombudsman are water and waste complaints, finance directorate complaints and human settlement disputes.
Given the public concerns regarding the conduct of municipal policing agencies and the level of interaction with the public, it is critical that the municipalities that created agencies and are required to exercise oversight functions take their oversight role seriously. The weak external police oversight mechanisms are likely to increase the risk of impunity by municipal police officials.
Given the history of human rights abuses by the police in South Africa, it is critical that existing internal and external oversight mechanisms are strengthened. To ensure public accountability, Section 80 Public Safety Committees should report publicly their investigations related to complaints against municipal police. In addition to strengthening the Public Safety Committees, it is recommended that the mandate of Ipid should be expanded to include investigations of all serious public complaints against all police agencies in South Africa.
This article was originally published on the Daily Maverick on 12 July 2020