Corruption Watch (RF) NPC Reg. No. K2011/118829/08 8th Floor South Point Corner, 87 De Korte Street Braamfontein 2001 Johannesburg P O Box 30630 Braamfontein 2017 T +27 (0)11 242 3900 F (0)11 403 2392 info@corruptionwatch.org.za www.corruptionwatch.org.za 06 November 2019 Honourable Tina Joemat-Pettersson Chairperson of the Parliamentary Portfolio Committee on Police Per email: tjoemat-petterson@parliament.gov.za And Members of the Parliamentary Portfolio Committee on Police Per email: bmbengo@parliament.gov.za Appointment of the Executive Director IPID 1. We refer to the above matter. 2. Corruption Watch is a civil society organisation that opened its doors to the public in January 2012. We are registered as a non-profit company in terms of the Companies Act 71 of 2008. Corruption Watch encourages and enables the public to report incidents of corruption to us and we use these reports as an important source of information to fight corruption in South Africa and hold our leaders accountable. We achieve this through research, policy advocacy, public mobilisation, strategic litigation and select investigations. 3. Since our inception, we have been working on issues relating to police corruption in South Africa. Our understanding is that the impact of police corruption on our society is rendered all the more severe inasmuch as it is the police and other institutions of the criminal justice system who are responsible for holding perpetrators of corruption accountable. Impunity prevails when the police are derelict in their duty by failing to act against corruption, or worse, when they actively collude in criminal activities. Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia 4. To this end, we keenly appreciate the role of oversight institutions such as the Independent Policing Investigative Directorate (IPID) and its commitment to ensuring public policing promotes respect for the rule of law and human dignity. We note that institutions such as IPID, and other bodies that make up our criminal justice system, are especially effective in executing their mandate when the leadership positions of these agencies are occupied by individuals who are fit, proper and whose integrity is beyond reproach. 5. Of late, Corruption Watch and other civil society bodies have been campaigning around the appointment processes of leaders of key crime and corruption fighting institutions in South Africa. The objectives of our work are largely to ensure that candidates are appointed in a transparent manner, assessed against clear merit-based and objective criteria, and that avenues for public participation in the appointment processes are made available. With this in mind, we welcome the Minister of Police, Honourable Bheki Cele’s, decision to appoint a permanent executive director of IPID and note that the purpose of our submission is to provide guidance on the upcoming recruitment process that is in line with principles of fairness, transparency and accountability. Leadership appointments to key institutions 6. In a joint submission to the Judicial Commission of Inquiry into Allegations of State Capture chaired by Deputy Chief Justice Raymond Zondo, Corruption Watch and the Institute for Security Studies (ISS) highlight how the appointments of certain compromised persons to prominent leadership positions within the criminal justice system led to the manipulation of these agencies for various nefarious purposes in order to ensure “that numerous politicians and politically connected individuals enjoy impunity against investigation and prosecution” during the era of state capture. 7. In our submission, we note the effects of these politically motivated appointments and how the interference in the criminal justice agencies directly impacted the public in a most negative way. By 2016/2017, car hijackings, residential robberies, business robberies, cash-in-transit heists, truck hijackings, and murder rates soared in the country – because the South African Police Service and Crime Intelligence were crippled internally by poor leadership appointments, as well as internal cases of corruption and criminality. During the same time period, the performance of the National Prosecuting Authority had substantially declined and public confidence in our various crime and corruption fighting institutions was at an all-time low. Our research illustrates how the political Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia manipulation of criminal justice agencies rendered them ineffective in serving the public, as well as futile in protecting our constitutional democracy from criminal elements. 8. It is also worthwhile noting that in three1 of the judicial commissions of inquiry established by President Cyril Ramaphosa in the last 18 months, the public has heard evidence of how leadership positions across the various criminal justice agencies were manipulated and influenced in order to safeguard networks of political patronage. It is with this in mind, that in his final report of the Commission of Inquiry into Tax Administration and Governance by the South African Revenue Service (SARS), Judge Robert Nugent provides a proposal for a possible recruitment process for the SARS commissioner that would ensure that the best possible candidate is selected for the position. Judge Nugent outlines a process that should be “open and transparent”, “apolitical” and proposes that an independent panel of experts be appointed to conduct the recruitment proceedings. He further advises that the proposed panel consist of members that are “not answerable to any constituency”. Additionally, applicants should be assessed against suitable criteria, and the panel should “make motivated and non-prescriptive recommendations on the suitability” of the candidates to the president or minister for appointment. 9. The proposal outlined by Judge Nugent is similar to a process set out in in the National Development Plan (NDP) in relation to the appointment of the SAPS national commissioner. The NDP states: The National Commissioner of Police and Deputies should be appointed by the President on a competitive basis. A selection panel, established by the President, should select and interview candidates for these posts against objective criteria. The President should appoint the National Commissioner and Deputies from recommendations and reports received from the selection panel. This would enhance the incumbents’ standing in the eyes of the community and increase the respect accorded to them by their peers and subordinates. Furthermore, the NDP recommends that a National Policing Board be established with multisectoral and multi-disciplinary expertise. The board would set the standards for recruitment, selection, appointment and promotion. 1 Judicial Commission of Inquiry into allegations of State Capture, chaired by Deputy Chief Justice Raymond Zondo, Commission of Inquiry into Tax Administration and Governance by the SARS, chaired by Judge Robert Nugent, and the Enquiry in terms of Section 12(6) of the National Prosecuting Authority Act, chaired by Judge Yvonne Mokgoro Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia 10. Corruption Watch believes that the proposal outlined by Judge Nugent and the process set out in the NDP allow for transparent, merit-based and public participatory appointment processes which are necessary to rebuild our criminal justice agencies. These additional layers of checks and balances would serve in the public interest and would contribute towards achieving a crime and corruption-free South Africa. In this regard, we are pleased with the steps taken by President Ramaphosa to ensure that stringent two-stream recruitment processes were put in place to appoint the new national director of public prosecutions in 2018 and the commissioner of SARS in 2019. These initiatives are consistent with values of fairness and accountability, and set a positive precedent for future appointments to positions within the criminal justice system, Chapter 9 Institutions and the boards of state-owned enterprises. Corruption Watch’s Proposal 11. Section 6(1) of the IPID Act, 2011, states: The Minister must nominate a suitably qualified person for appointment to the Office of the Executive Director to head the Directorate in accordance with a procedure to be determined by the Minister. In line with the statements above, and following the precedent set by President Ramaphosa, we encourage the Minister of Police and Parliament to adopt an appointment process that is transparent, set against merit-based criteria, and encourages public participation in recruiting the next executive director of IPID. This would render the following outcomes: I. Both the public and IPID officials would be better apprised of the abilities and characteristics that the new appointee would bring to the job. An appropriately experienced appointee whose integrity was beyond reproach would enjoy an enhanced level of support from both the public and IPID employees, and would be effective in instituting plans aimed at improving the performance of the organisation that they are tasked with leading; and II. Proper screening and vetting would ensure that individuals selected are less likely to become embroiled in scandals that may emerge after their appointment, thereby resulting in distraction and discord at a senior leadership level. Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia With this in mind, Corruption Watch has proposed a selection process that is grounded on principles of transparency, fairness, and public participation, as well as advocates for the use of objective and merit-based criteria to identify the most suitable candidates for the position. 12. In a letter dated 27th August 2019, we have respectfully proposed to the Minster of Police, the following process: I. A selection panel be established by the Minister of Police on the advice and with the support of the Civilian Secretariat of Police and the Parliamentary Portfolio Committee of Police (PCP). The objective of the panel would be to undertake a transparent and merit-based recruitment process that results in a recommendation to the Minister of the most qualified candidates to effectively lead IPID; II. The panel should comprise of individuals who are able to impartially assess possible candidates against agreed-upon criteria. The panel could therefore consist of: - A retired police general who has served with distinction, to assess knowledge of policing policy and practice; - An expert in criminal law and the laws applicable to policing, to assess knowledge of legal principles; - A representative from the Treasury to assess knowledge of the Public Finance Management Act and relevant regulations governing public sector procurement; - A representative from the Public Service Commission to assess for knowledge of generic executive public administration prescripts, legislation, planning and reporting obligations; - An expert in executive decision-making and ethics; and - Any other individuals from civil society who possess the necessary expertise to assist in evaluating candidates against criteria developed by the panel. III. The panel should be tasked with developing clear merit-based criteria for the post of the executive director of IPID. The criteria should reflect on the necessary skills, expertise, experience, integrity and characteristics required to effectively lead the organisation. The panel should also ensure that candidates: - Are, and are reputed to be, of unblemished integrity; and - Have proven experience of managing a large organisation at a high level. Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia IV. The Minister of Police should publically advertise the post calling for applications for the executive director of IPID, and present the responsibilities and functions of the post along with the minimum criteria required to be shortlisted. V. The Civilian Secretariat of Police should receive applications and supply the panel with a shortlist of candidates who meet the minimum criteria. To be shortlisted, the candidates must not only possess the necessary expertise, experience and qualifications, but must first be vetted for top security clearance and against financial insecurity, as well as subject themselves to a psychological evaluation. VI. The panel must then interview the shortlisted candidates in public, using objective criteria. The panel should also make avenues available for the public to submit comments / objections to candidates for the panel’s consideration. VII. Once the interviews are completed, the panel should provide scores for each shortlisted candidate against the key criteria weighted by the most important functions of the post and assessments of integrity. The panel should make no more than three recommendations to the Minister, comprising those who achieved the highest scores from the assessments process. VIII. In the Minister’s submission to Parliament in accordance with Section 6(2) of the IPID Act which stipulates that the relevant parliamentary committee either confirm or reject such appointment, a detailed report highlighting the process of appointment, the criteria used for assessment, as well as the scorecard for all candidates should be made available. This should accompany the Minister’s motivation to nominate a suitably qualified candidate. The PCP should encourage the Minister to make such a report, to assist in their final decision to either confirm or reject the appointment. 13. It is important to note that the Minister establishing a panel to conduct the shortlisting and interviewing processes, does not remove the Minister’s prerogative in nominating a suitably qualified candidate to occupy the position of executive director of IPID. Instead, it adds an extra layer of transparency and accountability in this critical selection process. Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia 14. In this regard, the PCP has the authority to ensure that the appointment process to select a suitable candidate as the executive Ddrector, is transparent, fair, competitive and based on merit – and that the Committee should be collectively satisfied that these principles were met before confirming an appointment. Conclusion 15. We hope that the PCP and the Minister of Police undertake a robust selection process that will ensure that an individual of unblemished integrity, who is independent, has the necessary experience to lead IPID, and who is fit and proper is appointed as the executive director. 16. We cannot overstate the importance of building the trust of the public in our police services. This urgent task will be enormously facilitated if the public are persuaded that the police are subject to an oversight mechanism that is independent of the executive branch of government, that pursues its mandate without fear, favour or prejudice, and that is led by a competent and fearless individual of unimpeachable integrity. 17. Should the Committee require further information, or explanation, Corruption Watch is available to provide oral submissions. Sincerely __________________________ ______________________________ Kavisha Pillay Sabeehah Motala Head: Stakeholder Relations & Campaigns Project Coordinator Directors: AL Brown, A Hassim, DH Lewis (Executive Director), M Msimang, S Mbete, M Qobo, T Leoka, F Cachalia