SUMMARY OF SUBMISSIONS ON THE IPID AMENDMENT BILL 2 JULY 2018 Policing Oversight Forum APCOF concerned that IPID Act reqUIres a broader amendment than proposed by Constitutional Court amendment. Security of Tenure Appointment of Executive Director Section 6 Whenever there is a vacancy, a committee established by the Nationai Assembly shall initiate the appointment of the Executive Director through an open, transparent and competitive recruitment process. The recruitment process referred to above shall be by way of applications, invitations or nominations. That the Executive Director must be a South African citizen; . be a fit and proper person; . be a suitably qualified person; and . have knowledge and experience in the administration of justice, public . administration and public finance management for a cumuiative period of at - least 10 years. The Executive Director shall be appointed for a period of non?renewable ?xed term of not shorter than seven years and not exceeding ten years. The committee must submit its report and recommendations to the National Assembly after concluding the recruitment process. The report and recommendations referred to shall be submitted within 14 days to the Nationat Assembly if Parliament is in session or if Parliament is not then in session, within 14 days after its next ensuing session. The National Assembly shall, within 30 working days of the receipt of the report and recommendation by the committee referred to confirm or reject such recommendation which shall be adopted with a supporting vote of at least two thirds of the members of the National Assembly. The Executive Director shall not perform remunerative work outside their official duties. The Minister shall after confirmation of the National Assembly take steps to formalise the appointment a person as the Executive Director. 1 In the case of a vacancy, the National Assembly shalt, fill the vacancy within a reasonable period of time, which must not exceed six months. While the appointment of a person to the of?ce of the Executive Director is pending, any of the persons appointed respectively, shalt be appointed by the Minister subject to the approval of the National Assembly to perform such functions. Removal of the Executive Director Section 6 (5) APCOF concerned that there are no criteria for the suspension, discipline or removal of the Executive Director on grounds which can include: misconduct; . incapacity; - incompetence; or 0 that they are no longer a fit and proper person to hold the of?ce concerned. There should be a process for the removal of the Executive Director Any complaints retating to allegations contemplated in the Act must be communicated in writing to the Speaker of the National Assembly and copied to the Minister within 14 days after the receipt of such complaint. The inquiry shail be led by the chairperson of the committee constituted under section 60 (4) and shall perform its functions subject to the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000), in particular to ensure proceduratly fair administrative action. The committee so constituted must consider the complaint made against the Executive Director to determine whether there is substance in the complaint. The Speaker of the National Assembly must ensure that a committee is constituted within 30 days to deai with the complaint and matters related thereto. Once the committee finds that there is substance in the complaint, the chairperson of the committee shall notify the Executive Director of the ailegations against them and invite the Executive Director to make written representations within 14 days of receipt of the notification. The committee must consider the complaint and any representations submitted by the Executive Director within 30 days of receipt of the representations by the Executive Director. Any decision and the reasons therefor by the committee must be communicated to the complainant, the Executive Director, the Speaker of the National Assembly and the Minister. In the event of an inquiry, Executive Director may - . be assisted and represented by a legal representative; . be present at the inquiry; . make an opening statement; . cross-examine witnesses not catted by them; give evidence; call witnesses; have access to documents relevant to the inquiry; make written representation at the conclusion of the hearing; and may present mitigating factors. Where there is an intention to suspend or dismiss, the chairperson of the committee must invite the Executive Director to submit representations, if any, within 14 days of receipt of the notice of intention to suspend why he or she should not be suspended. The committee must consider the representation by the Executive Director and make a decision on the suspension or dismissal within 14 days of receipt of the representations. The recommendation by the committee whether or not to suspend or dismiss the Executive Director shalt be referred to the National Assembly for adop?on. The Executive Director may be suspended or dismissed from office after a resolution of the National Assembly adopted with a supporting vote of at least two thirds of the members of the National Assembly, pending an inquiry into their ?tness to hold such of?ce as the National Assembly deems fit. The Minister must inform the Executive Director of the National Assembly?s decision to suspend or dismiss them pending the discipiinary inquiry. The Executive Director provisionally suspended from office shall during the period of such suspension be entitled to such salary, allowances, privileges or bene?ts to which they are otherwise entitled, unless the National Assembly determines otherwise, which shall not include their salary. While the appointment of a person to the office of the Executive Director is pending, any of the persons appointed in terms of the Act respectively, shall be appointed by the Minister subject to the approval of the National Assembly to perform such functions. in the event of the removal of the Executive Director, the Minister must take steps to implement the decision of the National Assembly. While the appointment of a person to the office of the Executive Director is pending, one of the Programme Mangers appointed in terms of the Act shall be appointed by the Minister, subject to the approval of the National Assembly to perform such functions. institutional and operational Section 4 The Directorate functions institutionalty and operationally independent from the SAPS. .zamnmnamsom 2 Em =u_U W?m u. ?gum"? 5% v9 My?wmag my, .w Zm? 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To provide for the following: procedure for recruitment of the Executive Director which requires the advertisement of the vacant post in Government Gazette and national newspapers; requirements relating to the recruitment of a potential candidate for the position of the Executive Director; for the non-renewable fixed term of office for the Executive Director of not less than 7 years and not exceeding 10 years; procedure to formalise the appointment of the Executive Director foliowing confirmation of the Minister?s nomination of a suitably qualified candidate by the relevant Parliamentary Committee; and formaiisation of the appointment, including issuing a letter of appointment, an employment contract and signing of a performance agreement. Section 6A The insertion of new 6A that deals with the remuneration and conditions of service of the Executive Director. This is consistent with the finding of the Court declaring the provisions of section of the Act invalid ?and inconsistent with the provisions of section 206(6) of the Constitution, in that the lPlD?s constitutionally guaranteed independence requires more stringent protection, factors that must be considered include, amongst others, security of tenure and remuneration and mechanisms in place for accountability and oversight, provides for the following: that the remuneration and other terms and conditions of employment of the Executive Director wiit from time to time to be determined by the Minister; that the remuneration and other terms of conditions of the Executive Director shall not be lower or reduced or adversely altered during his or her term of office or be lower than that of the National Commissioner; for the Minister to aiiow the Executive Director to vacate his or her of?ce at his or her request on account of ill-health and or any other reason the Minister deems that the Executive Director must address his request to vacate office to the Minister six calendar months before unless the Minister grants shorter period; that the Minister must during the six calendar months? period ensure that the vacancy is tilted; In the event of a vacancy Minister must appoint a suitably qualified and competent person within the establishment of the Directorate to act in the vacant post until such time a person is appointed; and the Executive Director must not perform remunerative work outside of his or her official duties. Removal of the Executive Director Section BB The new proposed Section BB seeks to provide for a procedure to be followed by the relevant Parliamentary Committee when suspending or removing the Executive Director from office. It is consistent with the order of the Court declaring the provisions of section 6(6) read with section of the Act dealing with the suspension, removai and disciptine of the Executive Director inconsistent with the provisions of section 206(6) of the Constitution and invalid in as far as it applies to the Executive Director without oversight. As a result, this proposed new section seeks to cure the defect ordered by the Court, and it is consistent with the foliowing ?ndings: . section 6 of the Act gives the Minister enormous political power and control over the Executive Director and the power to remove the Executive Director from hislher office without parliamentary oversight. the enormous power given to the Minister is antitheticai to the entrenched independence of as envisaged by the Constitution and permits poiitical management of by the Minister. 0 this politicat management of may lead to the IPID becoming politicised and manipulated and is not compatible with the independence of as demanded by the Constitution. witl ensure parliamentary oversight over the suspension of the Executive Director, and provides for the following procedure: 1. the Executive Director may only be suspended and removed from office in accordance with the provisions of section 68; 2. the Executive Director may be suspended and removed from office on allegations of misconduct, incapacity, incompetence, or that he or she is no longer a fit and proper person to hold office concerned; 3. the manner in which allegations of misconduct must be communicated and the timeframes regulating the process; 4. will ensure parliamentary oversight over the suspension of the Executive Director, and provides for the following procedure: 5. the Executive Director may only be suspended and removed from office in accordance with the provisions of section 6. the Executive Director may be suspended and removed from office on aiiegations of misconduct, incapacity, incompetence, or that he or she is no longer a fit and proper person to hold office concerned; 7. the manner in which allegations of misconduct must be communicated and the timeframes regulating the process; Western Cape Department of Community Safety Removal of the Executive Director Clause 2 in the proposed section the reference to "a resolution calling for the removal of the Executive Director's removal? should be "the resolution? so that it refers to the resolution of the National Assembly referred to in sections 6A(1)(b) and 6A (2) which precede section Delete in "a resolution? and replace with ?the?. Delete the comma in line 2 of the proposed section 6A (5). Section It is proposed that section be quali?ed to properly reflect that the Executive Director is appointed in terms of the Act. The precise intersection with the "laws of the public service" must be considered and, if applicable in any way, must be adequateiy expiained. Section 4(1) It is suggested that section 4(1) be amended to state that the Directorate functions independently from the South African Police Service and the Municipal Police Service. 7 Section The insertion of section 4(3) is proposed to provide that members of IPID staff must 4(3) serve impartiaily and independently and exercise or perform their powers and functions in good faith and without fear, favour, bias or prejudice. Section it is proposed that sections 6(1) and (2) be amended in tine with the recommendation: 6(1) The removal of the Executive Director, in light of clause 2 of the Amendment Bill, can only occur on a finding to that effect by a committee of the National Assembly and the adoption of a resoiution calling for that person's removal. There is a great similarity between this proposal and section 194 of the Constitution which sets out the procedure to be followed when the Public Protector, the Auditor- General or a member of a Commission established by Chapter 9 of the Constitution is to be removed from office. This highlights the importance of the office of lPlD?s Executive Director in our constitutional democracy, which is similar to the oversight role of the Chapter 9 institutions. The proposed procedure to remove the Executive Director does not resonate with the procedure to appoint the Executive Director which occurs in terms of sections 6(1) and (2) of the Act. Under these provisions, the Minister, in the first instance, nominates a suitably qualified person for appointment in accordance with a procedure determined by the Minister. The retevant parliamentary committee con?rms or rejects the appointment within 30 parliamentary working days of the nomination. IPID should operate independently and at an arms-length from the Ministry. It is therefore proposed that the executive authority, on the recommendation of the National Assembly, appoints the Executive Director. This is similar to section 193 of the Constitution which sets out the procedure to appoint the Public Protector, the Auditor-General and the members of the remaining Chapter 9 institutions. it is also recommended that the Executive Director of PD must not have been or be a police of?cial. This would reinforce the independence of IPID, by ensuring that the Executive Director would in no manner be or be perceived to be unduly influenced by his or her former colleagues. Southern African Catholics Bishops Conference or as; Section 4 a a as; .f sed amendments to the IPID Act. They will help to ensure that the Executive Director of (and therefore, to a large extent, the organisation as a whole) can carry out his or her duties knowing that only a two?thirds majority of the National Assembly can remove him or her from office. Section We also support the role given to ?a Committee of the National Assembly? in the 6A(1)(a) proposed new section 6A(1)(a) of the IPID Act. it is appropriate that a body consisting of public representatives should be tasked with making a ?nding as to the ?tness for of?ce of the iPlD Director, just as it wouid do in the case of the Head of the Directorate for Priority Crime investigation. Legal Resources Independence of IPID Section 4 CASAC welcomes the proposed amendments to the IPID Act. In particular. the Centre (on behalf of (Suspension and Section 6, introduction of pariiamentary oversight for the removal or suspension of the CASAC) Removal of Executive 6A Executive Director. Director) CASAC endorses the submissions made by the APCOF to the Portfolio Committee on Police regarding the draft Independent Poiice Investigative Directorate 9lPlD) Amendment bill which considers questions beyond the McBride decision. Helen Suzman Submission of Role of the We note, and share, APCOF's concern that the CSP ?did not facilitate the Foundation APCOF necessary process of ministerial and cabinet review in time to allow the draft Bili to Secretariat be presented before Parliament.? Appointment, Section 6 To this end, we endorse the recommendations contained in submission, Suspension and 6A especially as pertains to the appointment criteria and remove! procedures of the Removal of Executive Director Executive Director, but we acknowledge that it may be inappropriate to make submissions on these aspects in response to the current Bill. Given the time constraints and in order to avoid being in contempt of the Constitutional Court Order, the Committee must ensure compliance by enacting the Bill before 6 September 2018. While the Bill may meet strict compliance with the Order, it is limited in scope in so far as it only addresses removal. We do not believe that enacting this Bill can constitute the final step of bringing the Act in line with Constitution. We therefore urge that beyond this tegislative step, the Committee urgently considers further amending the IPID Act to address the concerns identified by APCOF in their submission under the headings 'Appointment of the Executive Director? and ?Removal of the Executive Director'.6 Assurances in this regard from the Committee may avoid the need for a legal challenge in order to make the IPID Act constitutionally compliant. Section The proposed subsection 1 of the new Section 6A of the Biil makes reference to "a Committee of the Nationai Assembly?. This wording is drawn directly from Section 17DA (3) of the South African Police Service Act? (the SAPS Act). The use of the words ?a Committee" is ambiguous for the following reasons: a) Section 1 of the SAPS Act makes reference to "the Standing Committees of the National Assembiy and the Senate [sic] responsible for safety and security issues?; in) ?Committee? is de?ned in the Act as follows: "?Committee? means the Management Committee established under section 11?; 0) Section 6(2) of the existing IPID Act states, ?The relevant Parliamentary Committee must, within a period of 30 partiamentary working days of the nomination in terms of subsection (1 confirm or reject such nomination". d) This Section makes clear reference to a Committee distinct from the Management Committee contemplated in 3.1.1. above, through use of the words "relevant Parliamentary?. This anomaty must be addressed. Section The proposed wording of this clause is drawn from Section 17DA (5) of the SAPS Act. The use of the word "Committee? is ambiguous for the same reasons set out in Section 3 of this submission. Insertion of the words "relevant Pariiamentary? before the word "Committee? in the proposed Section 6A 1(a) to bring the clause in line with the wording in Section 6(2) of the IPID Act. Addition of the words, ?and as contemplated in Sections 12, 13 and 14? in the definition of ?Committee? in Section 1 of the IPID Act. Addition of the definition of ?Parliamentary Committee?, in section 1 of the Pit) Act. that describes the specific Committee referred to in Section 6( Section 6A of the proposed Amendment. This definition must make clear that the relevant Parliamentary Committee which is empowered to appoint the Executive Director in Section is the same Parliamentary Committee referred to in the proposed Section 6A. This distinction is important in order to differentiate it from ?the Committee" as contemplated in Sections 11, 12, 13 and 14 of the Act which concern the ?Management Committee?. We strongly urge that this Committee continue the process of amending the IPID Act beyond the passing of this Bill into law. There is room to improve the IPID Act beyond a mere technical incorporation of the SAPS Act, which effectively forms the entirety of this current Bill. Should the Committee decide against a broader consideration of the Bill, we caution that the Committee opens up the proposed amendments to judicial review. Centre for Applied Appointment, Section 6 CALS propose that the Committee empower the Minister to suspend the Executive Legal Studies Suspension and 6A Director, only after consultation with the Committee Removal of Executive Director Include principles and/or guidelines to inform the Minister?s discretion to suspend the Executive Director. Section Section 6A (3) of the bill is ambiguous in that it may give rise to multiple 6A(3)(a) interpretations. The one interpretation is that it gives the Minister the authority to suspend the Executive Director at the start of any proceedings contemplated under sections 6A (1). if this is so, then the power given to the Minister to suspend the Executive Director is not subject to any parliamentary oversight, as such it has the potential to expose iPlD to constitutionally impermissible executive or political control as held in McBride. As such, this is not the remedy and {or the amendment envisioned by the Constitutional Court. CALS therefore proposes that the amendment should clearly state that the Minister can only exercise his or her power to suspend after consultation with the Committee, any time after the start of any proceedings contemplated in section 6A (1 This means that the Minister's power is subject to oversight by the Committee, and consequently, the amendment provision will comply with the McBride judgement. CALS is concerned that 6A(3)(a) provides the Minister with an unduly wide discretion. Where legislation makes provision for discretionary use of power, as this amendment does, such discretion should be guided by determinable principles and/or guidelines. There are good reasons that may make a suspension necessary. Reasons, for example may include evidence that the Executive Director is interfering with the investigation and/or evidence that the continued holding of the position (of the Executive Director) will result in irreparable or signi?cant harm. 11 Principles or guidelines are important because suspension ought not be used as a punishment for disciplinary proceedings which are not yet concluded. Suspension is rather to facilitate the investigation and to prevent further harm, Independent Police investigative Directorate Appointment, Suspension and removal of Executive Director It is imperative to mention that section of the Act does not refer or expressly provide for suspension or removal of the Executive Director. Therefore, section according to both the North Gauteng High Court and the Constitutional Court, even though it expressly provides for appointment of the Executive Director it also provides for the suspension and removal by the mere mention of the words" subject to the laws governing the public service.? Further, even though the court declared section of the Act invalid and unconstitutionai to the extent that it seeks to suspend, discipiine and remove the Executive Director, the fact of the matter is that, the Court has declared the whole of section of the Act invalid and unconstitutional. As a result, the submit that for the purposes of complying with the Court?s orders section of the Act must be amended aiso to the extent that it provides for the appointment of the Executive Director subject to the laws governing the public service. In order to assist the Committee in concluding this process within its set timeframes and those of the constitutional Court, the iPiD has prepared a draft proposal of the Bill which in its view is consistent with the McBride judgement and wilt pass constitutional muster. Based on the above, it is submitted that section 6 be substituted to align it with the McBride judgement by ensuring that the appointment of the Executive Director of the lPiD is no ionger subject to the laws governing the public service and should provide as follows: a) for a procedure for the recruitment of the Executive Director which requires the advertisement of the vacant post in the Government Gazette and national newspapers; b) lists the requirements relating to the recruitment of a potential candidate for the position of Executive Director; 0) for a non?renewal fixed term of office for the Executive Director of not less than seven years and not exceeding ten years; 12 d) for the appointment a panel of technical experts to assist in the evaluation and nomination process of a suitably quaiified person for appointment to the of?ce of Executive Director; e) for a procedure to formalise the appointment of the Executive Director following con?rmation of the Minister's nomination of a suitabiy quali?ed candidate by the relevant Parliamentary Committee; and f) for the formalisation of the appointment of the Executive Director which includes the Minister issuing a letter of appointment, an employment contract and the signing of a performance agreement. It is submitted that a new section 6A be included in the Bill which deals with the remuneration and conditions of service of the Executive Director. It is submitted that section 63 of the Biil takes into account the pronouncement and findings of the Constitutional Court. The section has been crafted in a manner that will not create challenges for Pariiament which was experienced shortty after the McBride judgement was delivered on 6 September 2016. Further the section does provide for Parliamentary oversight, thereby, making the section consistent with the provisions of section 206(6) of the Constitution. the procedure to be followed by the Minister in respect of the provisional suspension of the Executive Commissioner: The Executive Commissioner may only be suspended and removed from office in accordance with the provisions set out in section The Executive Director may be suspended and removed from office on the grounds of misconduct, incapacity, incompetence, or on the grounds that he or she is no longer a fit and proper person to hold the of?ce concerned, procedure relating to the manner in which allegations of misconduct must be communicated and the timeframes reguiating the process; The Minister in consultation with the relevant Parliamentary Portfolio Committee may provisionally suspend the Executive Director pending the outcome of a disciplinary inquiry instituted by the relevant Parliamentary Committee into the fitness of the Executive Director to hold office; 13 Upon the conclusion of the disciplinary inquiry, the relevant Parliamentary Committee will submit a report together with its findings and recommendations to the National Assembly for consideration and adoption; and The Executive Director may only be suspended and removed from office upon the adoption by the National Assembly of a resolution calling for the Executive Director?s removal from of?ce. 14