Paul Hoffman SC, Director Accountability Now – 10 June 2019
Those responsible for proper oversight of the police minister should be calling for his head, not mollycoddling him with technocratic advice.
The new Cabinet is now in place, some fresh blood, some familiar faces and quite a pile of soiled baggage of the past. In order to welcome the return of Bheki Cele to the police ministry, the DA’s former shadow minister of police, Zakhele Mbhele, has put forward some suggestions on the burning topic of how to fix the SAPS. He punts localisation of management authority, the outsourcing of administrative and technical functions as well as the strengthening of mechanisms and systems. Long years of service on the police portfolio committee in Parliament should have alerted this 34-year-old career politician to the role of the opposition in the oversight of the executive by the legislature. Schooled by Helen Zille, before her hyperactive thumbs saw her fall from favour, and by Dianne Kohler-Barnard whose foot-in-mouth Facebook work and general forthrightness saw her join Zille in the DA dog box, Mbhele has made three constructive technocratic suggestions which Cele will surely ignore.
Accountability, responsiveness and proper oversight would have been better served if Mbhele had made time to consider three elephants in the room marked “SAPS”.
As a service to the public, and as a suggestion to Mbhele to up his game, here are the three topics he might have mentioned: Is Cele fit for purpose? Although it all happened in the distant past, before Mbhele reached Parliament, it is a fact that Cele, while national commissioner of police, was dismissed by Jacob Zuma for the shenanigans in which he involved himself in the leasing of Police headquarters in Pretoria and Durban. First, the Public Protector excoriated him in two detailed reports called “Against the Rules” and “Against the Rules Too”. Then the Moloi Panel of Inquiry found Cele to be “dishonest and incompetent” in its lengthy report, before recommending he be dismissed. The panel also recommended that the appropriate authorities should investigate Cele’s involvement in corrupt activities. These activities the panel was unable to pry into because Zuma cunningly did not give it the power to subpoena the records and the players in the saga. History will record the saga as a sorry chapter which saw the rentals in question being negotiated at up to three times the then going rate for commercial premises of the kind under consideration for Police headquarters.
It would seem that Cele did not expect to be re-appointed: rightly so. The gist of his interactions with the police and the media in the days before the announcement of the new Cabinet was one of realistic resignation to the likelihood of redeployment. He even arranged a farewell parade and made an on-camera joke about the new commissioner of police taking his old job.
In a properly functioning constitutional democracy under the rule of law, it is not tenable to appoint a minister of police who has the track record of Cele; indeed, it is irrational to do so, whatever the political demands of the day may be. It is small wonder that no one in the criminal justice administration has lifted a finger to investigate the involvement of Cele in prima facie corrupt activities. Going after the “big boss” is akin to turkeys voting for Christmas.
None of the bluster around the establishment of the new Investigative Directorate headed by Hermione Cronje includes any promise to investigate the allegations against Cele, all meticulously documented by the finest Public Protector the country has ever had and by the efforts of a senior judge with the assistance of two senior advocates of high standing.
All of this deadly information has apparently passed Mbhele by in his myopic attempt at oversight over Cele.
It may also have behoved Mbhele to draw the attention of Cele to the National Development Plan which was accepted as official policy at the Mangaung Conference of the ANC in 2012. In particular, page 393 of the plan says: “The Commission, therefore, recommends that the South African police force
be demilitarised. This is a short term objective which should happen in the immediate term.” This recommendation received the attention of the Farlam Commission of Inquiry into the police shootings of striking platinum miners in Marikana. At page 551 of the final report of the commission, prepared after exhaustive evidence, both by experts and eyewitnesses was given, the following appears: “C Recommendations by National Planning CommissionThe National Planning Commission, in its report, which has been accepted as Government policy, has made a number of important recommendations regarding the need to demilitarise the SAPS and to professionalise the police. These recommendations must be implemented as a matter of priority.”After the Farlam report was presented, to then President Jacob Zuma, its recommendations, including the urgent demilitarisation recommendation, were accepted by government, but the demilitarisation has not been acted on in any way, shape or form.
The SAPS were named as a “service” in the post-liberation constitutional order for a purpose. The old apartheid-era notion of using the police as a “force” to suppress the majority of the people and to act as a blunt instrument for enforcing unpopular policies was intended to be swept aside in a concerted effort to transform the police into user-friendly service providers to the public in the prevention and combating of crime.
The re-militarisation of the police, accurately called a “force” in the NDP, but more correctly described as a “service” in the Constitution, was studied by the planning commissioners and was found by them to be a false move. All of this history is ignored by Mbhele in his advice to Cele.
Finally, it might have been a good idea to ask Cele to end the practice of cadre deployment in the SAPS, especially in the appointment of top managers and specialists who are required to put the SAPS on to a sound human resource management footing. Cadre deployment in the public administration, of which the SAPS is a part, has long been held to be illegal.
In the seminal decision of Judge Pickering in the Eastern Cape High Court in the matter of Mlokoti v Amathole District Municipality, the dirty work done by an ANC cadre deployment committee was set aside as invalid and unconstitutional. The court drew attention to the requirements of section 195(1)(h) of the Constitution and insisted on sound human resource management practices. So should Mbhele as a sworn in parliamentarian and a respecter of the rule of law. He has the Mlokoti precedent on his side. He is also able to draw attention to the devastating consequences of cadre deployment at the top end of the police. Jackie Selebi, Riah Phiyega and Cele himself did not see out their terms of office as leader of the police and the current crop have too many operators who are under a cloud of suspicion or are facing criminal charges.
There is no hope of establishing an effective and efficient police service while its leadership is shot through with crooked deployees who march to the sound of the drum of the national democratic revolution and ignore the precepts of the Constitution. Surely Mbhele knows this? Yet he does not mention its deleterious effect on the performance of the police under the leadership, both line and political, of Bheki Cele.
Those responsible for proper oversight of the police minister should be calling for his head, not mollycoddling him with technocratic advice. Unless Mbhele is contemplating defecting to the ANC or has a possible coalition between the ANC and the DA in mind, he needs to up his oversight game considerably if he wishes to make any positive impact.
In any properly functioning constitutional democracy under the rule of law, the probity and integrity of all Cabinet ministers ought to be beyond reproach, not the subject matter of the reports and topics alluded to above. These characteristics are of the essence of accountable and responsive governance. In the case of a police minister, given his constitutional responsibility to determine national policing policy, this standard should be meticulously applied, which is probably why Cele apparently did not expect to be a part of the first Cabinet of the sixth Parliament.
The loyal opposition ought, with the help of the courts if necessary, to be ushering Cele toward the door marked “EXIT”, not advising him on how to do his job better.