Foundations: the constitution and SAPS Act of 1995

The interim constitution, concluded in 1993 before the first democratic elections, allowed for the establishment of municipal police services but limited their functions to crime prevention and the policing of local government bylaws.12 Some senior ANC negotiators (at least in the 1993 negotiations) supported the idea of local policing because it implied a higher level of local accountability. Nevertheless, the concept of municipal policing was never included in any of the party's documentation of the time.13

No doubt there were bigger issues to negotiate than local policing and by including it in the interim constitution the issue was effectively deferred until enabling legislation could be tabled providing a framework for the establishment of local police agencies. Little progress was made in respect of this legislation in the period between the conclusion of the 1993 interim constitution and the passing of the country's final constitution in 1996.

Interestingly, the issue of municipal policing was nearly left out of the final constitution and inserted at the last minute on the apparent insistence of the Democratic Party. Again, given the time pressure that was a feature of the negotiations the issue was not debated in any detail and was not opposed. Although the country's final constitution indicates that the security services of the country would only include "a single police service", thus by definition excluding others, a later clause states14: "National legislation must provide a framework for the establishment, powers, functions and control of municipal police services".15

After 1994, the new government's priority in terms of policing was to establish and clarify the nature of the country's national police service. Thus the South African Police Service Act of 1995 provided for the establishment of a single police service, the SAPS. In Chapter 12 however it made provision for the establishment of municipal and metropolitan police services. These provisions lacked detail stating simply that the Minister of Safety and Security could prescribe which components of the SAPS Act would apply to municipal police services and could make regulations regarding their establishment.16 The Act also provided for members of municipal police services to participate in community police forums in the areas in which they operated.17

Despite the inclusion of these provisions in the SAPS Act there had been little debate as to the structure and function of municipal police services. Even though municipal policing was provided for in both the constitution and the SAPS Act there continued to be opposition to the establishment of municipal police services. The concern was that new police agencies would undercut the functions of, and cause conflict with, the SAPS and that all available resources should be directed at the national police.

Apart from the lack of legislative clarity, two other inter-connected and important factors ensured that the debate did not move forward in the first two years of the new democracy:

• No local government consistently pushed the issue. While some officials and councillors lobbied for the establishment of municipal police services, these were never concerted campaigns driven by public opinion. Within local government, officials were more concerned with the restructuring of municipal authorities and the immediate challenges of providing services to many who had been excluded under apartheid. At national level, the focus was on restructuring and transforming the police and not on encouraging centres of potential opposition and competition to the SAPS's often troubled efforts on the ground.
  
  

• Some of the early opposition stemmed from the fact that municipal policing had come to be closely associated with the Democratic Party which had included it in the party's anti-crime policy. This raised the suspicion that municipal policing was only for the wealthy. This view changed over time, particularly after the country's first local government elections reflected the degree to which crime was a point of political pressure at local level. Also important was the redesign of local government boundaries ensuring cross-subsidisation between rich and poor areas undercutting fears that municipal police would only be available to those who could afford to pay for their services. These developments provided some space for the framework legislation to be debated in detail. The result however was a compromise limiting the powers of the municipal police and even more critically ensuring that only local (and by definition more restricted) resources could be used to fund their establishment.
  

Gauteng province takes the initiative: the 1996 Green Paper

The continued public outcry around crime and jostling between the political parties ensured that the debate on municipal policing assumed greater prominence from early 1996 onwards, almost two years after the country's first democratic elections. In order to seize the initiative from the Democratic Party, the ANC led provincial government in Gauteng published a discussion document on municipal and metropolitan policing. Despite later policy documents, the document was important in shaping the debate.

The provincial government had taken on the issue before the passing of the final 1996 constitution (although after the promulgation of the SAPS Act) basing its role on the provisions of the 1993 interim constitution which stipulated that municipal police services could only be established with the consent of the provincial Member of the Executive Committee (MEC) responsible for safety and security. According to the interim constitution the MEC was also responsible for determining the powers and functions of municipal policing for their province. The initial intention in Gauteng was to publish legislation in the provincial parliament on the matter.

The Green Paper on Metropolitan and Municipal Policing was published by the Gauteng Provincial Ministry of Safety and Security in March 1996.18 At the time its provisions were controversial but gradually became accepted as the norm. The approach followed closely resembled the interim constitution's provisions including the limiting of municipal policing powers to crime prevention and the enforcement of municipal bylaws. The green paper however put forward proposals on issues that had yet to be debated in detail, including:

• The powers of municipal police officers should be that of 'peace officers'.19 This would give them similar powers to traffic officers, including the powers of search, seizure and arrest.20
  
  

• The core personnel of municipal policing departments should be drawn from the traffic policing agencies. This assertion was the subject of much controversy opposed by both traffic officials, who believed a focus on crime would dilute their core traffic duties, and by municipal security officers, who believed that their departments should form the core of any new local government police services.21
  
  

• A provincial inspectorate should be established to ensure that the prospective municipal police would provide acceptable standards and levels of service.22
  
  

• A process of accreditation whereby a series of requirements would have to be met before the MEC could certify any local government policing body as having met the standards of being a municipal police service.23
  

There would be no money forthcoming from provincial or central government to fund local government police services. It did however suggest that "the province is open to all creative funding proposals as long as these do not contravene national or provincial laws on, for example, the regulation of gambling or lotteries."24

The policy process was taken further in Gauteng by the publication of a report on municipal policing by the Standing Committee on Safety and Security in the Gauteng legislature.25 Partly the committee was a product of political wrangling between the ANC and DP over who should take credit for the concept of municipal policing. The committee was formed and chaired by the head of the DP in Gauteng, Peter Leon.

The report of the committee was more detailed than the Gauteng green paper, particularly in regard to an assessment of current capabilities in the various local governments of Gauteng. Importantly in this regard, the report concluded: "As most traffic departments have become drawn into policing actions outside of the enforcement of traffic laws, so they have, over time, structured and equipped themselves accordingly".26 Despite its more comprehensive investigation into the state of traffic policing, the report did not make substantially new suggestions that had not already been covered in the green paper.

It was clear from the policy process in Gauteng that resolving how to take the municipal policing debate forward was a complex process, not least of which because of the large number of roleplayers involved.27 Apart from this factor however one reason why the debate could not move forward in Gauteng was the lack of clarity at national level on whether or not municipal policing should be encouraged (despite the constitutional provisions). Briefings by Gauteng officials to senior members of the Ministry of Safety and Security also suggested that there was not wholehearted support for the concept, particularly among senior managers of the SAPS.

National government provides enabling legislation

Whatever the process which led to the inclusion of municipal policing in the 1996 constitution, it had one important outcome: it shifted the debate from the provinces to national level, given that the latter was now responsible for any enabling legislation. The result was the appointment of a task team at national level to investigate not only municipal policing, but also the devolution of police authority more generally.

The task team contained a strong police presence. While accepting many of the principles in the Gauteng document and recognising the constitutional imperative to draft appropriate legislation, the police representatives hinted at the complexities of establishing municipal police services and the likelihood that unhealthy competition with the SAPS would result. This issue was of key concern to the task team which proposed a strict system of co-operation between municipal police services and the SAPS.

With at least some form of approval from the SAPS, the process of drafting legislation could now move forward. This task was given to a joint team of local and central government officials. The result was a compromise around most key issues. When the draft legislation was tabled in parliament, it was clear that concerns remained. The chairperson of the National Assembly's Safety and Security Portfolio Committee was quoted in the press as saying that before the legislation could be approved "there would have to be clarity about the allegiance of municipal police to the [central] government".28

The resulting legislation rests heavily on legislative provisions to control and oversee the activities of the municipal police (see the section below on the process of establishing a municipal police service). To some extent this reflected the uncertainties of the ANC about local policing. This, together with strong opposition from the SAPS who feared their own budget might be cut to accommodate the new local police, also meant that there was little chance of securing national government funding for local government policing.

Municipal policing catches on: popular and political support

Two factors provided the momentum for several metropolitan and local governments to begin the process of establishing municipal police services: the finalisation of enabling legislation, and the growing concern about crime levels together with a frustration about the effectiveness of the SAPS.

These concerns helped to undercut earlier fears among ANC politicians about establishing separate police agencies outside of the control of the central government. No political party wanted to be seen as standing in the way of legitimate public demands for protection. By 2000 all the major parties in the local government elections made the establishment of local government policing a key campaign issue.

At local government level also, the concept of municipal policing has grown in popularity due to:

• Increasing pressure to respond to what has become the number one need ('better safety') expressed by constituencies across the country.
  
  

• The inability of local government to influence priorities, resourcing and activities of the SAPS in their areas, which limits its ability to deliver on the safety issue.
  
  

• The lack of ideas (and experience) about how local government can respond to crime problems other than through policing and law enforcement. Since local government cannot make any direct impact on the activities of the SAPS, municipal policing has become an attractive law enforcement alternative.
  

Compared to concerns about crime and policing, the recent enthusiasm for municipal policing has had much less to do with support from central government or from the Department of Safety and Security.

There are however signs that this is changing. The clearest are the recent references to municipal policing by President Mbeki. In his state of the nation address to parliament at the beginning of 2001, Mbeki stated (to the surprise of police managers), that "In addition to other measures aimed at increasing the numbers of police personnel, the South African Police Service will give all required assistance to the Metropolitan Councils to enable them to establish their municipal police services where these do not exist".29 More recently, in an hour-long interview on national television, the president also referred to municipal policing as part of government's effort to increase the numbers of police officers in the country's cities.30

This level of political support is significant because municipal policing is rarely mentioned by the Department of Safety and Security—a central player in the formation, functioning and likely success of any municipal police service.

The need for municipal policing was articulated in the Department of Safety and Security's 1998 White Paper on Safety and Security that provided policy direction for the following five years. The White Paper explicitly recognised the role of local government in crime prevention and the value of decentralised policing as a means of ensuring that the SAPS would be more responsive to local safety needs. Municipal policing is mentioned as a core element of this strategy. The White Paper repeated the role of functions of municipal policing as laid down in the legislation and urged stronger co-operation between local government officials, councillors and the SAPS.31

The extent to which the 1998 White Paper has reflected the Department of Safety and Security's priorities and operations since 1999 is however questionable. Apart from efforts to restructure the specialised investigation units, set up sector policing and improve service delivery to the public (some of the strategies mentioned in the policy document) little else has been taken up, particularly in the area of institutional reform within the department.32

Moreover, the White Paper is mentioned once only (in respect of improving the detective service) in the department's budget vote report. The issue of municipal policing was not mentioned at all by the Minster of Safety and Security in his recent address to parliament on the department's budget vote, nor in the accompanying documentation.33

In this environment, President Mbeki's support for municipal policing has important political consequences in that it signalled that central government supported the concept of local government policing where in the past it had been ambivalent. That support however is not clearly reflected in the framework legislation, which remains a compromise, leaving municipal police agencies weak and under-resourced for the challenges they face.