South Africa: Strengthening Civilian Oversight over the police in South Africa: The national and provincial secretariats for safety and security

South Africa: Strengthening Civilian Oversight over the police in South Africa:

The national and provincial secretariats for safety and security

Duxita Mistry and Judy Kiplin

Occasional Paper 91, September 2004

EXECUTIVE SUMMARY

The national and provincial secretariats for Safety and Security were originally intended to provide civilian oversight and monitoring of the South African Police Service (SAPS). Ten years after the secretariats came into existence, the authors undertook this research as part of a broader study focused on strengthening civilian oversight of policing. This research report examines the effectiveness and efficiency of these bodies.

The study was qualitative in nature. The research was carried out through interviews and focus group discussions with key members of the nine provincial secretariats and the national secretariat. Unfortunately the Members of the Executive Council (MECs) for Safety and Security and the SAPS provincial commissioners were not available for interviews during the course of the fieldwork, so their voices are absent.

The possibilities of effective civilian oversight, as provided for in the legislation, are presented and discussed in some detail as a precursor to the presentation and discussion of the findings of the research. After interviewing personnel at national and provincial level, the authors conclude that the results obtained by these agencies vary with location. The secretariats believed that they played a key role in monitoring the police for service delivery, transformation, issues of improved representivity, allocation of resources and performance. They also involved themselves in co-ordinating various meetings and projects aimed at crime prevention. But in every case the secretariats appear to suffer from a lack of national co-ordination and vision. The relationship between the national and provincial structures, between the provinces themselves, and between the SAPS and the Independent Complaints Directorate (ICD) remains unstructured. Furthermore, that very little influence was exerted by the secretariat at station level was a particular source of concern.

There is hope, however, that the use of an evaluation device–the National Monitoring Tool (NMT)–will improve co-ordination and enhance the impact of the secretariats’ work. But if these agencies are to function as intended, the national leadership needs to reassert the importance of the secretariats and provide them with more direction. The opportunity to address these needs will be provided by the review of the SAPS Act, which is currently under discussion.

One of the key findings of this study is that the secretariats are not carrying out all the functions provided for in the current legislation. It is apparent that they are not realizing the full extent of the powers available to them. A related finding is that the restructuring of the national secretariat seems to have resulted in such a diminution of its role that it appears to exist only to advise the Minister of Safety and Security.

The study concludes with a number of recommendations for strengthening the effectiveness and influence of the secretariats for Safety and Security. These are as follows:

1. Existing provisions in legislation must be exploited.

Currently, the secretariats are not using their power under the law to place civilian oversight firmly on the agenda of the SAPS. A process that allows for engagement with the legislation in order to identify gaps in existing practice should be undertaken as soon as possible, so as to guide the legislative review process.

2. The current role, function and structure of secretariats should be revisited.

The policing context and the priorities of the SAPS should supply the context for a strategic review process. This would include a reassessment of the secretariat’s raison d’etre, possibly suggest new realignment and planning strategies, and allow for the assessment and amendment of the position and powers of the National Secretary, if necessary.

3. The national secretariat should remain a small but effective policy advice think tank for the Minister of Safety and Security and the provincial secretariats.

The national secretariat needs to regain its former strategic role as policy advisor to the Minister, while remaining a focused think tank.

4. Common policy analysis and implementation training should be provided for all secretariats.

It is apparent that the necessary skills and understanding of policy, monitoring and evaluation functions is severely lacking in some secretariats. In addition, the interpretation of these roles varies.

5. Collaborative planning and strategising is required between the secretariats and with the ICD.

The national and provincial secretariats should have combined strategic planning sessions, separately and together with the ICD, both to create a common understanding of needs and priorities, and to ensure uniformity of approach where necessary and/or appropriate.

6. The secretariats should share examples of good practice.

Currently, each secretariat seems to function in isolation from the others, with very little formal and structured sharing of good practice in matters of common interest.

7. The secretariats should monitor and oversee the Municipal Police Departments (MPDs), and assess how they can best assist them to fulfil their roles.

The institution researching oversight into the MPDs should make recommendations as regards the role and responsibility of the secretariats in relation to the performance of the MPDs.

8. Structural processes should be introduced to ensure good working relations between the secretariats and the SAPS.

There is currently a marked reliance on the goodwill of people and on effective interpersonal relationships to create good working relationships between secretariats, and between the secretariats and the ICD/SAPS in the provinces. This should be reinforced by more formal means.

9. The secretariats should contribute to the policy/legislative review processes.

While the secretariats have, in varying degrees, implemented the provisions of the White Paper and National Crime Prevention Strategy (NCPS), it seems appropriate, ten years after the advent of democracy, to revisit how the term “civilian oversight” is understood in relation to the secretariats and their work.

STRENGTHENING CIVILIAN OVERSIGHT

1. Introduction

This report forms part of a broader study into the role and function of civilian oversight of policing in South Africa. The Open Society Foundation South Africa (OSF SA) and the Open Society Justice Initiative (OSJI) together began research into this topic in the middle of 2003, with the aim of identifying ways in which civilian oversight could be strengthened. After a lengthy consultation process, five areas of focus were identified for research and evaluation. These were the oversight of MPDs; the role of Community Police Forums (CPFs); the development of a set of indicators for democratic policing; the establishment of a website focusing on police oversight issues; and the evaluation of the national and provincial secretariats for Safety and Security. The last of these forms the subject of this study.

The secretariats for Safety and Security were originally established in 1995, amidst a dramatic political transition to democracy. They were a response to the need both to limit the discretionary powers of the police, and to instil a culture of transparency and accountability. This transition took place under a new political regime which had little confidence in the management and allegiance of the security forces. Civilian oversight was seen as a way of monitoring the way in which career professionals in the security forces and in the South African Police (SAP) used their authority, in this way making the service accountable to “the people”. With the new political order still in its infancy the political executive did not have the capacity to oversee the (renamed) SAPS directly. Civil society was consequently called upon to provide the requisite function. The initial interpretation of “civilian oversight” was monitoring by civilians, that is, people not employed as career professionals in the security services.

The body responsible for oversight at a national level, the National Secretariat for Safety and Security, is led by the Secretary for Safety and Security, who is accountable to the Minister for Safety and Security. The minister determines national policing policy. The first Secretary, Mr Azhar Cachalia, was appointed in December 1995.1

The key institution for civilian oversight is the Secretariat for Safety and Security. The establishment of the secretariat was provided for in the Constitution and would be headed by the Secretary for Safety and Security. In turn, the Secretariat is accountable to the Minister for Safety and Security who is responsible for determining national policing policy.

While civilian oversight is provided for in the Constitution, the Constitution states only that such a secretariat must be established, without explicitly stating what its roles, objectives and mandate should be. The mechanisms established in order to carry out the oversight functions under the national secretariat for Safety and Security, were the provincial secretariats for Safety and Security, provincial and area police boards, CPFs at local level and the ICD.

The South African Police Services Act 68 of 1995 (hereafter referred to as the SAPS Act) devolved oversight to sub-national level, giving provincial governments the responsibility for establishing their own secretariats. These have a mandate similar to that of the national secretariat, but are autonomous. Each provincial secretariat is answerable to its MEC for Safety and Security, the political (that is, civilian) head of the police in that province. The provincial commissioners of the SAPS are appointed by the National Commissioner, after consul- tation with the MECs for Safety and Security of the provinces.

With regard to policing, the provinces, and, by implication, the provincial cabinets (through the MECs) have extensive powers over civilian oversight of the police service. Each province “may investigate or appoint a commission of inquiry into complaints of police inefficiency or of a breakdown in relations between the police and communities. It makes recommendations to the Cabinet member responsible for policing”.2 In addition, the Constitution specifies that a committee comprising the Minister of Safety and Security and the MECs for Safety and Security “must be established to ensure effective co-ordination of the police and effective co-operation among the spheres of government”.3 Sessions of the committee are referred to as MinMEC meetings. The provincial commissioner is obliged to report annually to the provincial legislature on policing, and to send a copy of the report to the national commissioner.4 If the provincial executive loses confidence in the provincial commissioner, it “may institute appropriate proceedings for the removal or transfer of, or disciplinary action against that commissioner, in accordance with national legislation”.5 These provisions indicate the extent of the MECs’ powers with respect to provincial commissioners of the SAPS.

CPFs are the most localised version of civilian oversight, and arguably are the most accessible to communities. Their functions are clearly spelt out in the SAPS Act, which states that each police station should have a CPF, chaired by a member of the community, which meets on a monthly basis to discuss crime problems and other areas of concern in the area the station covers. Their initial role was to build better relations between the police and black communities, by bringing them into a structured forum. This would promote the transparency and accountability of the police in the eyes of the community.

The structure provided for a Secretary for Safety and Security who would have similar levels of authority to that of the National Commissioner of the SAPS. The effect was to create two “bosses” for the SAPS. Both of these report to the Minister of Safety and Security, which creates the impression that the executive is overseeing itself. The mechanisms provided for civilian oversight have tended to entrench the executive (and thus to limit the powers of SAPS leadership), rather than bring organs of civil society into a position of influence.

As will be seen, the replication of roles and responsibilities is partly a result of unclear legislation and partly the result of the exercise of executive discretion. Whereas the role of the secretariat appears to be prescribed by legislation, in practice its mandate and authority vis-à-vis the other executive wings is not clearly defined. It is apparently subject to the Minister’s discretion, which has led to considerable variations in the experiences of different provinces under successive ministers and MECs.

Ten years after it was introduced, civilian oversight has taken on a different meaning. It is no longer a method by which communities can exercise control over the security forces at all tiers, local to national. It has come to refer to the mechanisms through which the executive constrains or cajoles the service. Because the role and function of civilian oversight (and the vigour with which it performs) now appear to depend on the individual in office rather than mandated roles and obligations and systemic relationships, its effectiveness is variable.

This has resulted in some secretariats being seen as “strong”, whilst others are perceived as “weak”, with the accompanying inference that civilian oversight overall is commensurately strong or weak. However, this assumption conceals a dramatic transition in the concept. Whereas in 1995 civilian oversight was intended to make the SAPS responsible and acceptable to communities, in 2004 it has increasingly come to mean the accountability of the SAPS to the executive (in the form of the Minister and the MEC). One source expressed the opinion that civilian oversight should not have been interpreted (as it was in 1995) as populating the secretariat with civilians. Instead it should have been taken as introducing a mechanism through which the policy making and policy implementation functions were clearly separated (although with effective political oversight).

An appreciation of the current state of civilian oversight has to be undertaken within this changing paradigm. This report describes the status quo, and evaluates the prospects for strengthening the effectiveness of the secretariats.

2. Objectives of the study

The overall aim of the project was to identify how civilian oversight of the police could be strengthened. This required an understanding of current practice. To do so, this study sought to fulfil the following aims.

3. Methodology

At a presentation to the Heads of Secretariat meeting in October 2003, there was general agreement among those attending that this research was sorely needed. Consequently the Heads of Department granted the authors permission to interview members of the secretariats, and the Executive Director of the ICD also agreed that regional directors could be approached. Unfortunately the SAPS refused a request to interview the provincial commissioners. As a result, their views are not represented in this report.

The researchers drew up an interview schedule and carried out a pilot study with members of the Gauteng Secretariat, after which they refined the interview schedule to the form used for the main study. The target group ranged from the provincial secretary to assistant directors. Personnel in the Monitoring and Evaluation and Complaints and Investigation registry/directorates were singled out for interviews. This was necessary to understand the expanded mandate of some secretariats. Furthermore, interviews were also undertaken with the regional directors of the ICD in eight provinces (Limpopo being the exception), to gain an understanding of their relationship with the provincial secretariats.

As this was a qualitative study, the authors aimed at eliciting the perceptions of various members of the secretariats and of the ICD. Face-to-face interviews and focus group discussions were conducted in all nine provinces. The focus groups involved a total of 15 participants. A total of 32 individual interviews and 4 focus groups involving ISS researchers were completed. However, all attempts to set up individual interviews with members of the national secretariat proved unsuccessful. Ultimately the only contact achieved was a one-hour meeting between one author and some of the senior managers.

In order to verify the accuracy of the researchers’ interpretations of the responses presented in the report, a draft copy was sent to the national secretariat and every provincial secretariat for feedback. Very little comment was received, and no requests for substantive amendments to the report were made.

4. Limitations of the study

There are two crucial limitations to the study undertaken. Firstly, the research was conducted during the run-up to the national elections, a period in which the political heads of policing were unavailable owing to campaigning obligations. None of the MECs in office when the study began were interviewed. After the elections only two MECs retained their positions. This means that seven of them were newly appointed. The researchers therefore felt that they could gain little insight by interviewing the new incumbents.

Secondly, and possibly also related to the preparations for the elections, the SAPS top management denied the researchers access to the provincial commissioners. As a result, the authors were unable to elicit the provincial commissioners’ views on the functioning and overall effectiveness of the provincial secretariats. This is an extremely serious limitation as it means that the major subjects and recipients of the oversight work done by the secretariats could not be interviewed. A related limitation was the failure of the national secretariat to grant the researchers’ repeated requests for interviews. This also resulted in the omission of a crucial perspective from the research study and the report.

An additional constraint on the scope of the study was the difficulty the authors experienced in comparing the structure of the South African policing and oversight system with any similar arrangement elsewhere in the world. An overview of civilian oversight mechanisms in Canada, Australia, Argentina, United Kingdom, Northern Ireland and Hong Kong reveals that the systems of oversight in all of these countries are primarily concerned with investigating complaints against the police (in much the same way as the ICD in South Africa). The researchers could not find any institutions that have a mandate and structure similar to South Africa ’s secretariats for Safety and Security.

Despite these obstacles, the researchers feel that the insights gained from the survey are useful.

5. Overview of structures and mechanisms for oversight6

For the last two years, the proposed amendment of the South African Police Services Act has been the subject of discussion in the National Portfolio Committee on Safety and Security. This legislation could afford an opportunity to strengthen the accountability expected of the police, but to date civil society has not been consulted or invited to engage in these debates.

What follows is a description of the existing provisions of legislation intended to ensure adequate oversight of the conduct of police services. This study will also show that even current legislation is not being used to maximum effect by the secretariats, which calls into question the virtue of legislative amendments aimed at improving accountability. The description will start with the structures that govern policing, and be followed by an overview of existing civilian oversight mechanisms.

5.1 Structures that govern policing

The Constitution provides for a single national police service.7 However, it is structured to function at national and provincial levels and, where appropriate, within local spheres of government.

The National Commissioner is responsible for the control and management of the service,8 and is required to perform his duties under the direction of the National Minister and in accordance with National Policing Policy.9 The Commissioner is also accountable to the National Portfolio Committee and to parliament.

Provincial commissioners are, in terms of the Constitution, subject to the power of the National Commissioner,10 who may appoint the provincial commissioner only with the concurrence of the MEC, who also helps to determine the provincial commissioner’s term in office. Whilst the MEC can veto or approve this appointment, or institute measures for the removal of a provincial commissioner, these powers are not absolute because the Minister and National Commissioner are party to these decisions.11

Members of the Executive Council (MECs) are the political heads of policing in the various provinces. They are responsible for carrying out the executive functions assigned to them by the Premier, and are accountable, both collectively and individually, to the provincial legislature for the exercise of their powers and functions.12 They are also required to act in accordance with the Constitution (and the provincial constitution if one has been passed) and to provide the legislature with full and regular reports concerning all matters under their control.13

Political accountability for the South African Police Service (SAPS) is invested in the national Minister of Safety and Security, who is responsible for the determination of national policy.14 Under the Constitution he or she is required to consult the provincial executives of all nine provinces when determining national policy,15 and, under section 4 of the SAPS Act 1995,16 to set up a committee to ensure effective co-ordination17 and to convene its first meeting. The procedures followed, however, are to be determined by the committee itself. The Minister is also responsible for establishing a Secretariat.

Provincial government

Executive authority in each province vests in the Premier,18 who, together with the other members of the Executive Council, is entrusted with implementing all national legislation within the functional areas listed in Schedule 4 (except where the Constitution or an act of parliament provides otherwise). Schedule 4 classes policing as a functional area “to the extent that the provisions of Chapter 11 of the Constitution confer upon the provincial legislature’s legislative competence.”19

Each province may approve a constitution and pass legislation regarding a functional area listed in Schedule 4, subject to certain processes and provisions. In effect this means that a provincial legislature may pass legislation with regard to policing matters that fall within its competency, provided that these do not conflict with national legislation. (See sections 146 and 147 of the Constitution for more detail.)

Certain powers have been conferred on provinces in relation to policing. Each is entitled to:

Provinces may set up investigations or appoint commissions of inquiry into any complaints concerning police inefficiency or breakdowns in relations between the police and any community. In such cases they are required to make recommendations to the cabinet member responsible for policing.21 On receipt of a complaint lodged by a provincial executive, an independent police complaints body (established by national legislation) is charged with investigating any alleged misconduct of, or offence committed by, a member of the police service in the province.22

The Constitution stipulates that a provincial legislature provide mechanisms to ensure that all provincial executive organs of state are accountable to it; and to oversee the exercise of provincial executive authority in the province, including the implementation of legislation; and any provincial organ of state.23 Further, the provincial legislature or any of its committees may summon any person to appear before it to give evidence on oath or affirmation, or to produce documents. It may also require any person or provincial institution to report to it, and compel any person or institution, in terms of provincial legislation or the rules and orders, to comply with a summons or requirement in terms of paragraphs (a) or (b). In addition it may receive petitions, representations or submissions from interested persons or institutions.24

The Constitution makes provision for a provincial commissioner to be called before the provincial legislature or any of its committees to answer questions.25 He or she (the commissioner) must also make an annual report to the provincial legislature on policing in the province.26

A provincial legislature may determine and control its internal arrangements, proceedings and procedures; and ensure that the rules and orders concerning its business demonstrate due regard for representative and participatory democracy, accountability, transparency and public involvement.27 This body is also required to encourage public involvement in the processes of the legislature and its committees, and conduct its business in an open manner. That is, it must hold its sittings, and those of its committees, in public, but reasonable measures may be taken to regulate public access, including access of the media, to the legislature and its committees; and to provide for the searching of any person and, where appropriate, the refusal of entry to, or the removal of, any person. A provincial legislature may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable in an open and democratic society.28

Section 125(3) of the Constitution stipulates that it is the duty of the national government to provide assistance to the provinces. This applies to all functional areas (including policing) listed in Schedule 4. The Constitution states that national government must assist provinces to develop the administrative capacity required for the effective exercise of their powers and the performance of their functions, using legislative and other measures.

The National Assembly in parliament is responsible for holding the executive and organs of state accountable. Section 102 of the Constitution gives the National Assembly the ultimate authority to dissolve Cabinet. The essential functions of the National Assembly are set out in section 42(3), and include providing a national forum for public consideration of issues raised in legislation that is about to be passed, and by scrutinizing and overseeing executive action. This provision is strengthened by Section 55(2) of the Constitution, which requires the National Assembly to provide mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it. It is also expected to maintain oversight of the exercise of national executive authority and any other organ of state. This includes the implementation of legislation.

Section 57 (1) empowers the National Assembly to determine and control its own internal arrangements, proceedings and procedures. It is also entitled to make rules and orders concerning its business, albeit with due regard for representative and participatory democracy, accountability, transparency and public involvement.

Members of the Cabinet are accountable, both collectively and individually, to parliament, and must provide that body with full and regular reports concerning matters under its control.29

The role of members of the National Council of Provinces (NCOP) is to represent their provinces to ensure that their interests are taken into account in the national legislative process. The NCOP oversight role is implicit in Section 66(2) of the Constitution, which requires that a cabinet member, deputy minister or an official in the national executive or provincial executive should attend every meeting of the NCOP and of its committees.

The Constitution also sets out the direct oversight responsibilities of the NCOP to:

Portfolio Committees are key mechanisms provided for in the Constitution to assist Parliament in fulfilling its oversight and accountability functions. These committees monitor and review the actions of the different departments of government, and are also charged with holding officials and their ministers accountable. The structure and working arrangements of these committees are governed by rules of parliament. In addition to receiving and scrutinizing budgets and the annual reports of government departments, the committees also have a responsibility to hear submissions from Non-Governmental Organizations (NGOs) and other interest groups when these concern legislative matters. These committees are empowered to inquire into any matter, and to compel representatives from any government department or institution to present themselves for questioning. Section 199 (8) of the Constitution states: “To give effect to the principles of transparency and accountability, multi-party parliamentary committees must have oversight of all security services in a manner determined by national legislation or the rules and orders of Parliament”.

5.2 Civilian oversight mechanisms

The National Secretariat of Safety and Security

The Constitution provides for the establishment of a civilian secretariat for the police service.30 The SAPS Act section 2 also requires the Minister to establish a secretariat under a Secretary, who, in consultation with the Minister, is required to appoint personnel and to manage and administer the secretariat.

The functions of the secretariat, which are spelt out in Section 3(1) of the SAPS Act, are to:

Section 3 (5) of the SAPS Act stipulates that the subsections mentioned above as applicable to the national secretariat apply mutatis mutandis to all provincial secretariats for Safety and Security.

The SAPS Act also gives broad powers of access to the secretariat. In terms of section 3(2), it may if it is reasonably necessary for the performance of its functions,

These provisions are also applicable to the provincial secretariats.

The SAPS Act also makes provision for provincial secretariats. These are set up by “provincial government” in consultation with the Minister. Section 2(b) states that a provincial government may establish a provincial secretariat, to be called the Provincial Secretariat for Safety and Security, provided that the date on which it will come into operation shall be determined by the provincial government in consultation with the Minister.

6. Findings

6.1 Role of the secretariats

The above section has outlined the legislation and legislative framework within which the secretariats operate. However, it cannot be assumed that the intention of the law translates adequately into practice. The interviews and focus group discussions were used to explore any mismatches between intention and practice.

Many of the representatives of the provincial secretariats were of the opinion that they played a crucial role with respect to policing in their provinces. The most important role they identified was the monitoring of police on service delivery, transformation, representivity, allocation of resources and performance. Only some secretariats played a co-ordinating role in facilitating the provincial quarterly review sessions held with the SAPS. At these reviews, the police are required to account for their performance and table their operational plans, which are scrutinised closely. Problems are discussed and solutions suggested. Another co-ordinating function for many of the secretariats is the role they play in provincial crime prevention forums, or “justice cluster” meetings, which bring together all the Criminal Justice System (CJS) roleplayers as well as members of the ICD. Reports on various aspects of policing are often sent to the MEC. Others emphasised the centrality of keeping social crime prevention on the agenda of the SAPS and the departments of Social Services, Health, and Arts, Culture, Science and Technology (DACST), and of initiating social crime prevention projects.

The secretariats are engaged in numerous activities, which range from trying to address the root causes of crime by implementing various projects, to conducting community perception surveys and exit polls at police stations. The latter were conducted to measure the community's satisfaction with police performance. Both the Free State and Western Cape have undertaken large surveys to elicit the community’s views on police service delivery. Some secretariats have established a “complaints and investigation” registry to deal with service delivery complaintsThis will be discussed in greater detail in a later section.

Members of four of the provincial secretariats attend meetings of the criminal justice cluster in order to identify or become aware of blockages in the criminal justice system and to make suggestions for intervention. In Gauteng and Free State, one member of the secretariat focuses on the provincial Family Violence and Child Sexual Offences unit, given that crimes against women and children are considered a priority problem. This type of monitoring means that better resources are made available to the units concerned. Moreover, Gauteng has employed 21 field workers, and deployed them in all seven policing areas to do basic monitoring at station level. Oversight of the metropolitan and traffic police is also undertaken in Gauteng and the Western Cape. Again, the provinces of Gauteng, Limpopo, Mpumalanga, Northern Cape and Western Cape provide a great deal of support to CPFs, while the Eastern Cape secretariat has been instrumental in establishing and maintaining Community Safety Forums (CSFs) in that province.

Members of the secretariats acknowledged that there are gaps in their coverage that are attributable to resource constraints. For some of the secretariats this translates into too few staff members, while for others it means that personnel lack appropriate skills. However, all of the representatives of secretariats interviewed felt that they were doing the best possible job they could within these constraints.

Some of the respondents expressed frustration with numerous issues. These included a lack of strategic vision, the absence of consultation in the formulation of laws that the SAPS is required to enforce, the limitations of their power to make recommendations to the SAPS, their lack of interaction with line function SAPS members, and budgetary constraints. Some members have contributed to the discussion of amendments to the SAPS Act, but carrying these suggestions forward has been left to the national secretariat. More importantly, all interviewees cited the lack of clear political direction from the Minister of Safety and Security as a major obstacle to the strengthening of civilian oversight.

6.2 Mechanisms for reporting between national and provincial secretariats

None of the provincial secretariat members interviewed mentioned being aware of any protocols on how the provinces are related to the national secretariat. Most of the provinces report that they have little or no contact with the national body apart from the monthly Heads of Department and the annual financial meetings. The agendas at these meetings are reported ly “idea-driven”, which means that little process informs the discussions.

Under the previous National Secretary, meetings between the functional bodies in each province and the national office used to be held, but these no longer take place. It is therefore difficult for some members of the provincial offices who are not heads of departments (HODs) to gain access to, and communicate with, their counterparts at the national level. Contact with their provincial counterparts is largely informal, as are those relationships that have developed between provincial and national staff members. Greater contact has been established in those cases where task teams have been formed, for example to develop a national police station evaluation tool or to establish CSFs. These task teams meet more frequently, and have specific agendas.

There is no combined strategic planning between the secretariats, even though this has been identified as desirable by the provinces, who would like the national secretariat to initiate a process of collaborative planning and the development of a common vision. According to one respondent, the national and provincial secretariats had decided at one of their monthly meetings to undertake combined strategic planning and to include the ICD in the shared planning process.

In one sense, the provincial secretariats are stronger, better funded and better established than the national secretariat, which is seen to be lagging behind. The budgets of the various secretariats also seem to be larger than that of the national secretariat, which is also perceived as lacking capacity in human resource and budgetary terms. The provinces feel that the national secretariat requires a better understanding of civilian oversight and governance, so that it is better placed to give direction to the country as a whole.

All of the representatives of provincial secretariats interviewed mentioned that the decision by a previous Minister for Safety and Security, Steve Tshwete, to place the national secretariat under the guardianship of the SAPS had had unhappy results. These included a greater confusion of roles and of accountability, and the disempowerment of the national secretariat. According to Pelser, the first sign of Minister Tshwete’s intentions came with the appointment of Lindiwe Mtimkulu as his special advisor, a role which had previously been associated with that of the Secretary.31 This was quickly followed by the “redeployment” of Azhar Cachalia, the downgrading of the post of Secretary to deputy director general, and a hard and fast rationalisation of the secretariat’s structure and staff.32 The woes of the secretariat were compounded by the Public Service Act of 1994, s7(3)(a). Schedule 1 of this Act states: “the head of the Department of Safety and Security is the National Commissioner of the SAPS”. However, the president, on the advice of the Minister (of Safety and Security), “may amend Schedule 1 or 3 by proclamation in the Gazette and may do so retrospectively to the date of the said advice or request”.33 Furthermore, the Public Finance Management Act 1 of 1999 stipulates that “every department must have an accounting officer”,34 and Section 36(2)(a) states that “the head of the department shall be the accounting officer for the department”. But scope is allowed for someone other than the National Commissioner to be the accounting officer of the national secretariat. To this end Section 36(3) provides that “the relevant treasury may, in exceptional circumstances, approve or instruct in writing that a person other than the person mentioned in subsection (2) be the accounting officer for a department”. Moreover, the relevant treasury may also withdraw that approval in writing.35 The SAPS Annual Report for the financial year 2000–2001 confirms the secretariat’s subservient position. This restructuring directly contradicts some of the provisions of the White Paper on Safety and Security, approved by Cabinet in September 1998, which enhanced the functions of the secretariat,36 in particular those related to the key policy levers of strategic planning and financial oversight of the department.37

1999 was a watershed year for the national secretariat, because it was then that the Auditor General reported: “the secretariat was once again not fully functional during the year under review, and that clarity regarding the position and functions of the secretariat needed to be obtained in terms of effective civilian oversight over the SAPS”.38 It continued: “an audit revealed that the situation had not improved and that only 51.4 per cent of the allocated budget had been utilised”.39 This summary repeated the findings in the previous year’s Auditor General’s Report. In the SAPS Annual Report 2000–2001 the same view was reiterated.

Moreover, the decision to transfer the National Crime Prevention office from the national secretariat to the SAPS has further disempowered the former by moving responsibility for crime prevention and reporting away from the National Secretary. Consequently, some of the provincial secretariats question whether a national secretariat is necessary

6.3 Relationship between the national and provincial secretariats

All the interviewees from provincial secretariats were of the opinion that they did not have a structured relationship with the national body, save through the monthly HOD meetings. Many had a negative view of the overall functioning and effectiveness of the national secretariat. In the limited instances where provincial secretariats reported a positive relationship with members of the national secretariat, this appeared to be based on strong personal ties rather than any procedural or structural understanding.

For the most part, although the provincial secretariats are autonomous and although no protocols govern this relationship, they expect the national secretariat to not only play a co-ordinating role but also to provide guidance on strategic policy matters. Some of the interviewees felt that the national secretariat should have a policy-making function, whilst the provincial secretariats should attend to “ground level stuff”, such as monitoring service delivery and compliance in the police.

There is no real sharing of best practice between the national and provincial secretariats for the greater good. The only joint project undertaken has been the development of the national monitoring tool. The monthly Heads of Secretariat meetings were often reported to be not strategic and worth attending by the leaders of the provincial secretariats, who delegated minor officials to appear in their stead. Moreover, the crucial MinMEC meetings, which could promote greater co-ordination between provinces and the national office, have not been held for over a year, which suggests that their strategic value is also questionable.

6.4 Relationship between provincial SAPS and secretariats

The nature of the relationships between the SAPS and the secretariats at provincial level seems to be heavily reliant on the individuals concerned. In those provinces where the MEC and the provincial commissioner have good relationships, the two offices work well together and are largely supportive of each other. However, it is apparent that almost all of the provinces have, at some point, experienced tensions in this relationship. According to some of the respondents, for the first couple of years of the secretariats’ existence, they were regarded with suspicion by the SAPS, and met with resistance rather than co-operation. Since then, however, officials in these departments have taken a less prescriptive approach and focused on relationship building through negotiation and consultation. As a result, partnerships have grown and developed and are now very positive.

Those provinces that have excellent working relationships seem to have developed them through adopting a constructive approach. They are careful not to be seen to be critical of the SAPS in public, but rather build on advertising the good work that is being done to transform the police.

While relationships between the secretariats and SAPS have improved and are reported ly good at management level, resistance to the work of the secretariats is still reported at local police station level. This may be attributable to a lack of understanding “on the ground” of the role of the secretariats, and to a general reluctance to openly share information.

Information sharing

Because the secretariats are unable to compel stations to provide information to them directly, requests for information from the SAPS at station level have to go through the Provincial Commissioner’s office. This procedure can slow down processes considerably. In the provinces the Heads of Departments (HODs) are junior to the Provincial Commissioners; consequently the MEC often has to be brought in to make a request to the SAPS on behalf of the secretariats.

Although they have no formal partnership, some of the provincial secretariats and SAPS have undertaken joint programmes. One province is in the process of developing a formal Memorandum of Agreement between the SAPS and the secretariat to ensure better co-operation and to prepare the ground for developing joint programmes. The frequency with which meetings are held between the SAPS and the secretariat in the provinces varies, from every week to every three months. However, in all of the provinces there are ad hoc discussions of issues as they arise. In Limpopo, the secretariat’s introduction of the Police Service Excellence Awards system has further strengthened the relationship between the SAPS and the Secretariat.

Interestingly, from the perspective of the previous chair of the Parliamentary Standing Committee, the relationship between SAPS and the secretariats is not as good as reported by the secretariats, especially at national level. According to him, there are large discrepancies, and it is evident the two offices (SAPS and secretariat) do not sit down together and write reports co-operatively.

6.5 Relationship between secretariats and the ICD

In general, relations between the ICD and the secretariats were described as “good” by the latter. However, there were provinces where only an ad hoc relationship existed between the secretariat and the ICD.

Where there was a good relationship, the two bodies worked together quite closely. Some of the secretariats made an effort to include the ICD in their activities, with varying degrees of success. In the North West, both the secretariat and the ICD agree that they have an excellent working relationship, and have embarked on many joint programmes. A similar state of affairs exists in the Northern Cape, where the secretariat tries to include the ICD in its community outreach activities. In this case, the secretariat views the ICD as part of its department. It also refers matters to the ICD for investigation.

The frequency of meetings between the two bodies varied from province to province, with most of them taking place on an ad hoc basis rather than according to a scheduled programme. In those provinces that have provincial crime prevention or justice cluster meetings, the secretariats and the ICD would meet regularly at these forums. No protocols exist to govern this relationship. Some participants believed that there should be greater co-operation between the ICD and the secretariats because such a partnership could help to improve policing practice.

In Gauteng and the Western Cape, the ICD takes part in the quarterly review sessions with the SAPS. Cases are referred to the ICD, but the secretariats deal with complaints concerning service delivery. However, in Free State, where a Complaints and Investigation registry has been established, cases are not being referred to the ICD because of a political directive to this effect. The result has not gone unnoticed by the ICD although it may be unaware that a directive has been issued. In KwaZulu Natal, too, there appears to be rising tension over the roles and functions of the secretariat and ICD vis-a-vis complaints and investigations.

In four provinces the interviewees from the ICD described its relationship with the secretariat as either “very good” or “good”. In Free State, Gauteng and the Western Cape meetings with the secretariat are held bi-weekly, quarterly or monthly. However, in two of the provinces the representatives of the ICD reported that the relationship was either minimal or non-existent. It is difficult to establish why this should be the case. Perhaps it is another manifestation of a familiar source of concern: that good working relationships seem to be personality-based rather than governed by structured processes and protocols. In Mpumalanga there is a great deal of instability in the ICD. The position of permanent provincial head has been vacant for approximately two years. In many of the provinces, too, the ICD is severely hampered by resource constraints. This no doubt makes it more difficult for it to establish strong working relationships with other bodies.

One regional director of the ICD felt that the secretariat and the ICD should be one department. The reason given was that the ICD was understaffed, both nationally and provincially, with personnel carrying a heavy workload and funded by a budget equivalent to that of one provincial secretariat. Another was of the opinion that the secretariat had no powers, and was therefore a “toothless” body. Therefore it should have been incorporated into the ICD from the beginning.

The degree to which joint initiatives are undertaken by the ICD and the secretariat depends on the level of co-operation between them. Collaboration ranges from involvement in new projects to communications matters, where an MEC may ask a representative of the ICD to accompany him or her on a visit to a problematic area. However, to date no joint investigations have been undertaken by the ICD and the secretariat. In one of the provinces the ICD attempted to initiate joint auditing of police stations, but it had to carry out the task on its own because the secretariat had no capacity to assist.

Members of the ICD agreed that they should be working more closely with the secretariats. One suggestion made concerned sharing of both research and information on problematic police stations. If the information were to be combined, the problematic stations could be dealt with holistically. Another concern raised during the interviews related to a recent phenomenon: the ICD was required to report to the MEC. This, it was argued, undermined the legislative independence of the ICD.

6.6 Policy monitoring and evaluation

Apart from the oversight of police performance, policy monitoring and evaluation is a primary focus of the secretariats, as is shown by its being allotted a special directorate for this function in each of the provincial offices. None of the monitoring systems are Information Technology (IT) based, and although the Complaints and Investigation desks set up in some of the provinces have Information Technology systems, they are in the early stages of development.

Those provinces that do have Municipal Police Departments (KwaZulu Natal, Gauteng and Western Cape) have not yet extended their monitoring function to include MPDs.

The provincial secretariats generally have a common view of what is expected of them in terms of their policy monitoring role, even though this is by no means a co-ordinated function. They examine SAPS policies, national instructions, relevant legislation and the way in which the police implement these instruments. The secretariats are also concerned about the impact that policies, national instructions and legislation have on the SAPS. Although it is difficult to monitor and evaluate many of these, the secretariats attempt to do so, primarily by attending SAPS meetings and quarterly review sessions, and assessing how the police discuss and respond to policy questions in such forums. The secretariats also aim to ascertain whether policy is being implemented, and if not, what the reasons are. They also devise ways in which they can help the SAPS to implement policy, where appropriate. A member of the secretariat said “policy monitoring is the crux of our monitoring function”.

Another topic concerned how the policy monitoring function could be split between the secretariat and the SAPS. One suggestion was that the SAPS should be the implementing agency, whilst the secretariats should confine themselves to making recommendations. The reason given was that policing is a national competency, and that provincial and area commissioners are limited in their ability to bring about transformation by the SAPS national office. Therefore the secretariat could influence matters on the practical level.

Some of the members of provincial secretariats felt that the national secretariat should be primarily concerned with policy-making at a national level, whilst they (the provincial secretariats) should deal with “hands-on or operational issues”, such as monitoring the implementation of policy.

One member of the Free State provincial secretariat was of the opinion that their policy monitoring role was limited. This respondent thought that the secretariat should be monitoring and influencing the SAPS in respect of implementing policy decisions. Previously the secretariat had had some say in appointments made by the SAPS: they had assisted in the short-listing of candidates and sat on the interview panel. This has now stopped. Another respondent in the Western Cape saw policy development as a management issue. In his view the police draft their own policies as they have always done; the problem lies in their implementation. He therefore saw the role of the secretariat as basically the monitoring of policies, their implementation and their suitability.

6.7 How is policy monitoring undertaken?

There is some uniformity in the approaches of the various secretariats to policy monitoring and implementation. In general, they monitor police performance with respect to service delivery to communities, the implementation of relevant legislation such as the Domestic Violence Act, complaints against the police and the carrying out of the objectives set by the SAPS for each quarter. Moreover, they monitor the implementation of policy in different ways. These include conducting station visits, placing suggestion boxes in police stations and undertaking in loco inspections. Quarterly reviews and monthly meetings with the SAPS are held to determine how policy is being implemented. In addition, the Free State, Gauteng and Western Cape secretariats have established Complaints and Investigation registries. In sum, the monitoring function is interpreted in a practical manner. Almost all interviewees acknowledged that although lack of capacity was an obstacle, the secretariats managed to fulfil their mandate to some extent.

In Free State, the secretariat examines the SAPS serious crime trend reports, undertakes perception surveys, conducts audits of resources, both human and logistical, and looks at the number of dockets in hand. It also attempts to treat each police station as a unit. It makes recommendations to the MEC, who then approaches the provincial commissioner. If the commissioner does not act on these recommendations, the secretariat liaises with the Portfolio Committee. According to a member of the secretariat, the idea of the national monitoring tool originated in this province, because the secretariat had started to monitor the police more rigorously after 1999. There were six vacancies in the Free State secretariat at the time the study was done, but nevertheless its members felt that the body’s organisational structure was in alignment with its mandate.

The Gauteng secretariat employs 21 field workers, three in each of the seven policing areas. A new batch will be employed after the start of the new financial year. Their task is to look at the mechanisms used at each station, to undertake research and analysis and to compile reports for the secretariat, in this way providing it with up-to-date information on the different stations. The station structure, management and leadership are scrutinised by the secretariat, and special attention is directed towards the Family Violence and Sexual Offences units in view of the high incidence of crimes against women and children. The secretariat has built a good relationship with these units and a designated staff member examines their resources, case loads and dockets. This close co-operation has undoubted ly operated for the greater good. The secretariat has made quarterly review sessions with the SAPS in the province mandatory. This is another mechanism by means of which the performance of the police is monitored and they are held accountable for their actions. Interaction with the police is not limited to the quarterly review sessions. The secretariat responds to problems at stations in a proactive way. Lack of capacity was not seen as a problem by respondents in this province, because the secretariat could contract consultants to provide assistance when needed.

In the Northern Cape, the secretariat undertakes station visits, holds meetings with station commissioners and SAPS management, and obtains both written and verbal reports from SAPS. This secretariat has recently started to take the SAPS members to meetings of the provincial legislature, where they are required to make presentations. This is one way in which the SAPS is held accountable for its performance. The secretariat also receives complaints from the community regarding the investigation of cases, which it refers to the ICD. If that body then makes recommendations arising from its investigations, the secretariat monitors whether or not these have been implemented by the SAPS. With respect to capacity for monitoring the Northern Cape secretariat was the worst off: there was only one person in the unit to do the work—all the other posts were vacant.

The Western Cape secretariat carries out inspections in loco, ad hoc investigations and specific interventions led by task teams. The latter act under instruction from the MEC. Complaints from the public regarding poor service delivery and police performance are received by the Complaints desk. This secretariat has one employee dedicated to conducting inspections in loco. These are undertaken without prior consultation with the station commissioner. Once a station is identified as requiring inspection it is examined as a whole, from the Client Service Centre to human resources. The secretariat examines whether standing orders are being adhered to (for example whether all members of the police are wearing name tags) and whether policies are being implemented. It also finds out what resources are available and how they are distributed, inspects the cleanliness of police cells, enquires whether the cells are visited hourly, and assesses the quality of leadership and management at the station. Once this inspection is completed, the SAPS is advised on how conditions can be improved at the station concerned. Capacity was not seen as an issue in this province.

The Eastern Cape secretariat has the smallest budget allocation of all the provinces, and is therefore dependent on donor assistance to perform its duties. Despite a lack of capacity and resources, the secretariat performs its policy monitoring function by attending SAPS Provincial Management Forum meetings and assessing how the police engage with the policies at that level. The testing of the policy implementation is difficult, particularly as there is only one person from the secretariat directly involved in this task. This person checks policy implementation by examining the SAPS communication strategy and checking the Occurrence Books and cell visit registers at police stations, and uses an adapted version of the national monitoring tool for half a day at each police station visited. In addition, the secretariat has four district officers, who are responsible for examining the community policing, social crime prevention strategies, equity in resource allocation and complaints against the police.

The North West secretariat conducts station visits to assess service delivery, monitors the implementation of the Employment Equity Act at station level, and examines the operational direction of the SAPS to ensure that it reflects the national and provincial priorities. In addition, it addresses complaints against the police brought by members of the community by either investigating these complaints themselves or referring them to the provincial ICD. Much of the policy and operational strategy of the SAPS is assessed through examination of the quarterly reports that are submitted to the secretariat by the SAPS. The North West secretariat also engages in a number of research projects, which include a study of service delivery in the province and an evaluation of the implementation and impact of sector policing on the province.

In Limpopo, the secretariat monitors policy at a strategic level by means of holding quarterly meetings with the SAPS provincial office with the aim of making contributions to the strategic planning and identification of provincial priorities of the police. At these meetings, the SAPS budget is also examined in terms of expenditure and allocation of resources. In addition, the more practical policies (such as that concerning SAPS vehicles) are assessed in terms of how the police understand and implement them. Currently Limpopo has insufficient capacity to assess the worth and appropriateness of the policies. Instead, the secretariat is focusing on identifying where implementation is going wrong and assisting in correcting deficiencies.

At a more operational level, the Limpopo secretariat monitors the SAPS by using the national monitoring tool at stations, and by receiving and responding to complaints from the community. It makes both planned and unannounced station visits. The MEC also visits stations without prior warning when responding to complaints about the police from the public. Suggestion boxes are provided at police stations. The secretariat also undertakes thematic monitoring, for example of Victim Empowerment programmes at stations. It has initiated a Police Service Performance Excellence Award programme (which has been duplicated in other provinces as a result of its success). This allows for the recognition and reward of well-performing police stations, and provides the opportunity to identify and share good practice. This secretariat is severely under-resourced, with only 51 staff members out of an allocation of 75. They therefore do not have the capacity to follow up complaints against the police, although the secretariat does so if the MEC requests that a specific investigation be carried out.

In Mpumalanga the secretariat pays particular attention to the CPFs, monitoring their functioning and activities and their relationships with the police stations. Its attention is largely channelled into assisting with the establishment and running of CPFs. In addition, the secretariat helps to introduce multi-agency structures at the local level to assist local crime prevention strategies. The secretariat employs about 30 field workers to train communities in social crime prevention and to monitor programmes initiated by the communities. In this way the secretariat is able to oversee the SAPS at local level and monitor the implementation of social crime prevention processes. The secretariat makes use of its own adaptation of the national monitoring tool at most of the police stations, but applies the national tool in its entirety at the high-priority stations.

The KwaZulu Natal secretariat uses police station visits to assesses service delivery and complaints against the police. Monitoring at station level is hampered by the fact that there are only three people in the monitoring office and the province has a high number of police stations, many of which are difficult to reach. In addition, the secretariat has only one subsidised and one government vehicle for use in the field. However, the secretariat undertakes not only local level monitoring but “ad hoc monitoring in response to public demand”, again through visits to police stations. This province was not alone in identifying a need for skills development in policy monitoring. Respondents said that incumbents of monitoring posts are thrown in at the deep end. Many of them have no prior training or experience of policy monitoring, which was identified as an area of weakness in the secretariat. However, a good practical understanding of what is required is beginning to develop.

The national secretariat carries out its monitoring function by going to police stations, identifying critical areas requiring intervention, and dealing with problems delegated by the Minister for Safety and Security. According to the national secretariat, it takes a “national view on all issues”. It provides the Minister with suggestions for improvements in both policy and practice, after which the Minister engages the National Commissioner on these matters. However, on some issues the national secretariat deals with the National Commissioner directly. Although the secretariat brings what it considers to be errors in policies to the attention of the Minister, its other areas of focus are limited by severe capacity constraints.

Policy is not dealt with uniformly in all the provinces, although there is a common feeling that community policing and civilian oversight have not been adequately provided for in the existing policy documents.

6.7.1 Indicators

The majority of the secretariats do not have a set of indicators that can be used to monitor police performance and policy implementation. Instead, they derive their information from reports submitted by the police and secretariat field workers at the police stations, complaints received, examination of the SAPS’s annual plans, station plans and suggestions put in the boxes at police stations. Some secretariats admitted that they developed indicators as they went along. A number of respondents in many of the provinces believed that a uniform set of monitoring indicators should be developed and applied nationally.

In the Western Cape the SAPS have drawn up the Western Cape Police Charter, which undertakes to maintain a certain level of police performance. This appears to be unique to the Western Cape. In Gauteng the secretariat consults a range of sources when monitoring the police. These include the SAPS annual plans, station plans, field worker reports, impact assessments and complaints against the police. In addition, the secretariat measures the criteria in terms of which the police change the category of a station (from being high priority to low priority). The Gauteng secretariat has also installed suggestion boxes at police stations.

Until recently, the Eastern Cape secretariat did not have its own set of indicators. Instead it was guided by the SAPS plans and equity targets. However the secretariat’s latest strategic plan apparently has made provision for the development of indicators. Mpumalanga has its own provincial tool which provides its indicators. This is used together with the national tool. Limpopo uses the national tool, national policies, SAPS annual reports and training policies, provincial expenditure patterns, and its Police Service Performance Excellence Awards as indicators. In Free State there are guidelines for monitoring police performance. This secretariat used to be party to resignations, promotions and transfers within the SAPS, but the flow of information has stopped. The secretariat has arranged a meeting with the SAPS to discuss the issue. In addition, it has conducted two community perception surveys, and discussed the results at a round table meeting with the provincial SAPS. A Steering Committee composed of members of the SAPS, secretariat and ICD generates interventions, and the secretariat monitors their implementation and impact.

A problem identified by the Northern Cape and Free State secretariats was that the SAPS sets targets whereby it monitors itself. According to them this process is incorrect, because it makes the SAPS untransparent.

6.7.2 The SAPS and policy

There is a general recognition of the complexity of the policy environment, which is made more difficult by the existence of many “unwritten” SAPS policies.

According to some respondents, the SAPS is not aware of some of the policy and legislative changes that are taking place, let alone their implications. There is also a discrepancy between the interpretation of some policies by the SAPS and their interpretation by the secretariats. According to the policy, the provincial policing priorities and needs should be determined by the secretariat in partnership with SAPS.

According to the Northern Cape and Free State secretariats, the SAPS sets itself policy targets (for example regarding employment equity), policing priorities and objectives. The secretariat, in contrast, does not measure the SAPS against what it wants to achieve, but examines whether or not the targets are realistic. In some instances the secretariat hears about policy changes by chance. An example is the removal of a detective service from Barkly West. Such a re-configuration of staff will make the performance measures that had been adopted earlier somewhat inappropiate. The Northern Cape and Free State secretariat representatives made the crucial point that it is not only important to monitor the evolution of policies, but also to ensure that the process is transparent.

It is difficult at the national level to perform the monitoring role effectively, an issue that is recognised by all of the provincial secretariats. It is, according to the provincial offices, impossible to monitor the person who pays your salary.

6.7.3 Monitoring of police conduct, efficiency and effectiveness

Monitoring the overall transformation of the SAPS includes oversight of the conduct and performance of the police. Most of this monitoring takes place at station level by means of the application of the national monitoring tool and station visits. In addition, analysis of complaints laid against the SAPS by members of the public provides information that assists into the monitoring function.

6.7.3.1 The National Monitoring Tool

The National Monitoring Tool (NMT) was developed by the national secretariat in consultation with members of the provincial secretariats, to ensure a degree of uniformity in monitoring and evaluation of the SAPS across the provinces. The national secretariat is to co-ordinate the implementation of the NMT, which began in May 2004. The NMT may be available electronically throughout the country in the future, but in the meantime it is a manual system.

According to the national secretariat the NMT could be used to “turn a station around”. It is intended to assist provincial secretariats to undertake clearly focused monitoring and evaluation. However, at present the developers of the NMT acknowledge that it is “only the start of developing a monitoring mechanism and…more work needs to be done”. The NMT was tested on so-called “good” and “bad” stations in some provinces.

All of the provinces are aware of the NMT, and already implement it in varying degrees. Most of the provinces have adapted it, however, as there is a general acknowledgement that the NMT is somewhat unrealistic in its resource and time requirements. This is attributed to poor communication between the national and provincial secretariats during the development of the national tool. The argument is that the national secretariat developed a tool that is not necessarily appropriate to the needs of the provinces. Not all of the secretariats share this view. Those that were more fully involved in the development of the NMT are less critical of the process, although there is a broad agreement that the tool itself is too ambitious to be fully implemented, given the capacity and resource constraints at provincial level.

The KwaZulu Natal, Eastern Cape, Mpumalanga, Limpopo and North West secretariats undertake substantial monitoring of police stations using provincial adaptations of the NMT. They feel that the indicators that were developed through the national process will help them to improve their monitoring of the police.

6.7.3.2 Station visits

In addition to the monitoring of the police stations, the secretariats also oversee police performance in an ad hoc manner, and in response to requests from the public. Visits to police stations give the departments the opportunity to address any community complaints and to identify areas that may require intervention. The station visits are also useful in providing an overall picture of policing in the provinces, particularly in relation to policies and operations. They also allow the secretariats to develop a stronger sense of where the policy gaps lie.

Unfortunately, the secretariats do not have sufficient personnel to monitor police performance thoroughly. In addition, many of the secretariats have very limited physical resources, especially vehicles, to enable them to monitor police performance in the field. In spread-out areas in the provinces such as KwaZulu Natal and the Eastern Cape, this is particularly problematic. The KwaZulu Natal secretariat has identified the need to develop a programme to improve police conduct and performance overall. This would be preferable to their responding in an ad hoc manner to isolated incidents, as at present.

6.8 Complaints and investigation desks

A recent development has been the establishment of Complaints and Investigation desks in the Free State, Gauteng and Western Cape secretariats in response to complaints about police performance and service delivery from the public. However, some of the interviewees expressed concern that these desks may be encroaching on the ICD’s mandate.

Section 206(5) of the Constitution states that provinces may investigate, or appoint a commission of inquiry into, any complaints about police inefficiency or a breakdown in relations between the police and any community; and must make recommendations to the Cabinet member responsible for policing.40

The Free State formally established a Complaints registry in 2003. Within it is a Call Centre, an electronic system into which every complaint is entered and allocated a reference number automatically. A toll free line will be operational from 1 April 2004 between 8.30am and 4.30pm. The categories of complaints had not been finalised at the time this research was undertaken. However, a cause of some concern is that a political directive was issued by the previous Free State MEC that no referrals could be made to other agencies. In practice this would mean that even cases falling within the ambit of the ICD must be investigated by the secretariat. In consequence, the secretariat was seeking to employ investigators to work in the complaints unit. The respondents interviewed from the secretariat could not recall having referred any cases to the ICD. Those from the ICD in Free State lamented this state of affairs, and felt that the secretariat was encroaching on their mandate. According to one respondent, some cases had been brought to the attention of the ICD by the secretariat, but there had been no progress in the matters.

Moreover, at the Free State Complaints registry the secretariat was specifically looking for investigators to fill some of the posts that had been created. According to one respondent, the Act does provide for the appointment of independent investigators. The view of the secretariat was that it was “capacitating itself for more serious matters”. However, the respondent was emphatic that the secretariat was not dealing with the category of cases falling under the mandate of the ICD, but with complaints related to service delivery. At the time the interviews were conducted, four new investigators were about to be appointed. Their function would be “to find out what…the problem [was], intervene, make recommendations and withdraw”.

The KwaZulu Natal secretariat has a complaints department which deals with complaints from the public about service delivery, and offers telephonic or personal consultations. Any complaints are forwarded directly to the provincial commissioner of the SAPS. However, the complaints department does not have enough capacity to deal with all of the complaints that are lodged. A team of people rather than the two staff members currently available is required in that division to deal adequately with the complaints they receive. Although the respondents from the KwaZulu Natal secretariat state that they have a co-operative relationship with the ICD when the need arises, the ICD members report that their relationship with the secretariat is non-existent. This may have some impact on the complaints function of the secretariat. However, the representatives of the secretariat did say that they were attempting to improve their working relationship with the ICD.

As both the secretariats and the ICDs were established to assist in bringing about the transformation of the SAPS, it seems impractical that the two bodies should not work together on certain issues. In particular, the police station audits could be conducted by a joint ICD/secretariat team. This would improve working relationships between the two offices and use resources more effectively. It would also enable them to identify more quickly and efficiently those areas that required interventions. The fact that there are no scheduled regular meetings (such as quarterly reviews or joint planning and strategy workshops) seems to be equally wasteful of the opportunity to pool resources and work together for the common good.

6.9 Local oversight mechanisms

Those interviewed also identified a need for more localized civilian oversight and involvement in policing. This would also provide an opportunity to improve the oversight capacity for local government and CPFs through the development of a range of indicators for use at local level. Local institutions could be trained to use them. This would not only build capacity at local level but would assist the secretariats by providing them with another source of information. The relationship between local government and CPFs was identified as a challenge that indicated a need for a local safety and security network. Some provinces have already started responding to this challenge. In Mpumalanga, for instance, the department has been pivotal to the establishment of Multi Agency Mechanism (MAM) structures that aim to develop social crime prevention projects.

6.10 Policy implementation: the White Paper and the NCPS

The respondents in this study all agreed that, to a large extent, the White Paper has provided the basis for the structure and vision of the provincial secretariats. Where possible (that is, where resources allow), the White Paper provisions have been implemented. In the provinces that have smaller budgets, however, this has been carried out piecemeal owing to severe capacity and resource constraints.

The White Paper also lays the foundation for co-operative interaction with local government. Many of the secretariats are very closely involved in the establishment and support of CPFs or CSFs in their provinces. In addition, there are some provinces that assist multi-agency local crime prevention initiatives through the CPFs. There is a common desire to empower the CPF/CSFs to take up social crime prevention projects more actively.

The White Paper is seen as providing a good policy framework for the work of the secretariats. However, the environment has changed. The developments and provisions allowed in the White Paper are no longer applicable to the current situation. Some members of the provincial secretariats said they were unsure what their futures would be after the remit of the White Paper ended in 2004. There is a need to concretise policy and legislation in the safety and security sector, either through the issuing of a new White Paper or through the development of a Safety and Security Act to replace the current SAPS Act.

Until there is legislation that is able to guide the role and function of the secretariats, many of the respondents feel that the structures and responsibilities of these bodies will remain unclear and open to debate. Many respondents believe that civilian oversight needs to be entrenched and better defined. A possible mechanism suggested for bringing this about would be the restructuring of the Department of Safety and Security in such a way as to allow for three separate and independent offices. These would be the SAPS, the ICD, and the secretariats. All would be on the same level and therefore have equal powers, while maintaining their independence from each other.

The provinces indicated that the difficulties they have experienced in the implementation of the White Paper’s provisions have largely been attributable to problems at the national level (meaning the institutional mechanism that governs the secretariats). The national secretariat is seen to have failed to provide direction to the provinces in relation to the White Paper specifically. It has also offered no guidance in the more general crime prevention versus law enforcement debate. The White Paper in and of itself is not sufficiently clear on crime prevention, which means that supplementary guidance is required on the topic in the provinces.

A facet of the White Paper that is recognised by the provinces as being very important is social crime prevention. The provincial secretariats all have Social Crime Prevention Programmes, and take their implementation very seriously. The White Paper continues to be the driving force behind communication and relations between the secretariats and their partners in these programmes. It is also used by the secretariats to construct projects and initiatives such as the Victim Empowerment programmes and the Integrated Justice System Structures, which also fall under the National Crime Prevention Strategy (NCPS).

However, many respondents felt that large-scale dedicated funding was required for sustained implementation of the NCPS. There is also a degree of tension relating to the ownership and location of the NCPS because it has been moved from the national secretariat to the SAPS.

The Mpumalanga secretariat pays considerable attention to the development of local crime prevention strategies by facilitating multi-agency co-operation at the local level. In this province the Office of the Premier and the secretariat also co-ordinate a provincial crime prevention structure in which all of the provincial departments participate.

One respondent drew a clear line between policy and incumbents by stating that although the policies that already exist are sufficient to bring about the desired changes in SAPS, those in positions of authority are not taking advantage of all the opportunities that the policies and legislation offer.

7. Alignment of the secretariats’ activities with the legislation

Analysis of this research indicates that the secretariats have not exploited sufficiently the opportunities currently offered by the various pieces of legislation and statutory bodies. As a result they have not been able to exert the authority necessary to oversee the police. This may be attributable to either a lack of knowledge or a reluctance to invoke the provisions of certain aspects of legislation because it might threaten the already fragile relationship with the police. The lack of political will and direction in the secretariats is a source of great concern.

The compliance of the national commissioner with instructions issued by the Minister for Safety and Security and adherence to national policing policy should be monitored by the national secretariat. The relationship between the provincial commissioner and the MEC is also a source of debate. However, the Constitution also gives the Provincial Executive (the MEC) certain mandates in relation to policing. The interpretation of these mandates is a source of tension and misunderstanding. The MEC must be consulted when a provincial commissioner is to be appointed, and he or she has the power to remove a provincial commissioner from office. This occurred in one province, where the MEC and provincial legislature passed a vote of no confidence on a provincial commissioner who had yet to take up his appointment. Another issue mooted during the study was whether the MEC should have the same powers in terms of appointment and dismissal in the case of area and station commissioners.

Concerns were also raised regarding the effectiveness of the Minister of Safety and Security’s role in co-ordinating the MinMec meetings. In considering how this mechanism can be improved it is useful to note that the problem is not legislative, but rather a question of the political will of both the Minister and the MECs. The onus is on the committee to determine procedure and modus operandi. There is, for example, nothing prohibiting this committee from making institutional arrangements to ensure effective co-ordination and/or working groups to enquire into issues. If this structure was fully functional and effective it could ensure sound co-ordination between the national and provincial secretariats.

To date some of the provincial secretariats have insisted that the police should table reports to the provincial legislatures, in accordance with their obligations under the Constitution. However, other provincial secretariats, such as those in Gauteng and the Western Cape, have instituted quarterly review sessions with the police. In this way they have placed civilian oversight firmly on the SAPS agenda (See 6.6 & 6.7 above.). This practice needs to be standardised throughout the provinces.

Another institution, the National Council of Provinces (NCOP), has a crucial role to play in the oversight of intergovernmental relations. This applies to any body or institution whose role or functions has bearing on provincial and local government matters. It is apparent that this option has not been fully explored by the provinces with respect to policing. Its potential utility is therefore unknown.

Since 2002 the National Portfolio Committee on Safety and Security has been debating amendments to the SAPS Act. One of the issues under discussion is whether the mandate of the secretariat should be expanded to include police transformation, training, quality assurance, budgeting and social crime prevention.41 The powers of the secretariat as provided for in the amended legislation are broad. In certain instances the Minister would be required to instruct the secretariat to perform certain functions (namely research and oversight). But whilst Ministerial direction (which may be personality driven) may be required in some instances, sufficient core functions have been identified to establish the mandate of the secretariat to hold the SAPS accountable. The debate concerning the extension of the role and powers of the Secretariat requires further scrutiny.

In terms of submissions made to the Portfolio Committee and discussions in this Committee, the debate is motivated by the following concerns.

8. Implications for civilian oversight

There is a need for the SAPS to become a more legitimate, accountable and efficient organisation. Civilian oversight is one of the few instruments by which external bodies can compel the SAPS to realise these objectives rapidly. The provincial and national secretariats are central to civilian oversight, and therefore essential to the transformation of the SAPS. However, the research recorded in this paper indicates that the secretariats are, at best, having mixed success in putting their objectives into practice. This means that although significant gains have been made in the transformation of the police (and other parts of the security apparatus), the overall improvement is disappointing.

9. Conclusion

The restructuring of the national secretariat resulted in its role being diminished. At present it appears to exist only to advise the Minister of Safety and Security. Its previous capacity to develop and monitor the implementation of policy in the SAPS has vanished because of the restructuring that took place in 1999. In order to remedy this situation, the Minister of Safety and Security should place civilian oversight high on his agenda and demonstrate the political will required to make civilian oversight work.

The structure of the secretariats does not easily allow for the establishment of clear lines of communication and accountability between the secretariats and the SAPS. At national level, the lines are blurred by the difficult position of the National Secretary relative to the National Police Commissioner. At provincial level, while the secretariat has relative autonomy but limited influence over the SAPS, by law the SAPS are accountable to their National Commissioner rather than to their Provincial Commissioner.

The provincial secretariats have not used existing provisions in the current legislation to optimal effect. Again, various mechanisms to ensure political accountability that are provided by legislation have not been exercised or tested. As a result, the different provincial secretariats demonstrate varying degrees of success. It can therefore be argued that promulgating more legislation and regulations will not replace the need for political will and clear direction. This means that any review of the SAPS Act must be carefully considered.

In the light of the above, the question arises: Is such a review necessary?

10. Recommendations

1. Existing provisions in legislation must be exploited

A multiplicity of mechanisms for the oversight of policing is provided in the current legislation. The Constitution and the SAPS Act are the primary sources. Moreover there are many additional opportunities to exercise an oversight function which are not specifically detailed in the legislation. These opportunities include regulations, which could be introduced in terms of the legislation, and institutional mechanisms which can be developed to improve oversight. Others are represented by the MinMEC meetings (provided for in the SAPS Act) and national government assistance for provinces (section 125(3) of the Constitution), Provincial commissioners could be called to account at meetings of the provincial legislatures and committees (Sections 206 (9) and 207 of the Constitution). The authors therefore suggest that a process that allows for engagement with the legislation with a view to identifying gaps in existing practice be undertaken as soon as possible, because this would provide direction to the legislative review process.

2. The current role, function and structure of secretariats should be revisited.

After ten years of democracy, relationships between the police and the communities they serve have changed substantially. In addition, the policing environment has undergone considerable transformation. This means that policing priorities and the context within which the SAPS works should inform the strategic process. A review would also include a reassessment of the secretariats’ raison d’etre, and consider possible realignment of their functions and planning processes. This would also allow the position and powers of the National Secretary to be assessed and amended if necessary.

3. The national secretariat should remain a small but effective policy advice think tank for the Minister of Safety and Security and provincial secretariats.

The national secretariat needs to regain its former strategic role as policy advisor to the Minister. Because the provincial secretariats are independent of the national secretariat, it is crucial that the latter should take on a strategic role with respect to policy at a national level, especially as policing is a national competency. The national secretariat should provide guidance and direction to provinces on how policies should be implemented. The NMT provides one mechanism that could be used to assist the provincial secretariats.

4. Common policy analysis and implementation training should be provided for all secretariats.

It is apparent that the capacity (in terms of skills and understanding of the policy, monitoring and evaluation functions) is severely lacking in some secretariats. In addition, the interpretation of these roles can vary. A training workshop that dealt with generic policy management, monitoring and evaluation skills and policies specific to the secretariats would be extremely valuable to all secretariats. It would not only improve the skills of staff members but help them to develop a shared understanding and vision of the role of the provincial secretariats.

5. Collaborative planning and strategising is required between the secretariats and with the ICD.

The national and provincial secretariats should have combined strategic planning sessions, both to create a common understanding of needs and priorities, and to ensure uniformity in approach. The authors also suggest that the ICD and the secretariats have similar planning sessions, so that they can identify areas of overlap and improve co-operation at both national and provincial levels. Outside facilitators could offer a workshop on the topic of the interpretation and implementation of the opportunities available to the secretariats in terms of current legislation.

6. The secretariats should share examples of good practice.

The independence of the secretariats has resulted in a certain degree of isolation. There is very little formal and structured sharing of good practice. This is another element that could be included in the regular planning meetings recommended for all the secretariats.

7. The secretariats should monitor and oversee MPDs and assess how they can best assist them to fulfil their roles.

The institution researching oversight into the MPDs should make recommendations on the role and responsibility of the secretariats in relation to the performance of the MPDs.

8. Structural processes should be introduced to ensure good working relations between the secretariats and the SAPS.

There is currently a marked reliance on the goodwill of people and on effective interpersonal relations to create good working relationships between the secretariats and between the secretariats and the ICD/ SAPS in the provinces. This is an unreliable practice. It is important to develop structures and processes that compel co-operation and interaction.

9. The secretariats should contribute to the policy/legislative review processes

While the secretariats have, in varying degrees, implemented the provisions of the White Paper and NCPS, it seems appropriate, ten years after the advent of democracy, to revisit the understanding of the term “civilian oversight” in relation to the work of the secretariats. The secretariats should embark on a collective process aimed at revisiting their structure, roles and functions in relation to the current understanding of what monitoring entails. The SAPS should also be involved in the process, particularly to indicate what role it would like to see the secretariats playing, at both national and provincial levels as long as it does not dilute the principles of oversight.

Notes

Acknowledgements

The research was made possible by the generous financial support of the Open Society Foundation and the Open Society Justice Initiative.

The authors are grateful to respondents from the National Secretariat for Safety and Security, the provincial Secretariats for Safety and Security, and the regional directors of the Independent Complaints Directorate, who gave of their time to participate in the study.

Thanks are also due to Melanie Lue-Dugmore and Sean Tait of the Open Society Foundation, who assisted with much of the preparatory work for the research. In addition, the authors are grateful to Bilkis Omar, who assisted with the interviews.

The researchers wish to express their gratitude to Antoinette Louw, Anton du Plessis, Melanie Lue-Dugmore, Sean Tait and Michael O'Donovan, who took the time to comment on previous drafts of this report.

About the authors

Duxita Mistry is a senior researcher in th eCrime and Justice Programme, Institute for Security Studies.

Judy Klipin is a part-time lecturer at the School of Public and Development management and a criminal justice consultant