Police brutality: Here’s how to change the law to fix it

Police brutality is pervasive in South Africa. Every few months a video of a shooting or assault reminds us of that.

More than many other factors, it is the failure of discipline within the police that encourages brutality. Members of the Presidential Protection Unit implicated in an assault on motorists recently returned to work. Their suspensions lapsed after the police failed to prioritise disciplinary proceedings against them.

Statistics in the Independent Police Investigative Directorate’s (IPID) latest annual report show that police officers implicated in violence almost always escape meaningful sanction. 

Viewfinder’s Police Accountability Tracker, which will soon be updated with thousands of more recent cases against the police, shows that IPID has had little impact since it was established in 2012. Very few of the cases that it investigates result in police officers being held accountable.

An IPID Act Amendment Bill currently before Parliament has received widespread attention because provisions regarding the appointment of the IPID Executive Director could compromise the watchdog’s independence.

But there are other critical issues in the Bill that need attention.

Well-considered amendments could help improve police accountability.

Overwhelmed watchdog and apathetic SAPS commanders

As Viewfinder’s investigations have shown, the worst police offenders are enabled by systemic failures of the institutions entrusted with oversight and discipline.

IPID is under-resourced and incapable of managing the caseloads of alleged police criminality it registers every year.

Its investigators are overwhelmed, a fact aggravated by the sometimes very large areas of their jurisdictions. The results are poor investigations, lengthy delays and growing backlogs. At one of IPID’s busiest provincial offices scores of case files, dating from as long as eight or nine years ago, lie unattended, an investigator recently told one of us. Even torture cases, which should undoubtedly be prioritised by IPID, routinely go uninvestigated.

And, insofar as IPID’s cases do result in consequences, this is usually in cases that are easy to investigate. IPID often neglects cases that are hard to investigate.

Though IPID has promised a strategy to deal with the backlog, past experience shows that this could amount to mass case closures to lighten the workload.

Meanwhile, police commanders use the existence of IPID and its wide investigative mandate to justify washing their hands of responsibility for pursuing cases against their subordinates. Referring these cases to IPID puts them out of sight and mind, despite this being contrary to the police’s responsibility to ensure the good conduct of its officers.

As a result, problem officers repeatedly implicated in violent crimes often stay on duty. Where IPID eventually makes a finding against an implicated officer, senior officers frequently soft-peddle disciplinary proceedings, or simply fail to initiate them.

Law change can address pitfalls of police oversight

The IPID Act amendment Bill currently being discussed in Parliament is a rare opportunity for a law change to address the challenges of IPID’s workload and police management’s reluctance to discipline its members.

Viewfinder and the Institute for Security Studies (ISS) were among a range of organisations invited by Parliament’s Portfolio Committee on Police to make written and oral submissions on the bill.

We argued that well-considered amendments can help alleviate IPID’s caseload and free its investigators to focus on high-impact investigations, particularly those involving serious criminality. This is possible even while lowering the risk that less serious cases may fall through the cracks. Thousands of common assault and firearm-related complaints which inflate IPID’s workload create an environment for corruption, torture, murder and rape to flourish, and should not be neglected.

Other amendments could compel police management to act against implicated officers, notwithstanding IPID investigations. The risk that these disciplinary proceedings are whitewashed can also be reduced if IPID has the authority to monitor these processes and to intervene when they are found wanting.

But there are also serious risks in the amendment process. A poorly considered amendment could defeat the purpose of IPID by further adding to its already unmanageable caseload. It might also further undermine the already badly neglected South African Police Service (SAPS) disciplinary system.

IPID should have discretion to refer and monitor cases to the police

Amendments in the Bill propose to drop the requirement that IPID investigates complaints relating to common assault cases and police use of firearms when this does not amount to attempted murder. In the most recent financial year, assault and shooting cases accounted for a cumulative 34,062 cases, 74% of IPID’s workload. While the motivation for the amendment has not been spelt out, we assumed that it aims to alleviate IPID’s workload to free its investigators to focus on more “serious” cases.

During public deliberations, some civil society organisations contested these amendments and argued that IPID should investigate more types of cases, not fewer.

Yet, if we accept the need for lightening IPID’s workload and affirming police management’s duty to maintain discipline, a middle-ground is possible.

The IPID Act already makes a distinction between cases IPID “must” and “may” investigate. In its submission to the committee, the ISS pointed out that the Act also affords IPID discretionary powers over whether to “use its own resources to investigate a case or whether to refer it … to be investigated by the SAPS”.

The law could therefore be amended to prescribe that certain cases, particularly those of common assault and firearm-related complaints, which overwhelm IPID, may be investigated by IPID but may also be referred for police investigation.

The main resistance to such a proposal would be the assumption that gave rise to the establishment of an independent police watchdog body in the first place – that the “police cannot investigate themselves”. It is true that police departmental investigations into misconduct against their members are vulnerable to cover-ups.

But the solution cannot be for police management to be excused of responsibility for ensuring high standards of conduct by police officers, and for increasingly larger troves of case files to gather dust in the backrooms of an under-resourced watchdog agency.

So, how to legislate against the risk of police cover-up when IPID refers cases to SAPS for investigation? The ISS’s submission on the bill proposed that IPID be endowed with powers and responsibilities to monitor the speediness and integrity of police’s internal investigations and to intervene if these are poor.

Following a series of Viewfinder exposés, SAPS issued a circular in October 2021 that warned that police supervisors who failed to “act promptly” against accused officers were themselves guilty of misconduct. An IPID monitoring role appears to be consistent with the SAPS’s own view, contained in this circular, on what should happen when an officer is accused.

This concept could be taken further in the Act by empowering IPID to make disciplinary recommendations against police officials who failed in their duties to take disciplinary action. If a senior officer assigned to investigate or lead evidence in a particular case knows that neglect in these duties might lead to disciplinary action against them, then here may well be an improvement in the efficacy and integrity of such proceedings.

Police must initiate disciplinary proceedings irrespective of IPID

A proposed amendment to the Bill is that “police only initiate disciplinary proceedings” upon receipt of a completed investigation report from IPID. The danger of such an amendment cannot be overstated. It would oblige police supervisors to take no action against their subordinates, no matter how serious the criminal accusations against them.

In place of this proposed amendment, a clause confirming police management’s responsibility to initiate internal investigations concurrent with referring cases to IPID is needed.

As the ISS proposed, the law may also empower IPID to request that SAPS suspend its disciplinary investigation, pending the outcome of its investigation, if it deems this necessary.

It would be sensible for IPID’s monitoring powers to be extended to such cases as well. At a minimum, this monitoring role will allow IPID to detect and intervene in the most ham-fisted attempts at cover-up and failures by police disciplinary officials. At best, it would see these officials regulate themselves, in the knowledge that they could be subject to charges themselves.

A criticism might be that concurrent IPID and police disciplinary investigations into the same allegation of misconduct would be duplication. However such duplication is quite common when misconduct allegations have both criminal and departmental implications. For example, a school teacher accused of sexual misconduct might well be subjected to concurrent criminal and departmental investigations.

The act should encourage cooperation between IPID and the police so that files upon which disciplinary hearings might follow are as complete as possible.

Police leadership shortfall cannot be fixed by law changes alone

Changes to the law governing police oversight in South Africa can only go so far. Viewfinder’s investigations and the ISS’s research on the misuse of force and failure of accountability within the police have made it clear that committed police leadership is a crucial ingredient for improving discipline within the service.

Police management must share responsibility with the watchdog agency for ensuring high standards of conduct. Internationally it is unheard of for an external watchdog to ensure proper police conduct by single-handedly investigating cases against the police. Where high standards of police conduct are maintained, this always depends largely on the commitment of police leadership to these standards. While IPID can play a complementary role, if we want policing that conforms to high standards, it is above all police leadership that must be responsible and accountable for this.

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Daneel Knoetze is the editor of Viewfinder. His investigation of police brutality and the failures of IPID and the police’s disciplinary system won the Global Shining Light Award in September.

David Bruce is an independent researcher and consultant to the Institute for Security Studies.

Views expressed are not necessarily GroundUp’s.

Published originally on Groundup | Daneel Knoetze and David Bruce