Premier Helen Zille has signed the Western Cape Community Safety Act into law. The national Minister of Police, Nathi Mthethwa has come out strongly against the Act and promised to challenge it in the Constitutional Court. The Minister's spokesperson, Zweli Mnisi is reported as saying that it "seeks to make the South African Police Service a provincial institution where accountability is determined by different structures as and when it is deemed suitable".
This goes to the hard of the division of powers between the national government and the provinces. The issue was hotly debated during the drafting of the Constitution. This was in a time when the violence of the early 90's, which had a distinct regional dimension, was fresh in everyone's memory. The ANC was vehemently opposed to any security powers being exercised at provincial or regional level.
It wanted the state's monopoly over the use of force centralised. Most of the other negotiating partners favoured stronger provincial powers or at least a greater spread of authority across levels of government. In the end, our Constitution established a national police service, based on national legislation, controlled by a national police commissioner and a national police minister.
However, it didn't make policing the exclusive domain of national government. Chapter 11 of the Constitution explicitly brings in provinces, not as governments that control or manage the police but as governments that oversee policing in their jurisdictions and that facilitate relations between the police and communities.
For example, the Constitution says that provinces may "monitor police conduct", "oversee the effectiveness and efficiency of the police service", "promote good relations between the police and the community" and "assess the effectiveness of visible policing". Provincial commissioners must send reports to provincial parliaments and provinces may investigate a breakdown in relations between police and community.
Premier Zille has used this power to establish the O'Regan and Pikoli Commission to investigate the breakdown in relations between the community of Khayelitsha and the policing structures there. Minister Mthethwa challenged this decision in the Western Cape High Court. The Court upheld the decision but the Minister has appealed to the Constitutional Court.
The initial draft of the Constitution did not provide for all these provincial powers. Most of them were inserted only after the Constitutional Court, which was tasked with certifying the draft Constitution, rebuked the drafters for diminishing provincial powers too much.
In the Western Cape Community Safety Act, the Western Cape Government is asserting this constitutional role for provinces. It is clearly an attempt on the part of the DA-led government to make it clear that it is serious about crime. The question is whether it has gone too far. Minister Nathi Mthethwa clearly thinks so and it may indeed not be comfortable for the Provincial Commissioner to have to report to the National Police Commissioner and to the MEC for Community Safety.
However, the Act does not establish a provincial police service. It actually gives the provincial government very limited decision making powers. It mandates the MEC to monitor the service delivered by the South African Policy Services, to collect information with respect to policing, make recommendations to the national Minister of Police and promote good relations between the police and communities. It is very clear that the Act will not permit the MEC to directly interfere in police operations.
It also doesn't give the provincial government any hard-hitting powers over the Provincial Police Commissioner. Media reports, suggesting that the Act will empower the provincial government to "fire" the provincial police commissioner are incorrect. The Act provides for a procedure that needs to be followed if the Provincial Cabinet has "lost confidence" in the Provincial Commissioner. The Provincial Commissioner must then first appear before the Provincial Parliament before the Provincial Cabinet may start proceedings for the dismissal of, transfer of or institution of disciplinary actions against a provincial commissioner.
There isn't much there that is new. Section 207(6) of the Constitution already makes provision for the Provincial Cabinet to institute such proceedings if it has "lost confidence" in the Provincial Commissioner. These proceedings, once initiated, are conducted in terms of national law and it is the National Police Commissioner, not the Provincial Cabinet nor Provincial Parliament, that decides. This is the only right approach.
The Constitution is very clear in that the National Police Commissioner must "control and manage the police service". This will not work if provinces can fire provincial commissioners from underneath the National Commissioner. The only area where the MEC has any ‘hard' decision making powers is with respect to the accreditation of neighbourhood watches and the issuing of directives to community police forums, issues that don't directly affect policing operations.
On the other hand, this Act will force the South African Police Service in the Western Cape to report regularly to the provincial government a variety of listed matters. For example, the Act instructs the Provincial Commissioner to regularly report to the MEC on issues such as the number of firearms lost or stolen, incidents where firepower was used, numbers of arrests and convictions, criminal and disciplinary cases against police officers and quite critically, crime statistics. Once this Act is in full operation, the Provincial Police Commissioner may not refuse to provide that kind information to the MEC.
The Western Cape Provincial government will thus become the repository of a very rich collection of information about the level and quality of service delivered by SAPS in the province. The Minister will probably argue that with this, the Province is crossing the line between constitutionally permissible oversight and meddling in issues beyond its authority. Whatever one makes of that argument, everyone knows that, in the game of politics, information is power.
It is therefore, understandable that the Minister is worried about how this information will be used because it will be collected, managed and disseminated by a government that is currently run by the official opposition to the ruling party at national level. Will the DA-led government use this information to press for better service delivery in the province or will it use the information to strengthen its hand as a national opposition? Whether there is prospect in the Minister's challenge is very hard to say.
The Constitutional Court is not likely to concern itself with the question as to how the power may be used. It will rather look at the text of the Constitution, which clearly provides for provincial oversight. However, a recent study, conducted by Professor Nico Steytler (the South African Research Chair on Multi-Level Government in the Community Law Centre) suggests that the Constitutional Court has not taken kindly to provinces pushing the envelope concerning their powers.
In most of the cases where provincial powers were pitted against national or municipal powers, the provinces lost out. This has lead Prof Steytler to conclude that the Constitutional Court has adopted a "parsimonious view of provincial powers". So while the text of the Constitution provides for provincial oversight, the Western Cape should consider itself warned that the trend in Constitutional Court judgments may very well be in favour of the Minister's equally parsimonious view of provincial power.
Prof Jaap de Visser is the Director of the Community Law Centre, University of the Western Cape, and senior research fellow in the Centre's Multi-Level Government Initiative.
About: The Community Law Centre
The Community Law Centre is founded on the belief that constitutional orders must promote good governance, socio-economic development and the protection of the rights of vulnerable and disadvantaged groups. Through engaged research, engaged teaching and advocacy, the Centre supports processes in South Africa and the region to build inclusive, resilient states that are accountable to citizens and responsive to human rights. The Centre aims to be the leading think tank on multi-level governance and human rights in Africa.
Click here to sign up to receive our free daily headline email newsletter
