Government by obduracy - Helen Zille

WCape Premier writes on Nathi Nhleko and Riah Phiyega's truculent response to the Khayelitsha commission's report

An anniversary we don’t want to be celebrating

On 25 August, it will be exactly a year since Judge Kate O’Regan and Advocate Vusi Pikoli handed me the 500-page report compiled, after months of hearings, which included both written submissions and testimony from over 100 witnesses, in the Commission of Inquiry into allegations of a breakdown in the relationship between the police and the community of Khayelitsha.

And this year is also the fourth “anniversary” of the complaints made to me, in terms of Section 206 of the Constitution, by five civil society organisations in Khayelitsha, requesting the investigation, following the necklacing of 78 people by vigilantes between April 2011 and April 2012, as the community complained they had lost confidence in the police to bring crime under control.

Yet to date, there has been no positive response from the only people that can ensure implementation of the Commission’s recommendations: the national Police Minister, Nathi Nhleko, and the national Police Commissioner, Riah Phiyega.

Far from facilitating the Province’s oversight role, as required under the Constitution, the Minister and Police Commissioner have done their utmost to prevent us from exercising it. 

After repeated failures to respond to correspondence requesting their comments on the community complaints, they sought to block the commission through the courts. Things did not improve even after a full bench of the Constitutional Court ruled that the Province was within its rights to establish the Commission, and that we had complied with all the requirements of “intergovernmental co-operation”.

Today Inside Government focuses on the enormous complexity of complying with the principle of “co-operative governance” as required by the constitution.  Co-operative governance is essential to achieve most outcomes, because the constitution divides most government mandates between the local, provincial and national government spheres.

If co-operation fails, either through deliberate stalling or sheer inefficiency, governance can grind to a halt, and it can takes years to resolve the impasse. That is why it took almost three years to set up the Commission (after spending millions fighting court cases) and a year waiting for a response from the only person constitutionally mandated to give the go-ahead for implementation, the National Minister, Nathi Nhleko. Perhaps he has had a few other matters, such as firepools, on his mind recently.

Be that as it may, the fact remains that his inaction – either caused by inefficiency or bad faith – has effectively blocked the operational changes required to improve policing for 1,5 million residents of Khayelitsha.

The only response we have had to the recommendations has come from General Phiyega, who dismissed virtually all the recommendations out of hand, and  again questions the mandate of the Commission – despite the fact that the Constitutional Court confirmed it.

In fact, we have made little progress in changing the situation on the ground because the SAPS cannot take instructions from the Province.  If it were not for the fact that several high-ranking police officers agree with the Commission’s recommendations and believe their implementation could improve policing, there would have been no change at all.

But we cannot rely on a few individuals’ arbitrary response.  What we need, is what the Commission recommended: a full Memorandum of Agreement (MOA) between the National Minister and his provincial counterpart, Dan Plato, to implement the recommendations operationally. Only this will have a real impact on the ground.

The Province even drafted the required MOA and sent it to Minister Nhleko in October last year, to facilitate progress. We have had no response to it, except a letter that showed Mr Nhleko’s office had confused the draft MOA with a “progress report” on the implementation of the Commission’s recommendations. We quickly wrote back to set the record straight and have heard nothing since.

Since the beginning of this saga, we have sought to make progress by writing 21 letters to the police authorities, including the National Minister, National Commissioner and Provincial Commissioner.

We have asked questions in Parliament.

We have sought the interventions through the Standing Committee on Community Safety.
We have had at least three meetings with various Ministers and high-ranking officials.

And we have repeatedly been sent “back to go”, not only as a result of court cases, but also when there was a “change of guard” at the top – first when Riah Phiyega replaced Bheki Cele as Commissioner and later when Nathi Nhleko replaced Nathi Mthethwa as Minister. 

Eventually I took the step that every minister dreads:  I submitted Minister Nhleko’s  “non-response to the recommendations of the Khayelitsha Commission” as an agenda item for the President’s Co-ordinating Council.  This is a forum that meets quarterly, bringing together President Zuma and the Premiers of the nine provinces. 

We put issues of national concern on the agenda, which are then discussed in the relevant Minister’s presence.  I intended to spell out in detail the extent of the unconstitutional and cynical unresponsiveness of the National Minister’s office to the Khayelitsha Commission.

That was the first time we saw a rapid reaction. The Minister wrote a letter to the Department of Co-operative Governance (that is responsible for convening the meeting) requesting the issue be removed from the agenda because “the National Commissioner’s Office has aligned the report with all stakeholders and a progress report on implementation of the findings is available”.

We have yet to see this “progress report on implementation”, but maybe he was again confusing our draft Memorandum of Agreement with a “progress report”.

We eventually received a provisional response from Commissioner Phiyega on 8 June 2015. It was anything but a “progress report”.  On the contrary, the 22-page document dismissed the basis for the establishment of the commission and effectively “rubbished” 15 out of the 20 recommendations.  It also concluded that the remainder was superfluous, because the desired outcome has already been effected.  Where things were not working, General Phiyega concluded, the City and the Province were to blame.

Presumably to prevent these absurdities being made public, General Phiyega also classified her reply as “strictly confidential”.  On 8 July 2015, I wrote a letter asking under which section of which law this document had been classified.  I also pointed out that the entire process of the Khayelitsha Commission had been open from start to finish, and that the Police Commissioner’s response could not remain confidential from the people of Khayelitsha, nor the NGOs that laid the complaint.

I set a deadline of 31 July to receive an answer to these questions, failing which I said I would make the document public. I arranged a press conference for 1 August.  That morning there was a call from the National Commissioner’s office, which revealed that there was yet another misunderstanding – they thought the press conference had been convened for the purpose of announcing the implementation of the Commission’s recommendations.

We explained that the Province had no constitutional powers to implement the recommendations operationally.  That is why we required a response from the National Minister. We also explained that we had called the press conference to address the “strictly confidential” classification of the response to the Commission’s recommendations. When a senior officer in the Ministry confirmed they had no response to our releasing it, we did.

But their rejection of the Commission’s recommendations still stands – which brings us no closer to a solution, despite the fact that the SAPS in the Province had been trying their best to implement some of the recommendations, in the absence of clear directives from their national Minister and national Commissioner.

This is a truly sorry saga, and shows that, in order for our constitutional checks and balances to work, they must be respected by all components of our complex intergovernmental relations system.  But, just as we have seen repeatedly, the national government shows contempt for every recommendation, court judgment or directive that it does not like, usually by simply ignoring it. Recent examples include the Public Protector’s Nkandla report, the Al-Bashir “escape”, and the response to the Khayelitsha Commission.

This abuse must be stopped so that our democracy can function as it should.

This article by Helen Zille first appeared in Inside Government, the online newsletter of the Premier of the Western Cape.