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Apartheid-style White Paper on Policing is unconstitutional
Joint Media Release by:
Western Cape Minister of Community Safety, Dan Plato,
City of Cape Town Executive Mayor, Patricia De Lille,
City of Cape Town Mayoral Committee Member: Safety and Security, Alderman JP Smith
The Civilian secretariat for Police has circulated a White Paper on Policing and requested comments from all spheres of government. Comments and input from both local and provincial government have in large part been ignored.
White Papers pave the way for legislation. For this reason, we would like to publically place on record our objections to the impact that aspects of the policing white paper will have on our spheres of government.
In particular, we believe that a centralized force is a replica of apartheid policing forces. As it stand the White Paper proposes that metro police be absorbed into SAPS. Policing should in fact be more decentralized, and the Metro Police System should be allowed to operate where it is in working order. We will challenge the Constitutionality of this step should it become an Act of Parliament.
The Western Cape Government is of the strong opinion that, apart from the major problems identified around the integration of Metro Police into the SAPS, the White Paper on Policing further falls short on:
The oversight mandate of Provincial Governments;
Specialised Policing; and
The role of Neighbourhood Watches;
Provincial Oversight
It is essential that detailed reference to the Constitutional role of oversight by Provincial Governments should be included in the White Paper on Police. Although reference is made on various occasions to the nature and importance of oversight over the police; nowhere is expression given to the provisions of Section 206(3) and 206 (5) of the National Constitution. These sections entitle provinces to do oversight over the police.
The Western Cape Government's comments on the Draft White Paper on Police reflected our concerns that our constitutional oversight role is not emphasized, and is actually undermined in the policy. The line stating that province's should perform oversight "in conjunction with the Minister of Police", should be removed as it is incorrect.
The Constitutional Court in October 2013 unanimously upheld the oversight powers, functions and duties of provincial government in the matter Minister of Police and others versus the Premier of the Western Cape and others.
In that judgment all 11 Constitutional Court Judges rejected the the Minister of Police's argument that provincial oversight, as envisaged in the Constitution, must be performed through national structures, particularly the National Secretariat of Police.
The Constitutional court made it very clear that the National Minister may not curtail the powers of provinces to conduct oversight over policing in that province. Sadly, the draft White Paper is yet another example of how National Government is increasingly ignoring the important principles of our Constitution.
Specialised Policing
Since 2011 the Western Cape Government has advocated for the reinstatement of specialised gang and drug units to effectively deal with the scourge of gangs and drugs in the province.
We welcomed the President Jacob Zuma announcement earlier this year that the specialised gun and drug units will be established. If followed through, this would be a step in the right direction in combating crimes which are wreaking havoc in our communities.
The President's announcement followed a similar commitment by Police Minister Nathi Nhleko last year. The Minister later flip-flopped on his promise, stating that there is no intention to reintroduce any additional specialised units.
Our recommendations on this section of the Draft White Paper, were that the NDP's focus on the need for specialised units be front and centre of any new policy. We specifically require properly resourced specialised units focusing on addressing gang and drug crimes.
Role of Neighbourhood Watches
We know that if we want to succeed in the battle against crime, then there has to be a healthy relationship between communities, police and government institutions.
The White Paper on Police is silent on the important role active citizenship can play in creating safer environments, through effective Neighbourhood Watches.
NHW are not currently provided for in any National or Provincial Law. They exist because they are necessary, and because thousands of people want to contribute to the safety of their communities.
In the Western Cape, the Community Safety Act published in 2013, aims to build Neighbourhood Watch structures as capable partners within communities. For the first time neighbourhood watches will be regulated by legislation and given a prominent place in the policing and safety environment.
The Western Cape Community Safety Act provides for the voluntary accreditation of neighbourhood watches. After accreditation, the neighbourhood watches may be assisted by the Department of Community Safety through funding, training and other resources.
Our comments on the Draft White Paper on Policing made it clear that street committees, as mentioned in the Draft White Paper, are not to replace the role of Neighbourhood Watches.
As the Western Cape Government, we remain opposed to short-sighted policing policy changes which could in practice lead to even worse policing service delivery.
A Single Police Force
The White paper seeks to take the Metro Police Service away from the City, and place them under the control of the South African Police Service.
We believe that this centralized force is a replica of apartheid policing forces. Policing should in fact be more decentralized, and the Metro Police System should be allowed to operate where it is in working order.
Our Constitution specifically provides for a municipal police service in its section 206(7) which states that:
"National legislation must provide a framework for the establishment, powers, functions and control of municipal police services."
We shall, as the City of Cape Town, vigorously defend that Constitutional entitlement. Should Minister Nathi Nhleko continue to bulldoze these policy decisions until they become an act of Parliament, we will go to court to challenge their constitutionality.
The White Paper sets out three reasons for the creation of this single police force. The first is that the limited resources in our country don't allow for "the huge duplication of functions".
This is a misnomer because City of Cape Town law enforcement services regularly conduct joint operations with the South African Police Services. We also attend to different areas of delivery because we are in a position to relieve SAPS in areas where they may be overburdened. We can easily deploy our forces to attend to blindspots.
We have placed great emphasis on social crime prevention, where the focus is community orientated policing and therefore working with local communities to find solutions and empowering them to become crime fighters.
This ranges from providing more lighting in areas which are dark and therefore prone to muggings, to trimming trees to improve visibility. We have been able to use our mandate holistically to curb crime, to support the efforts of the SAPS.
We have found a way to seamlessly integrate the efforts of our Gang and Drug Task Team, with that of Operation Combat.
We enjoy good relationships with the Provincial Commissioner in the Western Cape, who has also commended our work and thanked us for our commitment to working together with the SAPS.
Secondly, the current decentralisation of police forces is said by the White Paper to affect the "standard of training". The City of Cape Town law enforcement agencies currently conform to all national norms and standards. If new standards are introduced, then compliance by other metros should be enforced. What the White Paper suggests is to punish those metros who do comply, because of those who don't.
The White Paper's third motivation for a centralised police force is the supposed "artificial boundaries and barriers between police forces". The Paper says this complicates jurisdiction when criminals are on the move.
While the White Paper focuses on the movement of criminals, we have over the last 10 years found innovative ways in which to address the safety needs of our residents. These include the following:
A Gang and Drug Task Team (GDTT) with over 100 officers focusing on getting drugs and guns off the street in autonomous operations and joint operations with SAPS.
School Resource Officers (SRO) which comprises 36 law enforcement staff protecting schools every day ensuring that learners are safe and have the chance to be all they can be.
Stabilisation Unit which comprises 90 officers deployed in gang hotspots to prevent violence and hold gangsters accountable.
A Special Investigations Unit which is a dedicated unit with 12 investigators gathering information and targeting gang and drug enforcement efforts.
Neighbourhood Safety Officers (NSOs) which are 17 officers deployed in their specific communities where they work every day to build partnerships with the community and to drive policing.
More than 9000 Neighbourhood Watch members following a 9000 Neighbourhood Watch members following a R 5.3 million investment into empowering and equipping community members to take back their streets.
A Housing Unit with 48 Housing Unit officers who are being appointed to undertake enforcement and protection around the 44 000 rental units of the City to make them safer and improve the quality of life of the City's tenants.
The White Paper recommends that all law enforcement services should be limited to traffic and by-law enforcement, which would mean the disbandment of all our units and initiatives.
With local government being at the coalface of delivery, we have prioritized building a Safe City and empowering staff to respond directly to the safety concerns of our residents. A single police force only serves to increase bureaucracy and delay the speed at which the metro police can respond to urgent community needs. It will undo the progress that we have made possible thus far.
The single police service will only centralise control, and disempower Metro Police to respond to the needs of citizens. It will disempower both the City of Cape Town and its residents from holding Metro Police accountable.
We cannot and should not allow this "one-size-fits all" crime reduction strategy, as proposed in the White Paper. Our Metro police are far better positioned to respond to crime at a local community level, and their excellent results are evident.
We will be getting ready to mobilize public opinion for the impending public participation process which is the next process in the progress of the White paper.
We will also seek legal opinions from both the City of Cape Town and Western Cape Government regarding the severe impact on our respective mandates, and overall encroachment on the powers and functions of the different spheres of government.
We will not allow our Constitutional mandates to be trampled on. If the amended Bill becomes an act of Parliament by the President, we will see no other choice but to challenge its constitutionality.
Ewald Botha
Spokesperson to Minister Dan Plato
Pierrinne Leukes
Spokesperson for the Executive Mayor – Patricia De Lille,
City of Cape Town