The African National Congress (ANC) and Economic Freedom Fighters (EFF) have rammed through a provision in the Independent Police Investigative Directorate (IPID) Amendment Bill that would strengthen the police minister's hand in the appointment of IPID's executive director (ED) at the cost of stronger parliamentary oversight.

On Wednesday, the Portfolio Committee on Police deliberated clause by clause on the bill, which Police Minister Bheki Cele introduced to Parliament in late August, despite the state law advisor declaring the bill does not pass constitutional muster.

The Cabinet approved the bill, nonetheless.

The new bill follows a 2016 Constitutional Court ruling requiring a legislative amendment to give IPID greater institutional independence to curb political interference.

In 2015, then-police minister Nathi Nhleko suspended then-IPID executive director Robert McBride.

McBride resorted to the courts, which culminated in the Constitutional Court overturning his suspension and declaring some provisions of the IPID Act "invalid to the extent that they authorise the minister of police to suspend, take any disciplinary steps pursuant to suspension, or remove from office the executive director of the Independent Police Investigative Directorate".

The court further held "without adequate independence, it would be easy for the minister to usurp the power of the executive director under the guise of exercising political accountability or oversight over IPID".

The court ordered Parliament to "cure the defects" in the legislation.

A bill providing for the removal of an IPID executive director was enacted in 2020.

The bill currently before the committee provides for the appointment of the executive director.

The IPID Act, as it stands, requires Parliament to confirm or reject the police minister's recommendation to fill the post of IPID executive director.

This provision has now been removed from the unconstitutional bill that Cele introduced and would allow the police minister to appoint the executive head and they then simply must inform Parliament of his decision.

This is why the state law advisor found the bill is unconstitutional.

Despite opposition MPs' remonstrations, the ANC contingent on the committee decided to forge ahead with processing the unconstitutional bill after Deputy Police Minister Cassel Mathale said the bill being unconstitutional was not reason enough not to proceed with its processing.

Since then, the offending provision has been replaced by the provision in the principal bill - that the police minister's nomination must be confirmed or rejected by Parliament.

However, at a previous meeting, Democratic Alliance (DA) MP Andrew Whitfield proposed the Portfolio Committee on Police should appoint the panel selecting the candidate with the police minister.

On Wednesday, the committee received a briefing from the Civilian Secretariat for Police, that reports to Cele, shooting down this proposal.

"The proposal to provide for a panel appointed by the Portfolio Committee on Police to identify suitably qualified candidates for appointment as the executive director is not supported.

"This proposal goes against the protocols provided for in the government regulatory framework on the appointment of the heads of national departments," read the secretariat's briefing, presented by its chief director for legislation, advocate Dawn Bell.

"The role for such an appointment is within the purview of an executive authority [the minister] which differs from the appointments of persons of Chapter 9 institutions."

It further stated the bill had been reviewed to provide for a panel to assist the minister, which would be appointed by the minister. 

"This is consistent with the protocols provided for in the regulatory framework for appointments of heads of national departments," stated the secretariat.

Whitfield said he noted the secretariat's views and by reinstating the existing provision that Parliament must accept or reject the minister's recommendation, they were doing the bare minimum:

I argue that we are doing the very bare minimum, because the intention and the sentiment of the judgment expresses the importance of securing the independence of IPID.

"I believe that Parliament does have a role to play, and I don't believe there is any legislative impediment for Parliament to play a greater role in this appointment process," he added.

Whitfield proposed as a compromise the bill could provide for Parliament to propose what kind of people would serve on the panel.

"To exclude Parliament at this stage, to me, is problematic," he said.

Whitfield noted the panel appointed by Cele when he nominated Jennifer Ntlatseng as ED in 2021 was constituted by two Cabinet members - Stella Ndabeni-Abrahams and Ronald Lamola - his deputy, Mathale, and one civilian.

"I believe that does not sufficiently insulate the process," he said.

ANC and EFF MPs did not share his concerns.

ANC MP Patricia Peacock proposed the committee should "accept the recommendation given here" by the secretariat.

"To me, chairperson, I believe the reason we have a minister, we have given the minister the power that he has," she said.

"And I believe that, because we have entrusted the minister on the position, we are also entrusting him of taking such decision of appointing the panel as well as dealing with his work, of which, when we say that we should be involved in that, how are we going to be involved in that?

"Because according to my understanding, that also means that the person to be appointed also needs to be evaluated ... needs to be assessed.

"So, as I'm sitting here, I'm agreeing with what is presented."

According to EFF MP Virgill Gericke, who was sworn in as MP last month, the EFF had previously said "we cannot abdicate the authority of the minister".

He added the minister must have the authority, because the minister would inevitably have to work with the ED.

Gericke said the minister must appoint the panel.

"The minister is the political head of this organisation and therefore we must trust his bona fides and give him the authority to move on."

"The entire committee must then defend the position of the minister," he added.

ANC MP Asnath Molekwa said: "I want to agree with Honourable Peacock's proposal that we must accept the proposal as is."

She added Whitfield's proposal would "prolong the process".

They did not sway Whitfield.

"I have a fundamental problem with the minister having unilateral powers to appoint and to determine procedure," he said.

"I believe we should prescribe how the panel should be constituted, so that the minister's powers, while he maintains the right to appoint, are curtailed by the legislation which insulates IPID's independence."

The secretariat stuck to its guns, and a parliamentary legal advisor said there was nothing preventing the committee from setting out the criteria the police minister must use in appointing the panel.

Committee chairperson ANC MP Nocks Seabi then gave Cele an opportunity to have his say.

"I would not agree with a prescription with who you put in [the panel]," Cele said.

Seabi added it seemed there were general agreements the minister would appoint the panel, where there was no agreement as to whether Parliament should set out the criteria for who could serve on the panel.

"I'm trying to resist to resolve this issue through a vote, but if I'm pushed to, I will do that."

"I'm trying to be as reasonable as possible," he said.

Seabi gave the secretariat time to formulate a response, while the committee continued with its work.

Before the end of the meeting, the committee returned to the issue.

Bell said the secretariat submitted Parliament setting out the criteria would "offend the legal framework with respect to the appointment of the head of the national department as enunciated by the Public Service Act, the Public Service Regulations and the executive protocol for such appointments".

She added the provision, as it appeared in the bill, was "consistent with the government procedures".

"In this instance, the appointment if the ED is adequately insulated against political interference as pronounced in the ConCourt in the McBride matter.

"The proposal to expand the panel is therefore not supported," said Bell.

Whitfield added he noted their feedback, but it was irrelevant; the secretariat reported to the minister, while it was Parliament's job to legislate.

"The deliberate exclusion of this section, that gives provision for parliamentary oversight, in the original draft of this, was a failure of the Civilian Secretariat, and the Cabinet, and the minister, to send us an unconstitutional bill and it demonstrates the intent, which is to undermine Parliament, to not take Parliament's role seriously, and now trying to rectify it by allowing Parliament to do so," he said.

"We've been shown exactly what the minister and Cabinet think of Parliament's role.

"We have inserted the bare minimum back into the bill, which is in the principal act.

"And I believe that the bare minimum is insufficient now that we know that the very clear intent is simply to use Parliament as a rubberstamp as it was in the previous process."

The ANC MPs stuck to their previous position.

As did the EFF's Gericke, who said: "We are also in agreement you cannot just upfront taint the reputation of the minister or his executive or vilify the minister in the role he has to play, you cannot show prejudice and bias to surmise that the minister will appoint cronies and so on. You cannot do that."

Seabi added it "seems the majority of members support the view as presented by the secretariat".

"For now, there is sufficient consensus that goes along with what was presented by the secretariat."

The committee will adopt the bill's A-list - the list of all the amendments on which the committee agreed - at a future meeting.