Police Minister Nkosinathi Nhleko will not be the only person reflecting on the implications of the Constitutional Court’s finding yesterday that his suspension of and subsequent disciplinary action against Independent Police Investigative Directorate (Ipid) boss Robert McBride were “invalid and set aside”.
Helen Suzman Foundation director Francois Antonie said now that the Constitutional Court had found Nhleko had acted unlawfully, this would allow other cases to proceed.
“In terms of the finding, there are problems with the Ipid Act and the way it has been used opens the possibility for those other people to use this act to take their cases further,” Antonie noted.
Top of the list of “other people” are former head of Ipid investigations Matthews Sesoko and Innocent Khuba, former Ipid provincial head of Limpopo.
Khuba’s position has already been filled from inside Ipid while Sesoko’s position was advertised last week following his recent dismissal.
Sesoko, Khuba and McBride are accused of unlawfully altering a report into the alleged illegal rendition of Zimbabweans during November 2010 and January 2011.
Two reports into the rendition were apparently made, one allegedly unofficial due to its not being signed. It was the second report – signed by Seseko – that exonerated former national Hawks boss Lieutenant General Anwa Dramat and Gauteng Hawks head Major General Shadrack Sibiya for their involvement that upset Nhleko.
Dramat, Sibiya, and Hawks Colonel Leslie Maluleke have since appeared in court charged with the renditions.
Parliament must decide
The spotlight in the meantime now turns to the chair of the police parliamentary portfolio committee, Francois Beukman, and its independence.
It’s Beukman who will have to decide if McBride has a case to answer, and make his committee recommendation to parliament, to which the Constitutional Court has handed McBride’s fate.
“Given that the committee will be under a great deal of scrutiny now, we’ll see how the matter unfolds. As the amicus curiae in this matter, we are very pleased the law has finally been settled,” said Antonie.
A confident McBride said as soon as the 30 days were over, he would like to return to work and start stabilising Ipid.
“Also, I think it is important that there is a lesson that is learned, especially for the executive and particularly the minister, how not to govern, how not to interfere with an independent organisation; so I hope there are lessons learned about constitutionality in certain sectors of the executive,” said McBride.
“The court awarded costs to us all the way and that is taxpayers’ money, which was unnecessary and, at stages of this dispute, I’ve made myself available to the minister to explain anything he needed clarification on. He also declined that offer.”
However, it is unlikely McBride will be back in office by October.
Beukman said before the oversight body could start to consider reviving disciplinary action against McBride, the matter had to be formally referred to them by Nhleko and parliament.
“We also noted the decision that the disciplinary process must be restarted with the necessary parliamentary oversight. Since the matter will be referred by the minister of police and the National Assembly to parliament, we will await the outcome of those relevant processes,” he said.
“Parliament, and specifically the portfolio committee on police, will have to deal with the Ipid Act and the regulations’ rectification to ensure it complies with the constitution,” said Beukman.
“We have noted the Constitutional Court’s decision and order on the importance of Ipid’s independence. We are in concurrence.”
A hiding to nothing for Nhleko
Justice Lebotsang Bosielo said in the unanimous decision that the disputed section of the Ipid Act gave the minister “enormous political powers and control over the executive director of Ipid”.
“To my mind, this state of affairs creates room for the minister to invoke partisan political influence to appoint someone who is likely to pander to his whims or who is sympathetic to the minister’s political orientation. This might lead to Ipid becoming politicised and being manipulated,” said Bosielo, firing a warning shot across the bow of those who would dabble in Ipid’s independence.
“The manner in which the minister dealt with Mr McBride demonstrates, without doubt, how invasive the minister’s powers are,” Bosielo noted. The judge added Nhleko’s actions alone exacerbated the situation and destroyed public confidence in Ipid’s ability to do its job.
“Ipid must therefore not only be independent, but be seen to be so. Without enjoying the confidence of the public, Ipid will not be able to function efficiently, as the public might be disinclined or reluctant to report their cases to it.”
DA MP Zak Mbhele said the court’s ruling was a welcome development to strengthen and confirm the independence of Ipid and he was looking forward to the matter coming before parliament.
“Of course it goes without saying that this is now the third time that the police minister has landed himself in hot water in terms of unlawful [and invalid] decisions.”
The other two incidents involved, firstly, the highest court ruling that the initial suspension of Hawks head Anwa Dramat, was tantamount to Nhleko acting unlawfully.
Again his conduct was questioned in his “most notably embarrassing Nkandla report, which was the subject of a scathing indictment by the Constitutional Court and found to be borne of irrationality and set aside as unlawful,” said Mbhele.
“Today’s ruling on McBride’s suspension reaffirms that Minister Nhleko is not a fit and proper person to hold this position pursuant to section 96(2)(b) of the constitution.”
The section states members of the Cabinet may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.”