UPDATE - 23 July 2014: Last year the South African Police Service revealed that a "protracted" and "thorough" audit of the police's ranks had found that 1,448 serving police officers were convicted criminals. Lieutenant-General Nkrumah Mazibuko - the acting deputy national commissioner for human resource management - told the country's parliament at the time that action would be taken within a year to clean out the police's ranks. Pressured by MPs for a timeframe, he offered a "temporary date" of June 2014 for the police's fitness boards to finish evaluating all the cases.
That hasn't happened. According to a report in the Afrikaans daily newspaper, Die Burger, South Africa's new police minister Nathi Nhleko said this week - in response to questions from the opposition Democratic Alliance - that all 1,448 police remain on active duty. According to Nhleko, the Labour Court ruled last month that the work of the fitness boards was illegal, invalid and without any legal force. This followed legal action by the police union Popcru.
The South African Police Service (SAPS) revealed recently that 1,448 serving police officers are convicted criminals, among them a major-general, ten brigadiers, 21 colonels, ten majors, 43 lieutenant-colonels, 163 captains, 84 lieutenants and 716 warrant officers. And it has hesitantly promised to rid the police of these “unwanted elements” by June 2014.
Is this, as the police implied, the extent of criminality in the police service? If true, it would mean that fewer than one percent of South Africa’s 157,470 police have been involved in criminal activity. Furthermore, is the commitment to rid the police of convicted criminals serious? If so, what is the evidence?
What the police say: 1,448 criminal cops
Lieutenant-General Nkrumah Mazibuko – the acting deputy national commissioner for human resource management – addressed a parliamentary committee earlier this month about the outcome of an internal audit of the police which cross-referenced the identity numbers and salary records of police with the national criminal records database.
National police minister Nathi Mthethwa described the audit which produced the figure as “protracted” and “thorough“. The 1,448 police it uncovered had all been convicted of “serious crimes” ranging from murder and attempted murder to rape, assault, corruption, theft, robbery, house-breaking, drug trafficking, domestic violence and aiding escapees. At least 64 of them are currently based at police headquarters.
A significant number of them had been convicted of multiple crimes committed between 1978 and 2009. As a result, the total number of convictions discovered by the audit stands at 3,204.
The audit looked at:
- Cases where convictions led to sentences of less than three years in prison;
- Convictions for “serious offences” like murder, attempted murder, rape, corruption and theft;
- Multiple convictions.
But how thorough was it in detecting the scale of the rot? Significantly the audit was based on information “received in January 2010”, the police admitted. Any criminal convictions after that date were not included although Mazibuko claimed the audit was “an ongoing process and annual feedback will be given in this regard”. And the audit did not take pending criminal cases into account.
When will they act? Within a year
Mazibuko claimed that a “board of fitness” had completed a “test case” and that the remaining 1,447 cases would be evaluated in batches of 150. He claimed various provincial boards of fitness would start work in “mid-August 2013”. And though he said police did not have a firm date when the boards could complete their work, under pressure from MPs he suggested a “temporary date” of June 2014.
Annelize van Wyk, the African National Congress MP chairing the committee, expressed concern that the deadline would ensure that criminals remain in the police’s service for another year and said she would write to the police minister requesting a firm date.
Certainly, evidence suggests little progress has been made. Interviewed by Africa Check, a police spokesperson admitted that as of last week only “one board has already sat and is considering a matter”.
National police spokesperson, Lieutenant-General Solomon Makgale explained that “employees cannot be dismissed summarily without following due process”. In cases where police had been before disciplinary panels and “management was lenient”, their findings cannot be summarily overturned “because of the double-jeopardy rule”.
Fitness boards would have to be convened “countrywide” in line with sections 34 and 36 of the SAPS Act to hear “representations as to why they [the convicted police officers] believe they remain fit to serve in the SAPS”. Makgale said “it is expected that this will be a rather lengthy process”.
What does recent history show?
South Africa’s police have been rocked by a series of crippling corruption scandals in recent years. In 2010, the national police commissioner, Jackie Selebi, was convicted of corruption and sentenced to 15 years in prison. He was later released on medical grounds after serving just 229 days of his sentence.
It was on Selebi’s orders that the police’s Anti-Corruption Unit (ACU) was shut down, just seven years after it had begun its work. Between 1996 – when it was established – and 2001, the unit received 20,779 allegations of police corruption. Between 1995 and 1999, an average of 1,320 police were convicted each year on criminal charges.
Crime researcher Andrew Faull stated in a paper evaluating the police’s response to corruption that “[s]ince disbanding the ACU in 2002, the SAPS has struggled to settle on and implement an anti-corruption strategy. Numerous indicators suggest a lack of political will on the part of the SAPS and government as a whole in taking steps to counter police corruption”.
According to one study, the closure of the ACU “was a step backwards for the SAPS in terms of combating corruption and resulted in a reduction in the numbers of arrests and convictions of police officials involved in corruption”.
Police ‘not being held accountable’
The scandals continued after Selebi. His successor, Bheki Cele, was suspended and eventually fired by President Jacob Zuma in 2012 over allegations of unlawful property deals. He has not been charged with a crime.
Gareth Newham, head of the governance, crime and justice division at South Africa’s Institute for Security Studies, argues that there is strong evidence that “most police officers involved in criminality are not being held accountable” and therefore that the numbers of police who are involved and have been implicated in crime are far higher than the 1,448 figure.
Between 1998 and 2012, at least 21,785 criminal cases involving police officers were reported to South Africa’s Independent Complaints Directorate (ICD), a civilian oversight structure recently re-named the Independent Police Investigative Directorate (IPID). This excludes cases involving deaths in police custody, or as a result of police action, and cases of misconduct.
According to the ICD’s annual reports, more than 2,000 serious criminal cases involving police were reported to it every year since 2007.
In the 2011/2012 financial year, for instance, it received 2,320 new criminal cases to investigate and closed 1,176 including cases that had been carried over from the previous year. Only 204, or just over 17%, of the 1,176 cases, could be “substantiated”. Eighty cases were withdrawn and 892 were found to be “unsubstantiated”.
Guarded by a ‘watchdog with no teeth’
Critics have long argued that the ICD, now the IPID, is a watchdog without teeth; understaffed, underfunded and routinely ignored and stymied by the police it is meant to investigate.
This impacts on its ability to ensure that police implicated in crimes are properly investigated and prosecuted, says Newham. “It does not have adequate resources or skills to ensure that it is able to gather sufficient evidence to support successful prosecutions of police officers accused of crimes.”
If it did, it is likely the number of prosecutions and convictions would be far higher.
The IPID has not had a permanent head since August of 2012. “This undermines management capacity and hinders the extent to which the organisation can overcome the various challenges it faces,” argues Newham. “Interviews have been held with people who could do a great job of managing the IPID, but for some reason the minister of police has decided not to appoint anyone. This is strange, unless there is no political appetite for having a well run and strong IPID as it will further expose the extent of criminality within the SAPS – something that won’t assist the ruling party in the run-up to next years elections.”
A 2007 ICD research report, which focussed on deaths as a result of police action, summed up some of the difficulties faced by ICD investigators. In interviews with the researchers, ICD provincial heads and investigators in three provinces said crime scenes where suspects had been shot by police were often tampered with and evidence removed or planted by the police involved or their colleagues. In many instances police refused to give statements to ICD investigators and when statements were given they would “either lie or give a complicated statement that does not make sense…with the deliberate aim to protect colleagues”.
The ICD’s 2007/2008 annual report states: “Until such time that there is an amendment to the legislation, SAPS management will continue to ignore our recommendations which is why the ICD is viewed as ‘toothless’…As matters stand SAPS management are under no obligation to report back on their decision regarding our recommendations…The ICD need strong legislative muscle to enforce its recommendations.”
The so-called “Cato Manor death squad case” has shone a spotlight on some of the ICD investigations. According to reports in South Africa’s Sunday Times newspaper scores of people were “executed” by members of a police organised crime unit based at Cato Manor in Durban.
Example of an ‘unsubstantiated’ case
In one such shooting, which occurred in 2008, a taxi company owner and his bodyguard were gunned down next to the N3 highway near Howick in Kwazulu-Natal province. Police reportedly “fabricated claims of a shoot-out” and at the scene ICD investigators found “high-calibre firearms that were allegedly used by suspects to attack police”.
“There were no witnesses to refute the police version, so the shooting was deemed justified until new evidence comes to light,” an ICD investigator found, according to a report in City Press newspaper. The case, as with several others involving the Cato Manor unit, was closed and recorded as “unsubstantiated”. It was only re-opened following the Sunday Times revelations in December 2011.
More recently in the ICD’s 2011/2012 annual report, deputy police minister Makhotso Sotyu acknowledged the “challenges” experienced by the ICD. These included the “late or non-reporting” of deaths involving police and crimes involving police, the lack of co-operation received by ICD investigators when staging identification parades, the failure of the police to implement the ICD’s recommendations and “a lack of feedback from SAPS in that regard”.
In the same report, police minister Nathi Mthethwa, also conceded: “Historically there have been problems with the ICD having investigative powers and then having to submit their recommendations to the national commissioner of police. The ICD has no powers to ensure the implementation of its recommendations.”
The IPID Act which came into effect in April 2012 is meant to change that and shift directorate’s focus from processing complaints to developing a strong and proactive investigative capability. In future it will report directly to the police ministry and not the national police commissioner. Its mandate has also broadened to include “more serious and priority crimes” committed by police.
Data suggests police criminality is worse than admitted
Newham says there is an urgent need for “strong and effective” civilian oversight of the police. He cites the following concerns which suggest that the level of criminality is far higher than demonstrated by the police’s internal audit:
- The ICD investigated 720 deaths involving police in the 2011/2012 financial year. It found evidence of criminality in 162 cases (22%).
- In 2011/2012, police charged 1,050 of their members with corruption, fraud, aiding escapees, defeating the ends of justice, extortion and bribery. According to the police annual report, only 88 of those police were suspended pending the outcome of investigations. Police also investigated 1,286 cases of corruption involving their members.
- According to a South African social attitude survey published in 2011 by the Human Sciences Research Council, about 66% of the adult population of South Africa believe that corruption is a widespread problem in the police and only 41% have some level of trust in the police.
- The police are facing more than R14.8-billion in civil claims arising from cases of assault, accidents, shootings and damage to property.
- A survey conducted by futurefact in 2012 found that 35% of South Africans interviewed admitted to being “scared of the police”. In poorer communities this increased to 40%.
Recruitment process a problem
There are of course many reasons for problems in the police service. One that many point to is the “en masse recruitment” drive implemented since 2002. By 2012, the number of serving police had increased by more than 65%. But as Cele explained in 2010, the rush of new recruits meant that police had sacrificed quality for quantity. “We have not been big on quality, we have been big on quantity,” he reportedly told a parliamentary committee.
In his recent presentation, Mazibuko said recruits had found ways to bypass reference checks and fingerprinting. He said there were cases where recruits with criminal records had used other people to substitute for them during the fingerprinting process.
The police’s 2013/2014 performance plan provides another telling number. It is a line on page 45 which lists criminal conduct by police as a “strategic priority”. The document indicates that as of 31 March 2013, there were 8,846 criminal charges pending against police. Police management, it states, aim to reduce that figure by just 5% by the end of the financial year.
Africa Check asked Makgale, the police spokesman, for a breakdown of the 8,846 charges. He had not responded at the time of publishing, but we will include his response if he does.
Conclusion – The record suggests police crime higher than police admit
The disclosure that 1,448 police have criminal records does not reflect the full extent of criminality within the service. The figure is based on data that is nearly four years old and does not include subsequent convictions or pending cases. It also only covers “serious crimes” and not all convictions. Furthermore, the police’s own annual performance plan for 2013/2014 suggests that more than 8,400 criminal charges are currently pending against police officers.
Against this, we have the evidence of the ICD, now IPID, which receives more than 2000 complaints a year and in the 14 years between 1998 and 2012 looked at 21,785 cases. Police have conceded that the ICD’s recommendations were often ignored and ICD investigators have stated that police regularly tampered with evidence during ICD investigations. In the last financial year alone, police charged 1,050 cops with corruption, fraud, aiding escapees, defeating the ends of justice, extortion and bribery. They investigated 1,286 cases of police corruption.
As Newham states, “most police officers involved in criminality are not being held accountable”. They will never be arrested, tried or convicted. The lack of proper internal anti-corruption structures in the police and the limited resources available to the ICD, and now the IPID, mean that many criminals in police uniform escape the net without a trace. They would certainly not be detected by an audit of criminal convictions.
So the evidence suggests the level of criminal activity involving police, and the number of police with criminal convictions, is higher than admitted to date. But are the police at least serious about tackling the problem by the deadline given? Given that police fitness boards, which were meant to begin working this month, have yet to be established and that only one case has been evaluated to date, it seems highly unlikely that the task of reviewing each of the 1,448 cases will be completed by June next year as Mazibuko suggested.
Edited by Peter Cunliffe-Jones
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