Gaps in appointment process for SAPS commissioner

By Johan Burger

It is unclear how long the current national commissioner of the South African Police Service (SAPS), Riah Phiyega, will remain in her position, but she is under immense public pressure to step down as she is about to face a board of inquiry.

The final report of the Marikana Commission of Inquiry recommended that this board be instituted ‘to inquire into [her] fitness to remain in [her] post and whether [she] is guilty of misconduct in attempting to mislead the commission.’

On 26 June, it was reported that President Zuma wrote to Phiyega requesting her to respond by “no later than 31 July” to the findings and recommendations contained in the commission’s report.

Phiyega’s predicament appears to follow an undesirable pattern which started with former national commissioner Jackie Selebi, who was eventually convicted for corruption in 2009. He was replaced by Bheki Cele; also a civilian with very limited background in policing. Cele was dismissed less than three years later after a board of inquiry in 2012 found him unfit for the position. Rather than learn from these experiences, the president appointed Phiyega in June 2012.

Riah Phiyega has no police background and insufficient managerial experience, making her unsuitable for the post she has held for the past three years, say experts. Image: Corruption Watch.

Like her predecessors, she lacks adequate management experience and has no policing knowledge or background. In addition to these shortcomings, the Marikana Commission has further revealed that she profoundly lacks integrity. It is not too surprising, therefore, that during her three years in office we have witnessed a decline in police officer morale as well as public trust in the SAPS.

Integrity is a fundamental necessity for police commanders to be effective. A study published in 2013 found that three of the seven key characteristics that are essential for effective police leadership relate to integrity. These include that a police leader must be ethical, trustworthy and legitimate. Being ethical was stressed as an important quality, since it speaks to the person’s moral fibre and their commitment to honesty. A dishonest police leader will not inspire trust, and will not be seen as legitimate by either the public or, internally, by other police officers.

The three commissioners of the Marikana Inquiry, along with the six advocates who served as evidence leaders, found that Phiyega gave untruthful evidence and oversaw the SAPS’ withholding and constructing of false evidence, which was aimed to mislead the commission. It is therefore highly unlikely that any board of inquiry could find her suitable to hold the post of SAPS national commissioner. Indeed, if the national police commissioner disregards her constitutional obligations and the SAPS Code of Ethics, how can she expect anyone below her to do so?

Appointment process needs urgent attention

How the post of the SAPS national commissioner should be filled in the future should be given urgent consideration. Why are unsuitable candidates repeatedly appointed? We could speculate about the answer to this question at length, but moving forward, steps must urgently be taken to ensure this does not happen again.

A good starting point would be to ensure that the SAPS Act identifies clear criteria for appointing the SAPS national commissioner. Currently, section six of the act states only that ‘there shall be a national commissioner of the Service who shall be appointed in accordance with section 207(1) of the Constitution’. Section 207(1) simply provides for the appointment, by the president, of ‘a woman or a man as the national commissioner of the police service, to control and manage the police service.’

No clear criteria for the candidate

The lack of formal criteria or requirements is in stark contrast with other leadership positions within the criminal justice system. Appointing the national director of public prosecutions, for example, must follow exact requirements, which are contained in Section 9 of the National Prosecuting Authority Act.

It states that he or she must ‘possess legal qualifications that would entitle him or her to practice in all courts in the Republic’ and ‘be a fit and proper person with due regard to his or her experience, conscientiousness and integrity.’

Similarly, there are clear criteria for appointing the national head of the Directorate for Priority Crime Investigation, or the Hawks. Section 17 of the SAPS Amendment Act of 2012 stipulates that he or she must be ‘a fit and proper person with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.’

For the other three structures within the Department of Police – the Civilian Secretariat for Police (CSP), the Independent Police Investigative Directorate (IPID), and the Private Security Industry Regulatory Authority (PSIRA) – there are also formal requirements that must be met when the head is appointed.

The CSP Act requires that the secretary be ‘a fit and proper person with appropriate knowledge, experience or qualifications,’ while the IPID Act requires the nomination by the minister of ‘a suitably qualified person’, and, in addition, calls for the nomination to be confirmed by the relevant Parliamentary committee. According to the PSIRA Act, the council for the authority – including its chairperson – will be disqualified for membership if such candidate ‘is not a fit and proper person’.

The absence of similar formal and appropriate requirements for the appointment of a person as national police commissioner is a serious flaw in the current SAPS Act. The National Development Plan (NDP) recognises that the ‘serial crises of top management’ in the SAPS are largely connected to bad appointments at this level. It therefore recommends that the national and deputy national commissioners are appointed by the president only once a selection panel has offered recommendations.

Although it does not elaborate on the panel or its composition, the NDP makes it clear that it would be the panel’s responsibility to select and interview candidates against ‘objective criteria,’ following a transparent and competitive recruitment process. These criteria are to be developed by a National Policing Board with multi-sectoral and multi-disciplinary expertise, and it is possible that this board would also be responsible for putting together the envisaged selection panel.

The crises of leadership in the SAPS have contributed to the severe deterioration in public safety over the past three years. All forms of violent robberies have increased substantially since 2012, resulting in four more murders on average every day. The SAPS has the skills, expertise, technology and other resources to effectively combat such crimes, but what it sorely lacks is effective leadership. Addressing this shortcoming must include developing a clear set of criteria to ensure the right person is chosen for the most powerful position in the SAPS.

• Burger is a senior researcher in the governance, crime and justice division at the ISS, Pretoria.