By ERNEST MABUZA
In a victory for suspended Independent Police Investigative Directorate head Robert McBride‚ the Constitutional Court yesterday found that the current provisions of the Ipid Act undermined the directorate’s constitutionally guaranteed independence.
It set aside the minister’s decision to suspend and take disciplinary action against McBride.
However‚ the order was suspended for 30 days so that the process could be restarted with the necessary parliamentary oversight.
The court ruled in an application for confirmation of an earlier order made by the High Court in Pretoria in December.
In that judgment‚ the court declared the provisions of the Ipid Act to be invalid because it allowed the minister of police to suspend and remove the Ipid head.
This did not adequately safeguard Ipid’s institutional independence‚ said Judge Fayeeza Kathree-Setiloane in December.
McBride was suspended in March last year on allegations that he had covered up the alleged involvement of Hawks officials in the unlawful renditions of four Zimbabweans during 2010 and 2011.
McBride denied the claims against him and challenged his suspension by the police minister.
McBride said the constitution did not allow Police Minister Nathi Nhleko to suspend or discipline him unilaterally without affording parliament any role in this process.
The high court agreed with McBride’s argument.
The court also set aside the minister’s decision to suspend McBride and take disciplinary steps against him.
In a unanimous judgment written by Acting Judge Lebotsang Bosielo‚ the court said since both parties were in amenable‚ the order setting aside the minister’s decision to suspend and take disciplinary action against McBride was suspended for 30 days so that the process of suspension can be restarted with the necessary political oversight.
“It gives the minister the power to remove the executive director of Ipid from his office without parliamentary oversight.
“This is antithetical to the entrenched independence of Ipid envisaged by the constitution as it is tantamount to impermissible political management of Ipid by the minister.”
Bosielo said without adequate independence‚ it would be easy for the police minister to take over the power of the executive director of Ipid under the guise of political accountability or oversight.
“In this case‚ acting unilaterally‚ the minister invoked the provisions of … the Public Service Act‚ placed Mr McBride on suspension and instituted disciplinary proceedings against him.
“Undoubtedly‚ such conduct has the potential to expose Ipid to constitutionally impermissible executive or political control. That action is not consonant with the notion of the operational autonomy of Ipid as an institution.”
Bosielo said the Ipid had extensive powers to investigate a variety of matters involving the police and complaints of assault‚ torture‚ rape‚ discharge of firearms‚ death while in police custody and as a result of police action.
He said the public had a direct interest in seeing these matters being vigorously pursued and properly investigated.
“It is therefore necessary to its credibility and the public confidence that it be not only independent but that it must also be seen to be independent to undertake this daunting task without any interference‚ actual or perceived‚ by the minister.”
McBride‚ who was present in court for the judgment‚ welcomed the judgment and said it confirmed the independence of Ipid.
“That principle has been established‚” McBride said.
He said he would now wait 30 days to see whether any steps will be taken against him. — BDlive
ConCourt rules in favour of McBride
In a victory for suspended Independent Police Investigative Directorate head Robert McBride‚ the Constitutional Court yesterday found that the current provisions of the Ipid Act undermined the directorate’s constitutionally guaranteed independence.
It set aside the minister’s decision to suspend and take disciplinary action against McBride.
However‚ the order was suspended for 30 days so that the process could be restarted with the necessary parliamentary oversight.
The court ruled in an application for confirmation of an earlier order made by the High Court in Pretoria in December.
In that judgment‚ the court declared the provisions of the Ipid Act to be invalid because it allowed the minister of police to suspend and remove the Ipid head.
This did not adequately safeguard Ipid’s institutional independence‚ said Judge Fayeeza Kathree-Setiloane in December.
McBride was suspended in March last year on allegations that he had covered up the alleged involvement of Hawks officials in the unlawful renditions of four Zimbabweans during 2010 and 2011.
McBride denied the claims against him and challenged his suspension by the police minister.
McBride said the constitution did not allow Police Minister Nathi Nhleko to suspend or discipline him unilaterally without affording parliament any role in this process.
The high court agreed with McBride’s argument.
The court also set aside the minister’s decision to suspend McBride and take disciplinary steps against him.
In a unanimous judgment written by Acting Judge Lebotsang Bosielo‚ the court said since both parties were in amenable‚ the order setting aside the minister’s decision to suspend and take disciplinary action against McBride was suspended for 30 days so that the process of suspension can be restarted with the necessary political oversight.
“It gives the minister the power to remove the executive director of Ipid from his office without parliamentary oversight.
“This is antithetical to the entrenched independence of Ipid envisaged by the constitution as it is tantamount to impermissible political management of Ipid by the minister.”
Bosielo said without adequate independence‚ it would be easy for the police minister to take over the power of the executive director of Ipid under the guise of political accountability or oversight.
“In this case‚ acting unilaterally‚ the minister invoked the provisions of … the Public Service Act‚ placed Mr McBride on suspension and instituted disciplinary proceedings against him.
“Undoubtedly‚ such conduct has the potential to expose Ipid to constitutionally impermissible executive or political control. That action is not consonant with the notion of the operational autonomy of Ipid as an institution.”
Bosielo said the Ipid had extensive powers to investigate a variety of matters involving the police and complaints of assault‚ torture‚ rape‚ discharge of firearms‚ death while in police custody and as a result of police action.
He said the public had a direct interest in seeing these matters being vigorously pursued and properly investigated.
“It is therefore necessary to its credibility and the public confidence that it be not only independent but that it must also be seen to be independent to undertake this daunting task without any interference‚ actual or perceived‚ by the minister.”
McBride‚ who was present in court for the judgment‚ welcomed the judgment and said it confirmed the independence of Ipid.
“That principle has been established‚” McBride said.
He said he would now wait 30 days to see whether any steps will be taken against him. — BDlive
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