Ramaphosa’s pork pies on police devolution

President Cyril Ramaphosa recently told Parliament the Constitution does not, barring amendment, make provision for the devolution of policing powers to provincial authorities – but he’s being called out on this. Martin van Staden opines in the piece below, first published on the Daily Friend, that the Constitution not only provides for devolution of the police, it requires it where practical. Van Staden spells out, in some detail, what the Constitution says – noting the fact that devolution of policing powers to metros, for example, that created entities like the JMPD or TMPD, is already a thing in this country. This shouldn’t be about reinventing the wheel. Van Staden remarks: “How he [Ramaphosa] has not noted the presence of non-SAPS police officers throughout the country up to now is anyone’s guess. Policing power in South Africa has been partially devolved for many years without constitutional challenge.” He’s not alone in challenging the head of state on this. BizNews recently spoke to director of community safety at Action Society, Ian Cameron, who said outright the president is lying to the nation. Van Staden picks up on the point that Ramaphosa was a co-author on the 2002 textbook Constitutional Law: Analysis and Cases – this is by no means a layman delivering comment on the issue. Therein lies the problem…is Ramaphosa purposefully misleading the nation? If so, why? – Michael Appel

Devolved policing: Constitutional imperative or fantasy?

By Martin van Staden

On 26 September 2022, a number of organisations from civil society and politics formed the Western Cape Devolution Working Group. Comprising the Democratic Alliance (DA), Freedom Front Plus, African Christian Democratic Party, Cape Independence Party, AfriForum, Cape Independence Advocacy Group, Action Society, Cape Forum, and the South African Agricultural Initiative, the working group represents a diverse cross-section of interest groups, from liberals to conservatives, and secessionists to devolutionists.

One of the working group’s principal goals is to secure the devolution of policing powers to the Western Cape Provincial Government. Although it seems to me that the focus on the Western Cape is an own-goal – since whatever they achieve for the Cape would necessarily be applied throughout South Africa – this demand is perfectly reasonable, pragmatic, and importantly, legal.

As to be expected, various adverse responses to this initiative have been expressed. I wish to focus on the responses-from-constitutionality, primarily those by Cyril Ramaphosa and Pierre de Vos. First, however, it is useful to understand what the Constitution says about devolution and law enforcement. Although devolution is part of the notion of self-determination, I will only focus on the latter later in this article.

Devolution is constitutional

Section 99 of the Constitution allows cabinet ministers to delegate any power that they have in terms of an Act of Parliament to a provincial MEC or to a municipal council.

Section 199(1) of the Constitution provides that, “The security services of the Republic consist of… a single police service…”

Section 206(4) of the Constitution provides that a provincial executive is responsible for those policing functions that have been assigned to it in terms of an Act of Parliament or in terms of the national policing policy.

The Constitution, in other words, clearly provides for the devolution of policing power to lower spheres of government. The only proviso is that there may only be a single police service for South Africa as a whole. Just like the Mobile County (Alabama) Constable Office is not a “security service of the United States,” a Western Cape provincial police force or a Polokwane police department would not be a “security service of the Republic.” The Constitution, therefore, allows for the establishment of subnational police services.

The way we know this in practice is by the existence of dozens of municipal police departments throughout the country.

Since 1998, the South African Police Service Act has allowed municipal MECs to establish “a municipal police service for its area of jurisdiction.” Section 64E of the Act provides that these municipal police forces are responsible for, among other things, “the prevention of crime” – thus, not merely traffic enforcement. The Minister determines what the powers of municipal police officers are.

These provisions in the Act are not due to any parliamentary discretion, it must be added. Section 156(4) of the Constitution, quite a special provision, provides that national and provincial governments must devolve the administration of any national or provincial matter (including policing) to municipalities if they would be more effectively administered locally and the given municipality has the capacity to administer it.

Ramaphosa the… legal scholar?

A certain “Cyril Ramaphosa” is listed as a co-author of the 2002 textbook book, Constitutional Law: Analysis and Cases, alongside Ziyad Motala. Presumably the authors of this textbook are well-versed in constitutional theory and law.

The legal scholar Ramaphosa might only coincidentally share a name with the present head of government, because on 19 September 2022, the President, in a reply to a parliamentary question by the DA, said that the Minister of Police cannot devolve policing powers (because these are the powers of the National Commissioner of Police) and that devolution would require an amendment to the Constitution. There may constitutionally only be one police service, the head of government said.

The head of government Ramaphosa should speak to the legal scholar Ramaphosa, so that the latter can inform the former of the following realities:

  • Cabinet ministers are empowered by the Constitution to delegate any power that they have under national legislation to a lower tier of government, and that this has already been done, continuously, since 1998 under the South African Police Service Act;
  • The Act, explicitly, bestows the power on the Minister (not the National Commissioner) to determine what powers municipal police officers may wield – all, some, or none of the national police service’s powers;
  • Provincial governments are empowered to exercise any policing functions delegated to them by national legislation; and
  • A provincial police service would not be a “security service of the Republic,” but a subnational security service, like a municipal police service.

The head of government Ramaphosa, despite seemingly not being a legal scholar, has been part of the South African government, or at least its political landscape, for several decades. How he has not noted the presence of non-SAPS police officers throughout the country up to now is anyone’s guess. Policing power in South Africa has been partially devolved for many years without constitutional challenge.

I am sure that when President Ramaphosa does notice this, he will be quite shocked.

What is a constitution?

Speaking of the Constitution, it is always important to ask: what is a written constitution?

A written constitution is a legal instrument that sets the parameters of political authority. It is written because society desires these parameters – these limitations – to be “locked-in,” as Professor Randy Barnett puts it. “Lock-in” in a written constitution is useful because it clearly states what the limitations of the powers of political authorities are, without those authorities being able to decide it for themselves.

Where there are unwritten constitutions, like in New Zealand or the United Kingdom, the political authorities can simply decide in legislation what the limits of their power are. In dispensations of written, supreme constitutions, the meaning of the constitutional text and therefore the scope and extent of political power is theoretically locked-in.

A written constitution, then, in its very essence, is all about the limitation of the power of the State. This is, after all, what constitutionalism is about: ensuring that the State is limited and bound by law, as opposed to the days before constitutionalism when the State was not bound by law.

What this means in practice is that when a specific written constitution is interpreted or construed, the essential function of a written constitution generally must be borne foremost in mind. There is often much ambiguity and vagueness in such an instrument, and the blanks cannot be filled with content that goes against the essence of constitutionalism. 

In other words, one cannot construe a constitution in an anti-constitutional fashion. If one were allowed to do so, it would not matter what the text of a constitution says – lock-in would make no difference – because the readers of the text would simply “read in” their own preferences. This is how many oddities have come about in South African law, such as the nonsensical “constitutionality” of racialised public policy.

The perspective from which one approaches the Constitution matters. And this approach must always be a constitutionalist one.

De Vos and the anti-constitutional constitution

This is, unfortunately, where Pierre de Vos falls foul of the standard. In his many years of constitutional commentary, he has had a remarkable tendency to read the Constitution anti-constitutionally, often hiding behind the errant judgments of the superior courts.

In his own take on the Devolution Working Group, De Vos dismisses section 235 of the Constitution just as he had done before, alongside casting doubt on the practical legality of devolution in general. At a prior occasion, De Vos described section 235 as “one of those typical smoke-and-mirrors provisions inserted into the Constitution to placate right-wing whites without creating any legal rights or obligations.” 

This view is inherently opposed to the notion of constitutional supremacy, because it holds out a constitutional provision as ineffective – it might as well not exist. To regard provisions in a supreme constitution as nothing more than a throat-clearing exercise is certainly not part of any constitutionalist enterprise. 

Indeed, one of the presumptions of statutory interpretation from common law is that meaning must be assigned to every word and phrase – nothing may be regarded as redundant.

Section 235 of the Constitution provides as follows:

“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”

De Vos interprets this as giving Parliament the right to simply ignore any appeal to or request for self-determination. The rider at the end, to De Vos, is an unbridled parliamentary discretion.

This take is necessarily incorrect for two main reasons:

First, Parliament would have had such a discretion without section 235. Why would section 235 be added explicitly to the constitutional text? Had section 235 not existed, Parliament could, in terms of its general legislative powers, recognise the right to internal self-determination and devolve powers downwards. But section 235 does exist, meaning it does something more than simply recognising an existing parliamentary discretion;

Second, self-determination is a fundamental norm of international law. It is not optional. 

Section 235, then, must be read not as giving Parliament an open-ended discretion to decide, willy-nilly, whether or not to recognise self-determination. It must be read as an obligation on Parliament to recognise and provide for self-determination whenever a viable claim to self-determination is made. Customary international law is applicable to and in South Africa.

The text supports this view if read constitutionally and not contemptuously. Section 235 provides that the self-determination of the country as a whole may not be used (as is often done around the world when minorities seek self-government) as an excuse to deny self-determination to any component part of South Africa when demanded. National legislation, in light of the international law imperative of self-determination, must therefore determine a framework for internal self-determination.

Such a reading of the Constitution would be more compliant with the essential nature of written constitutionalism, as it recognises additional institutions to serve as checks and balances and amplifiers of democracy. De Vos’ construction of section 235 amounts to nothing more than giving the central government a “right to ignore” reasonable demands for devolution, which does not gel with the idea of limited government under a supreme constitution.

To top it off, the South African Constitution is formally a federal constitution. To interpret ambiguous or vague provisions in a unitary fashion is therefore also out of bounds, because it would simply contribute to depriving a federal instrument of its federal character.

Devolve or step aside

The Constitution, in other words, does not stop Parliament from making similar allowances for provinces as it has already done for municipalities as concerns policing powers. In fact, it would be possible to interpret the Constitution as requiring Parliament to do so.

The longer reasonable demands for devolution are ignored by the central government, the closer the African National Congress (ANC) steers South Africa to bottom-up federalism, secession, or even complete collapse. It would bode well for the ANC and its cheerleaders in the commentariat to become friendlier to the idea of devolution, before the decision is taken out of their hands entirely.

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