There are broadly two ways political decentralisation takes place: authority is given, or authority is taken. This applies to the devolution of policing authority to provinces as well.
Where authority is given, we tend to talk of ‘devolution’. Devolution depends on cooperation from the central government. Where authority is taken – this could be aggressive, like a revolution, or peaceful, like stateproofing in the midst of a collapsing central government – no cooperation from the centre is necessary.
Unless a wild dog coalition takes over the reins of government in 2024, it is unlikely that the African National Congress (ANC) and whatever coalition partners it cobbles together will sign off on the devolution of policing authority to provincial governments – something that has been hot in the press in recent months.
It is certainly possible, of course, if the central government is forced to choose between devolution and a disintegrated state, but the chips have not quite fallen that way yet.
The other form of decentralisation, however – for lower spheres of government, like provinces, moving into space occupied by the central government – represents a distinct possibility in the context of the South African Police Service (SAPS)’s rapid decline.
This would not necessarily be a violation of the vertical separation of powers between provinces and the centre as, in my view, provincial policing can be done lawfully – but not uncontentiously – if there is a significant degree of creativity and, crucially, courage involved.
Two avenues
It would seem that there are two avenues open to provinces to make provincial policing a reality without asking the central government for permission in the form of devolution.
The first avenue creates both a de facto and de jure Provincial Police service, and the second creates only a de facto (but not de jure) service. The first therefore ticks more boxes and covers more ground, however the second is less legally contentious.
This should not, of course, be construed as opposition to devolution. Every effort being made to secure devolution must continue. South Africa is formally a federal state, and the central government’s irrational clinging onto certain functions does not comport either with our reality, or with the spirit of our constitutional dispensation.
However, securing devolution is a long game.
Before that succeeds, it would be useful in the meantime to build the capacity and infrastructure necessary to receive devolved authority when it comes. Implementing one of these avenues would be small, practical ‘win’ for devolutionists that will pave the way to bigger victories in the future.
First avenue: Provincial legislation
I have already elaborated on why devolution of policing downward is constitutional. Here I wish to address how delegating policing upward is similarly constitutional.
It is legally allowable for a provincial legislature to create a Provincial Police institution through a Provincial Police Act.
In general, provincial legislation can only be adopted if it is for a listed item in either Schedule 4 or Schedule 5 of the Constitution. A Provincial Police Act could be tagged under any one or more of the following: ‘Road traffic regulation’ (Schedule 4A), or ‘Provincial planning’, ‘Provincial roads and traffic’ (Schedule 5A), or ‘Control of public nuisances’, ‘Municipal roads’, ‘Public places’, ‘Traffic and parking’ (Schedule 5B).
Terms like ‘provincial planning’, ‘public nuisances’, and ‘public places’, are vague and broad enough (which is how constitutions are often intentionally written) to encompass what is suggested might be achieved with a Provincial Police Act. The Act would do three things:
Support services
Firstly, and most easily, the Act could establish a raft of ‘support services’. These include a forensics laboratory, an airwing, a police training academy, and a detective bureau. These services would provide support only upon request: by the SAPS, by a municipal police force, by the Provincial Police of which it is a part, by another provincial force, or a foreign law enforcement agency.
These services are crucial, as they are often not available to municipal police, and have all but collapsed in the SAPS. They are also all quite legal to establish: there are no laws prohibiting anyone from operating independent forensic labs, owning helicopters, or private investigators, that could (on tender) provide services to government.
The next two things the Act could do both relate to the establishment and operations of the uniformed Provincial Police. Because policing has not been devolved to provinces, the Provincial Police’s functional legitimacy must be established in a different way. This is how:
Security police
The second thing the Act could do is establish the uniformed Provincial Police as a ‘security police’. Security police (despite the terminological confusion from the Apartheid days) are responsible for the protection of facilities, infrastructure, and assets, rather than general law enforcement. This is not breaking new ground: South Africa used to have a ‘South African Railways Police Force’ prior to 1986 and this year the justice ministry also recognised Transnet ‘police’ as having similar authority.
Every province owns great deals of property, crucially provincial roads and highways. The Provincial Police would be the security guards that will ensure this property is protected. It would also offer protection to provincial offices and members of the provincial cabinet.
While security police will effectively only wield the powers of private security guards, this is nothing to scoff at. It is a rule of the common law that any person may intervene to save the life of another. Having security police ‘guards’ on provincial roads, or around provincial infrastructure in dangerous areas, contributes (if only indirectly) to visible policing, and allows those guards to intervene if they witness someone in mortal danger, even at a distance.
Municipal delegation of general law enforcement
The third – and most contentious – thing the Act could do, to get the uniformed Provincial Police beyond the security police role, is to establish a mechanism by which municipalities within that province may delegate their general law enforcement authority upward. As we know, the broad role of ‘crime prevention’ has already been devolved to municipalities via the SAPS Act of 1995.
The Provincial Police Act could provide for memorandums of agreement that municipalities may conclude with the province to invite the Provincial Police into their jurisdictions, either to supersede, be equal to, or provide support to existing municipal police services. This mechanism will be especially valuable to municipalities that do not have the necessary resources to establish and maintain their own independent police services.
This is also where another avenue to constitutionalising a Provincial Police Act comes into the fray. Other than Schedule 4 and 5, section 104(1)(b)(iv) of the Constitution also allows provinces to adopt legislation for ‘any matter for which a provision of the Constitution envisages the enactment of provincial legislation’.
Section 238 of the Constitution, in turn, allows any executive organ of state in any sphere of government (herein, the municipal executive in charge of police) to delegate any power or function they have in terms of national legislation (herein, municipal policing in terms of the SAPS Act), to another executive organ of state (herein, the Provincial Police).
Since this is a constitutionally authorised delegation, it could be said that the Constitution would allow provinces to adopt legislation to regulate this delegation of power.
Nonetheless, this would be a fraught debate. The security police role discussed above, then, will act as the default role of the Provincial Police; the thing to always fall back upon, for example when municipalities revoke their delegations or the central government or courts try, unethically, to revoke general provincial law enforcement.
Scalpel vs hammer
Provinces, too, it turns out, often do not have the necessary resources to maintain a large provincial force, because the central government controls provincial purse strings. The Provincial Police Act, therefore, would have to make provision for municipal contributions to the financing of the Provincial Police. This intergovernmental pooling of resources is authorised by section 41(1)(h)(ii) of the Constitution.
While Panyaza Lesufi’s Gauteng Police, for example, might therefore not have the funds to maintain an airwing or forensics lab, a little bit of upward-flowing money from the Johannesburg and Pretoria municipalities – both of whose municipal police lack an airwing and lab – might go a long way to getting it over the line.
Municipalities could therefore share the cost of paying for a single service that they all benefit from.
Nonetheless, the financial reality cannot be minimised. If practical provincial policing is something opposition governments are truly interested in – bearing in mind how utterly unlikely it will be for the ANC government to devolve policing functions and funds downwards – they will more likely than not have to reallocate funds from other provincial budget items or seek private-sector assistance.
It also means the Provincial Police will, necessarily, be a smaller, more specialised institution. It will be the scalpel to the municipal and SAPS hammers. Where I think the Provincial Police could shine is in the support services, rather than the uniformed general law enforcement component.
Second avenue: Private security
The second avenue, other than a Provincial Police Act, to make provincial policing a practical reality, is to take the ‘security police’ component from the previous heading and focus on it. It might be a pilot programme, or a proof of concept, before moving to a fully-fledged Provincial Police.
The private security route could happen as follows:
The provincial government would, with the cooperation of the generous private sector in that province, establish a firm called ‘Provincial Security Inc’. This could be a provincial State-owned company or a private entity bound in its memorandum of incorporation to providing services to government.
This registered security provider will have various clients: the provincial government and, potentially, the multiple municipal governments throughout that province.
The firm will be empowered, by its clients, to guard all provincial and municipal property. The asset of relevance here, as with the security police in a Provincial Police, would be provincial and municipal roads – which zigzag all over the place, in most populous and rural areas.
Guards would have the authority to patrol and to address any security threats on and around these roads and properties.
Under the common law, as we have seen, anyone – including security operators – are allowed to intervene when the safety of another is threatened. In other words, guards protecting, say, the municipal roads in Mitchells Plain, will be empowered to intervene in any violent crime that they witness or are called upon by others to intervene in.
It is true that these guards would not have all the powers of general law enforcement, but they would have immediate province-wide jurisdiction and contribute significantly to visible policing.
Most of the support services in a Provincial Police service could also be privatised components of a provincial security firm.
Western Cape: Time for talk and time for practice
The Democratic Alliance (DA) has begun aggressively campaigning for police devolution. This must continue, even if a Provincial Police or provincial security firm is established.
Indeed, the ANC has bowed to pressure before and, provided there is a competent and coordinated effort to make it clear to the ANC that it does not really have a choice but to devolve, it is quite possible to achieve devolution. This effort could include litigation, where the courts are shown that SAPS is no longer capable of fulfilling its constitutional mandate, and that the central government may therefore not maliciously and irrationally withhold the authority or funding for subnational governments to try to protect their inhabitants.
But this is necessarily a long-term project that will not deliver provincial policing in the short-term. The central government has repeatedly and unequivocally replied with ‘no’ to every request for devolution.
In the Western Cape, which is already governed by the opposition – like Gauteng might be from 2024 – a provincial private security firm is something that can be established relatively easily and immediately without having to negotiate and argue with the ANC government.
A Provincial Police Act, in many respects, seems equally easy to conceive and adopt, although the practical machinations of its implementation are necessarily complex. It, too, however, can be done without asking some comrade or cadre somewhere for permission.
The added benefit of having, particularly, an existing Provincial Police institution – even if it is quite limited in capacity – is that when litigation over the devolution of policing inevitably takes place, provinces will be able to show the courts that the province has already taken steps that are effective in combating crime, compared to the SAPS’ inefficacy.
If, for instance, the Constitutional Court is presented with a Provincial Police that can do (and has done) the job, it will be much easier for the judges to order that SAPS and the central government allow it and fund it to do so. If the Constitutional Court is only presented with the ‘idea’ of a provincially-controlled police service on the one hand and the central SAPS on the other, it is far more likely for the court to make some ineffectual order that simply commands the SAPS to ‘do better’.
Best avenue to federalism in law enforcement
What is the best avenue to federalism in policing: a province with its own police service, or a province administering the central police service in its own territory? The DA, as a federal party, in my view should support the former, but tends to advocate for the latter. It likely does so on purely pragmatic grounds, but this does leave something to be desired.
The attractiveness of the two avenues to provincial policing discussed in this article is that, when it comes to devolution, the locus of control is external. The question is: ‘may we do X?’ But when it comes to provincial initiative, the locus of control is internal. The question, then, is one of practicality: ‘how do we do X?’
This is not an easy question to answer, as provinces will need to find the money for their policing initiatives somewhere in their existing budgets, assistance from municipalities, or from the private sector. But it is, at the end of the day, something the provinces do not have to wait around for to start working on – unlike pleading with Pretoria – and is therefore worthy of consideration.
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