A YEAR has flown by since the Constitutional Court delivered its judgment in the latest round of public interest litigation in which businessman Bob Glenister and the Helen Suzman Foundation have participated either as applicant or, in the case of the foundation, as amicus curiae. Let’s call the case “Glenister III”.
The litigation, which has been spread over the years following the 2007 Polokwane resolution of the African National Congress (ANC) to disband the Scorpions and transfer its investigative personnel to the police, has steadfastly been aimed at preserving or creating an effective and independent anticorruption entity of state that is capable of dealing with the tsunami of corruption in SA.
The success of the Scorpions was the reason for the downfall of the unit. Too many important ANC-aligned politicians and their friends received unwelcome attention from them, and their willingness to investigate without fear, favour or prejudice so discombobulated the leadership of the party that the unit had to be closed down. Unfortunately, the Scorpions were not clothed with security of tenure of office — Parliament made them and Parliament had the power to close them down.
However, that was not the end of the story. In 2011, in the case now called “Glenister II”, the Constitutional Court found that corruption was a human rights issue and SA’s international obligations, as well as our national commitment to a justiciable Bill of Rights, required the state to maintain an adequately independent and effective anticorruption entity. The Hawks did not measure up to these requirements in their first incarnation and the legislature was accordingly ordered to take steps to put in place a suitable successor to the Scorpions.
The initial attempt to do so was impugned by the Helen Suzman Foundation on technical grounds relating to the structure and functioning of the second incarnation of the Hawks. Glenister went further and complained that the location of the Hawks within the SAPS was not “a decision of a reasonable decision-maker in the circumstances”. He pointed to the corruption of the police leadership, the cloud hanging over the president and some “birds of a feather” in his Cabinet, as well as the allegations of Hawks involvement in illegal renditions. Glenister contended that in these circumstances it would be folly to leave the Hawks in the police.
He was given short shrift on these arguments by the Constitutional Court’s majority. The minority, while willing to entertain most of the facts put up in support of the argument, were, however, not willing to accept its thrust. The majority, while accepting that corruption is rife, were not prepared even to consider the factual matrix adduced in support of the argument that the Hawks should not be part of the police. The allegations were struck out and Glenister was accused, in the majority judgment, of “odious political posturing”.
The court nevertheless did some extensive panel-beating of the legislation to improve the Hawks’ effectiveness and independence. After a year, the time is ripe to evaluate progress and see whether the approach of the majority has worked.
As soon as he twigged that he had been given greater powers in the combating of corruption, Hawks head Anwa Dramat called for certain “highly sensitive” dockets that had been kept from him by the police. Among these were the Nkandla docket opened after Accountability Now, the Economic Freedom Fighters and the Democratic Alliance laid charges based on the report of the public protector called “Secure in Comfort”.
Dramat did not get the dockets. Instead, he was threatened with suspension and an investigation into his involvement in the allegations of rendition of Zimbabwean citizens to the tender mercies of the police of that country. The investigation of these allegations had trundled along at a pedestrian pace for several years and the investigators had exonerated Dramat.
He could see that this stratagem was a pretext for getting rid of him as head of the Hawks but, rather than fight, he tamely surrendered and took a golden handshake that suggests that his personal security of tenure was tenuous and that the police role in the investigation of corruption in high places is still capable of trumping that of the Hawks due to the unit’s subservient role. This could not have happened had the Hawks not been a unit within the police. The chief of police and head of the Independent Police Investigative Directorate are both suspended pending investigation of their fitness for office. New life is now being breathed into the allegations of illegal rendition too.
Dramat’s replacement with a crime intelligence officer, Gen Berning Ntlemeza, is being contested in the courts on the basis of a credibility and integrity finding against him in the high court. The police whistle-blower who fingered Ntlemeza is being given a torrid time and very little protection.
The work rate of the Hawks is at a low. In its first full-year of operation it managed 14,793 arrests, but by 2014-15, this had dropped to 5,847, and from last April to September, only 1,033 arrests were made by the Hawks — this at a time when the Constitutional Court remarks that corruption is rife.
The National Prosecuting Authority, which enjoys express rather than implicit independent status in the Constitution itself, is also in disarray. The national director of public prosecutions, Shaun Abrahams, not yet 40 years old, has replaced his predecessor in circumstances that are being assailed in the courts on the basis that Mxolisi Nxasana’s agreement to step down is tainted by irregularity, irrationality, unconstitutionality and corruption. Criminal charges of corrupt activities against the president and his justice minister for their roles in securing Nxasana’s departure from office are under investigation by the Hawks. The well-informed are not holding their breath.
Three of Abrahams’s top lieutenants face legal proceedings aimed at having them struck off the roll of advocates pending disciplinary action. The Hawks are not actively engaged in any of these proceedings; indeed, Nomgcobo’s Jiba criminal trial was withdrawn on a palpably spurious basis.
It is as plain as a pike-staff that the Hawks are not functioning as an effective and independent structure; they are hardly functioning at all if their arrest rate is an indication.
The answer to this malaise is to give our anticorruption entity investigative and prosecutorial powers like those of the Scorpions, security of tenure of office superior to that of the Scorpions, and a guaranteed budget that makes adequate provision for proper training and the specialisation of personnel. In short, a new Chapter Nine institution, the Integrity Commission, is now overdue.
With the benefit of a year of hindsight, Glenister’s insistence in Glenister III that the Hawks should not be left in the police appears not so much “odious” as justified.
Hoffman is an advocate and director of Accountability Now