Paul Hoffman says the Glenister cases set important legal precedents.
While the naming and shaming of those who voted the Scorpions out of existence is a timely and valuable exercise, there are positives which have emerged from the messy business of changing the law to suit the convenience (and freedom) of crooked leaders and those who consort with them from the spheres of business and industry.
Not all South Africans took the decision to disband the Scorpions lying down. Bob Glenister organized a petition to protest. He drew close to 100,000 signatures. When the dastardly scheme was followed through with the creation of the puny Hawks, he litigated the constitutionality of the new law with success, by a narrow margin of five votes to four in the Constitutional Court.
When the Hawks legislation was struck down as inadequate to create an effective and efficient anti corruption entity to replace the Scorpions due to its lack of operational and structural independence, Glenister funded a country-wide competition to encourage the creation of a best practice substitute for the judicially condemned Hawks. Entrants submitted their suggestions which were judged by a panel of three retired judges.
Glenister did not find himself alone when the remedial legislation ordered by the court saw the light of day in the form of a much criticized Bill. Only one of the more than twenty submissions made to the police portfolio committee considering the Bill was supportive of it, the rest were critical to a greater or lesser degree. In response, the parliamentarians effected 50 adjustments to the bill without actually rendering the final product constitutional. Glenister’s invitation that the unit be removed from the police and instead become a new chapter nine institution dedicated to busting corruption by preventing, combating, investigating and prosecuting the corrupt fell on deaf ears.
Immediately after the remedial legislation, as amended, came onto the statute book, Glenister and the Helen Suzman Foundation applied urgently to the Consitutional Court impugning state compliance with its order in favour of Glenister and the public. Somewhat surprisingly, the court ruled that it was not in the interests of justice to grant direct access, thus forcing the two applicants to start over in the High Court. Most litigants faced with a setback of this nature turn tail and try extra judicial means of getting the relief they desire. This option is not open to a litigant attacking the constitutionality of legislation – in this case the legislation that gave birth to the Hawks Mark II.
To their credit, Glenister and HSF did not put their tails between their legs and disappear into the long grass to lick their wounds. Instead, still acting separately, they succeeded in persuading the High Court and later, on appeal, the Constitutional Court, that the new Hawks legislation was indeed lacking in important respects. The courts did not, indeed could not, take up the idea of an Integrity Commission under chapter nine. The political will to do this must come from voters who support political parties that commit themselves to establishing an Integrity Commission to take on corruption and organized crime, leaving the Hawks to deal with priority crimes of various kinds.
The current need for an Integrity Commission is obvious. Only personnel who enjoy security of tenure of office will ever be able to match the productivity and excellence of the Scorpions. Indeed, this form of security was the missing ingredient from the recipe for sound anti corruption machinery of state which the Court laid down in binding fashion when Glenister challenged the first Hawks legislation. It can be argued that the Scorpions were specialized, trained, independent and adequately resourced. They were not however secure in their tenure office office.
The court ruled that as a mere creature of statute the unit could be dissolved by ordinary legislation. That rule does not apply to any of our chapter nine institutions. They require a special majority of votes before parliament can tinker with them. It is for this reason that the Integrity Commission is the best practice solution to the otherwise intractable state of burgeoning corruption, a malady that currently threatens to “graduate into something terminal” in the words of the Chief Justice in the last case, finalized in November 2014.
It is crystal clear that the Hawks do not measure up to any of the criteria laid down in the Glenister cases. They are not adequately independent to resist political influence and interference. It appears that they have been captured and now operate as part of the “dirty tricks department” of those involved in the silent coup in South Africa. This situation is not what the court had in mind, but, its findings are binding on the state.
In these circumstances it is possible to challenge the manner in which the Hawks operate, their conduct measured against what is legally required of them, as being inconsistent with the Constitution. This happy circumstance arises because the Constitution means what the court says it means and the STIRS criteria summarized above are the law.
Conduct inconsistent with the Constitution is invalid. If a challenge in court becomes necessary, it will force the politicians to reconsider their position as reflected in the debate over the demise of the Scorpions. In this way the political will to create constitutionally compliant anti corruption machinery of state could be generated.
It ought not to come to that. Honest politicians who state their opposition to corruption need to put their weight behind the notion of an Integrity Commission. Worried voters should insist that a commitment be given to set it up immediately. ANC branches should ponder anew the prospects of success in the next elections without a clear and unequivocal commitment to deal with corruption decisively.
Had the litigation which the dissolution of the Scorpions spawned not been waged over three hearings in the Constitutional Court, it would not be possible to point to the binding criteria created by that court and to the failure of the state to comply with them. The fight against the corrupt would be the weaker for that. Some good did come from contesting the closure of the Scorpions. It ought now to be clear that the silk purse the court requires cannot be fashioned from the sow’s ear to which the Hawks have degenerated.
Article published in PoliticsWeb on 21 July 2017