It must be galling for COSATU, having recently invested millions of rand of its members’ hard earned union contributions in the establishment of Corruption Watch, to observe that the political will of the ANC led government to match anti-corruption rhetoric with appropriate measures is sorely lacking. If cynical commentators are seeking proof positive of their oft aired view that the powers that be are soft on corruption, they need look no further than the provisions of the South African Police Service Amendment Bill of 2012.
This Bill will be debated in Parliament and a public participation process needs to be embarked upon hastily as the Constitutional Court has ordered that remedial steps be taken by September to deal with the unconstitutionality of the existing laws in place for preventing, combating, investigating and prosecuting the scourge of corruption. There is no doubt that corruption has the potential to destroy all that is good about the new democratic dispensation. The people’s longing for peace, progress and prosperity, so eloquently reflected in the Constitution and especially in the Bill of Rights, is unlikely to be realised if predation, rule by coercion, rent seeking and state capture, as well as other forms of corruption are allowed to become the order of the day. Failed state status, as has occurred in Zimbabwe, beckons SA if suitably stringent and sustainable steps to address corruption in high places are not taken soon. The nature of our future is at stake in this public and parliamentary debate. It accordingly behoves all patriotic SA citizens to become informed and do what they can to help the process toward a best practice solution.
That the Bill just published does not posit any such solution is apparent from any fair reading of its provisions. The Bill fails to put in place that which the majority of the court endorsed when it struck down the Hawks legislation. Relying on detailed research by The Organisation for Economic Co-operation and Development (OECD), the court endorsed the notions that an effective anti-corruption body should be independent, specialised, properly resourced, well trained and should be endowed with protection ensuring the security of tenure of its personnel.
Independence in this context implies the ability to prevent, combat and investigate corruption without fear, favour or prejudice. The National Prosecuting Authority (NPA) is already constitutionally endowed with prosecutorial powers of this kind in the single prosecution service model that is incorporated in the provisions of Chapter Eight of the Constitution. As the head of the NPA is notionally an objective public servant (not a deployee of Luthuli House) who has the power to make prosecution policy, there is, notionally speaking, no need to fret about the prosecution of corruption, which is a species of crime that is a cancer in any society.
Accordingly, the ideal specialised body for SA conditions does not have to function with the level of independence of the courts nor does it need to prosecute corruption as its investigation dockets must go to the NPA. It does, however, have to be free of political interference and ought therefore to report to what was referred to as an “accountability body” like Parliament, when the Bill was introduced to parliamentarians by SAPS.
The Bill puts the Minister of Police firmly in charge of the revamped Hawks; removing them from the control of an existing committee of cabinet ministers. This is a distinction without a difference in that the political control of the Hawks is unaffected by the change proposed. This won’t do.
Acting without fear of the powerful, favour toward the friendly and prejudice to the public has not been the hallmarks of the track record of the Hawks. Nothing in the Bill inspires confidence that this will change as a result of the tweaking envisaged by the Bill.
Specialisation is a criterion that is ignored in the Bill. The Hawks, as their official name implies, are not corruption specialists. The Directorate of Priority Crime Investigation, as it is called in the Bill and in the existing unconstitutional law, is concerned with priority crimes, not just corruption. Corruption, recently redefined by the OECD researchers as “the abuse of entrusted authority for illicit gain” ought to be a priority crime, but, in SA it is not the only priority crime what with violence, robbery, drug dealing and human trafficking plaguing the land. Best practice suggests a specialist body; surely the long suffering SA public has earned the right to replace the Hawks with Eagles (an Anti-Corruption Commission) that can act as a specialist body, preying on larger manifestations of corruption than the rats and mice the Hawks feel themselves empowered to hunt.
The tweaked Hawks remain police personnel and do not enjoy any proper security of tenure. On the contrary, the leadership can be suspended without pay by the Minister of Police, something he is likely to do if he, or someone he wishes to protect, comes under investigation by the new semi-independent head Hawk. Recent stories emerging from Kwa-Zulu Natal suggest, despite denials, that this could be a real life scenario, not a theoretical example.
The experience of Vusi Pokoli at the hands of then President Mbeki (who suspended him for having the temerity to prosecute Jackie Selebi) and then President Motlanthe (who fired him for investigating private citizen extra-ordinaire, Jacob Zuma) shows that the SA executive is not above political interference in criminal investigations into corruption. Now Selebi is in jail for corruption, Zuma is President and Pikoli, after litigation, has been exonerated and is safely ensconced in civil society, with a multi-million rand settlement paid to him because it was plain wrong to treat him in the way he was treated by the executive and parliament. His willingness and ability to prosecute corruption without fear, favour or prejudice, as the Constitution requires, was the right thing to do as the fate of Selebi and the settlement with Pikoli show. There is unfinished business with Zuma, in that litigation concerning the validity of the much criticised decision to withdraw charges against him is still pending.
Learning from all this experience is the sensible way to implement the Glenister judgment. It requires remediation of the lack of operational and structural independence of the Hawks. Even- handed multi-party political control of the new body, its ability to act impartially, its security of tenure, capacity and resources are all important criteria as is the notion that an effective anti-corruption body is made up of specialists.
An Anti-Corruption Commission (ACC), the Eagles, housed within the structure of Chapter Nine of the Constitution is the suggestion that IFAISA has put forward well before the Bill was published. No official engagement on the suggestion ensued, nor was Glenister consulted on the Bill before it appeared. If the Bill now on the table is at one end of the spectrum of possible means of correcting the legal position, then the ACC is at the opposite end. The Bill proposes doing as little as possible to satisfy the criteria set by the Justices on Constitutional Hill and is patently not a “best practice” solution. The essentially African idea of an independent specialist ACC is based on doing as much as possible to stop the cancer of corruption corroding the fabric of society and ruining the prospects of properly addressing the inequality, poverty and unemployment that blight the nation.
The public of SA has thus far tolerated rampant corruption. Ordinary people have surely had enough of this “theft from the poor” that involves diverting public money from realisation of socio-economic rights guaranteed to all by enriching the power elite that is establishing a small predatory group bent on capturing the state. COSATU calls them hyenas.
The Hawks, both pre and post the Bill, don’t fly high enough, don’t range wide enough and don’t go after large enough prey. They can stick to doing the good work they do on other priority crimes, the Eagles must take on the task of conquering corruption in high places. The Eagles must be allowed to do so by sustainable laws with suitable accountability structures. SA needs, and deserves, nothing less.
Paul Hoffman SC
10 March 2012.