The Directorate of Priority Crime Investigation or Hawks unit of South African Police Services (SAPS) does good work on priority crime. It does very limited work on corruption in high places because of its structural positioning and its operational constraints. As such, it is not a body which is sufficiently independent to tackle the challenges of systemic and endemic corruption in South Africa today.

Parliament knows this. So does the Constitutional Court. The latter has ordered the former to take remedial steps by September 2012 to address its failure to secure an adequate degree of independence for the Hawks in the existing legislation.

A committee of the National Assembly has been wrestling with how to do this in a manner that is constitutionally compliant. The Bill it has worked on since March will be debated in the house shortly. All of the efforts of civil society, academia and opposition parties to persuade the ANC majority on the committee that sufficient independence is unattainable within existing SAPS hierarchy have fallen on deaf ears. The Bill has been tweaked and twisted in an effort to make a silk purse out of a sow’s ear. These efforts have been in vain, the adjustments do not, on any objective conspectus of their meaning and effect, cut it constitutionally. As the Constitutional Court put it, in its seminal Glenister judgment: “To create an anti-corruption unit that is not adequately independent would not constitute a reasonable step.”

As the Bill as amended by the committee is not constitutionally compliant it is now the duty of Parliament to reconsider it further to make it pass muster.

It must be noted that the Court has already approved the criteria applicable for the creation of a best practice anti-corruption unit of the kind SA has promised its treaty partners around the world. These criteria, developed through the research of the Organisation for Economic Co-Operation and Development (OECD) are:
Specialised attention to corruption by a unit created for that purpose
Properly focused training for the dedicated anti-corruption personnel
Independence from the spectre of political interference, influence and manipulation
Resourcing of the kind that is guaranteed and insulated against the political trick of “turning off the taps”
Security of tenure of staff so that the possibility of dismissal or non-renewal of contracts is limited and circumscribed.
These criteria have been reduced to the acronymn STIRS (Specialisation, Training, Independence, Resources and Security of tenure of staff) in order to concentrate minds in the debate and focus attention on that which is important in the process of responsively changing a law that is vital to the interests of ordinary people who are deprived of the rights guaranteed to them in the Bill of Rights due to corruption diverting public funds away from proper service delivery.

There is very little evidence that the committee actually applied these five criteria to the Bill in any shape or form approximating best practice. Instead, and unfortunately, the focus has been on doing as little as possible to squeeze the square peg called the Hawks into the round hole prescribed by law for the specialised anti-corruption unit envisaged in the judgment of the Constitutional Court. This focus is due to the Polokwane resolution of the ANC back in 2007, on which Luthuli House has to report back at the upcoming conference in Mangaung. The resolution requires that the functions of the now defunct Scorpions be transferred to SAPS. There is a single-minded determination to ensure that the law says that, irrespective of the ruling of the Court.

An anti-corruption unit that is “adequately independent” is a relative concept. The degree of independence enjoyed by the judiciary and the prosecution service is not necessarily the degree of independence that an anti-corruption unit needs. Less could be adequate, depending on the circumstances relating to corruption, the functionality of existing institutions and the political climate of the day. If there is not much corruption about, if the existing institutions are well managed, objectively sound and if the political climate is such that there is zero tolerance of corruption, no culture of impunity and there is proper accountability in a transparent fashion, then “adequate independence” may be set at a relatively lower standard than that which is required to sufficiently arm the state to see off any major challenges posed by corruption.

The scourge of corruption has been described by the court as a risk to the security and stability of SA. It says: “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”.

SAPS itself was labelled as a dysfunctional part of our dysfunctional criminal justice administration by Adv Johnny de Lange, then Deputy Minister of Justice, in the debate that gave birth to the Hawks. Little, if anything, has been done to address the dysfunction he identified so meticulously for the benefit of parliament. As is notoriously well known, a former Chief of Police is languishing in prison, serving a 15 year sentence for corruption. His successor is suspended pending the findings of a board of inquiry which is likely to find him incompetent or crooked; his acting substitute is under investigation by the Public Protector for alleged maladministration and irregular conduct. Chief of crime intelligence, Richard Mdluli, is forever in the news for all the wrong reasons and Freedom Under Law (FUL) is now seeking to interdict him from carrying out his duties. One of these duties is to decide whose telephones may be tapped during the course of criminal investigations by his authorising the necessary applications to court to do so. The minister of police is under investigation for misappropriation of secret slush funds for the purpose of building a wall around his holiday home, irregular use of a motor vehicle belonging to the state and nepotism. The president himself has 783 unresolved counts of corruption against him, charges which could be revived if the decision not to proceed on them is successfully reviewed in the courts at the instance of the DA. The National Prosecuting Authority (NPA) thinks the charges have merit.

It ought to be obvious to any objective observer that an effective anti corruption unit ought to be located as far away from SAPS and the executive as possible, given the circumstances sketched above. It is not impossible to do so, nor is executive control a necessity. The Institute for Security Studies (ISS) presented comparative legal literature to the committee that shows that anti corruption units elsewhere report directly to parliament, not to the executive. The Institute for Accountability went so far as to present the committee with a detailed proposal for an anti-corruption commission under Chapter Nine of the Constitution. If the final presentation by the research unit of parliament dated 16 May is anything to go by both submissions were ignored. The presentation is felicitously titled “Amendments made during deliberations by the Portfolio Committee of Police against the Constitutional Court Judgement” and is contradictorily labelled “Conpliance to (sic) the Constitutional Judgement CORRECTED(1)”.

The difficulty posed by section 207 of the Constitution, which puts the National Commissioner of Police in the position of management and control of the Hawks, is unconstitutionally evaded by purporting to give the head Hawk the power to overrule the person constitutionally in charge. That won’t work and ought not to survive the scrutiny of parliament.

The truth is that unless the constitution is amended, the structure and operations of SAPS are such that it is impossible to house the specialist anti corruption body within SAPS. The Hawks unit is not even a specialised anti-corruption unit – its mandate will still extend to all “priority crimes”.

The Bill needs to go back to the drawing board; it does not have the makings of legislation capable of passing constitutional muster.

Paul Hoffman SC
17 May 2012.