The Constitutional Court requires that our South African anti-corruption entity should be adequately independent both structurally and operationally. It has given Parliament until September to come up with a constitutionally compliant and reasonable formula for replacing the existing Hawks with such an entity.

In the context of fighting corruption, independence connotes freedom from political interference, influence and manipulation. A corruption fighter need not be as independent as a judge or a prosecutor. Adequate independence is measured against the circumstances of the times. What is sufficient in times of honesty and probity is not adequate when corruption is rampant. An ability to prevent, combat and investigate corruption “without fear, favour or prejudice” is at the heart of the matter.

When he was interviewed on television upon being appointed head Hawk, Anwa Dramat assured the nation that his unit would work without fear or favour. The talent, capacity, structure and resolve to act without fear of the powerful, favour to the friendly and prejudice to the public weal has however eluded the Hawks, as their track record shows.

No political ‘big fish’ have gone down on the Hawks’ watch. Some cabinet ministers have been fired in circumstances that cried out for a criminal investigation, but none came. Some public servants high up in the hierarchy have endured negative public scrutiny without ever being subjected to the type of search and seizure operations for which the Scorpions were famous. To its everlasting shame the Hawks unit closed down its investigations into the infamous arms deals in September 2010, thereby prompting Terry Crawford-Browne’s application to the Constitutional Court in which the President conceded the need for a inquiry which could save the taxpayers of SA a whopping R 70 billion, if the arms deals are cancelled, as many think they could and should be.

The approach of the National Assembly to the task set by the Court is instructive. Instead of looking at the big picture of rampant and endemic corruption in the country, the select committee on policing has presented the full Assembly with a panel beaten version of the Bill that the executive branch of government has produced a full year after the judgment was handed down in the Glenister case. Like a flock of guinea fowl pecking away at a pile of mielie seeds, the committee fashioned over 50 changes to the draft without really changing anything of significance and without due regard to the circumstances of the times that call for a radical rethink in respect of a unit that has done nothing to inspire the confidence of the public in its ability to take on the cancer of corruption and conquer it.

It seems to have escaped the attention of the majority of the members of the National Assembly, including some in small opposition parties who should know better, that the adequacy of an anti-corruption entity is measured against the need to deal with the corrupt in society, including those in high places who have proved to be beyond the reach of the Hawks.

Factors ignored by those who myopically supported the Bill include the unresolved 783 counts of corruption against our President, the fact that the Minister of Police is under investigation by the Auditor General for misappropriation of state funds, the suspension of the current chief of police, Bheki Cele, (appointed to succeed Jackie Selebi, who is serving time for corruption), the off-again-on-again suspension of the chief of crime intelligence, Richard Mdluli, the Public Protector’s investigation of maladministration and irregularities on the part of the acting chief of police and the adverse comments in the Moloi commission’s report on the honesty and probity of senior police officials who testified during its hearings.

As investigative reporting by the Sunday Times reveals, even within the Hawks themselves, there are problems of great magnitude. Twelve of its members face murder charges in Cape Town, while its Cato Manor unit has been disbanded for behaving in a similarly disturbing and feral manner. The trouble goes right to the top. Anwa Dramat himself is implicated in the ignominious withdrawal of the Keg and Swan prosecution in circumstances which suggest that those SAPS personnel who were given rewards for their part in the botched investigation ought at least to refund the state for not actually getting the Pagad operatives allegedly involved convicted for allegedly planting the diesel soaked bomb found in a flower pot outside the Bellville pub.

In a SAPS administration and cabinet so beset with corruption related issues, it is appropriate to seek a best practice solution to the task of fighting corruption. Instead, Luthuli House has decreed that the Hawks must continue to flap around ineffectually in their tweaked form that the Bill as amended offers. This is not a satisfactory way in which to serve the public. It may suit those who are corrupt, but it certainly won’t help bring them to justice.

The Constitution itself insists that the chief of police controls and manages SAPS. Hawks are an integral part of SAPS. Without trying to change the constitutional requirement that the chief of police be in charge, it is now being suggested that the head of the Hawks will, by mere legislation, be given the power to overrule the chief of police when the occasion to do so arises and while remaining part of SAPS. This is plainly in conflict with the “management and control” which is constitutionally conferred on the chief of police who is also the accounting officer of SAPS. It accordingly will not pass constitutional muster should the legislation that emerges from the parliamentary process now under way retain this silly feature that ignores the hierarchical structure of the police service as well as the Constitution itself.

The Hawks are a square peg in a round hole. It would be better by far to replace them with the Eagles that have been suggested by the Institute for Accountability. The ability of eagles to fly higher, see further and go after bigger prey than hawks is what gives the Eagles their nick name. A stand alone structure, preferably housed in Chapter Nine of the Constitution, with operational capacity to truly act without fear, favour or prejudice is what the Eagles could offer in place of tweaked Hawks.

While the executive remains as compromised as it is, while Luthuli House remains bound by the Polokwane resolution to disband the Scorpions and create the Hawks in their place, and while there is no political will to get real about the danger that corruption poses to our security and stability as a constitutional democracy under the rule of law, there will be no miraculous about turn in the National Council of Provinces. It has the task of considering what has been passed (by 220 votes to 57) in the National Assembly. It is fervently to be hoped that the members of the upper house will reconsider what the Constitutional Court has asked for, what the Constitution itself allows and what has been presented to them. They have done well to refashion the not unrelated Protection of State Information Bill, they owe it to the country to do likewise with the SAPS Amendment Bill 2012. If they don’t, there is a perfect storm brewing; one which will see the issues ventilated in the Constitutional Court yet again.

Paul Hoffman SC
28 May 2012.