In March last year the Constitutional Court found that the Hawks are not sufficiently operationally and structurally independent to constitute the type of anti-corruption entity which the human rights culture of the Constitution requires and which South Africa is bound by international treaties to maintain. The Court’s order is suspended until September this year to give Parliament the opportunity to take steps to remedy the shortcomings of the Hawks, or Directorate of Priority Crime Investigation as the unit of SAPS is formally named.
This week Parliament will hear public submissions from a wide variety of civil society players who have already responded in writing to the SAPS Amendment Bill 2012 which the Executive branch of government has proposed as its response to the judgment in the Glenister case. This is the ruling that has precipitated the need for Parliament to create an operation and structure that is able to function without political interference in the all important fight against corruption, a national priority.
As parliamentarians ponder the Bill, which envisages no more than a tweaking of the operations and structures of the existing Hawks, they will have to decide on the adequacy of the Bill both in the light of the judgment and in the context of their constitutional responsibility to hold the Executive to account as envisaged in section 55 (2) of the Constitution. Their oath of office to uphold the Constitution will weigh heavily upon them, especially those who are mindful that expulsion from the party that nominated them to Parliament summarily ends their parliamentary membership under section 47(3)(c) of the Constitution. The Bill is the creature of the majority party, albeit those members of the party deployed elsewhere than Parliament. The debate on the Bill will pose a huge test of the loyalty of party members to the Constitution rather than to the dictates of the party bosses in Luthuli House.
The frank admissions in Parliament last week, made by the Acting National Commissioner of Police, that “high ups” tell SAPS who to investigate and who not to investigate are cogent evidence of the lack of independence of SAPS and of its vulnerability to political interference, the very mischief that the Court identified as in need of being addressed. Nor is this admission an isolated matter. The dysfunctional features of management of the SAPS are legion. Jackie Selebi, a politician who was made National Commissioner of Police, is serving a 15 year sentence for corruption. His successor, Bheki Cele, also a politician, is suspended pending the decision of a board of inquiry into his fitness for office. He allowed leases at more than triple the going rate for police headquarters in Pretoria and Durban. It is difficult to conclude that this could have been done innocently and that such a person should be reinstated: either Cele was an incompetent accounting officer who unduly relied on underlings, or he was involved in the corrupt procurement of leases. Unlike Selebi and Cele, the current acting incumbent is a professional police officer. He has done the country a huge favour not only for being so frank about political interference in policing duties, but also for the exquisite timing of his revelation.
In its judgment the Court identified five characteristics or criteria for best practice for a state entity maintained for the purpose of combating corruption, a nasty, corrosive force in any society, but particularly in a society in transition to a democratic, open, accountable and responsive future of the kind envisaged by the founders of the new SA. The criteria are: Specialisation, Training, Independence, Resources and Security of tenure of staff (STIRS). A unit that can be said to have all of these characteristics in abundance is well equipped to conquer corruption; but if it lacks any of these, it will struggle to perform effectively. A useful acronym, STIRS, sums up these criteria in an apposite and easily remembered word.
There is very little STIRS in the Bill now before parliament. The Hawks do not specialise in anti-corruption work; they will be obliged to deal with all priority crimes, which at times may lead to corruption being neglected. A good example of this occurred in September 2010 when Anwa Dramat, the head of the Hawks since its formation, announced that the investigations into corruption in the arms deals had been closed for want of capacity to sift through the mountains of evidence available to the Hawks. Indeed, by then only one member of staff was working on a case that has the potential to recoup R70 billion for SA from the crooked arms dealers who scammed us into weird off-set deals and the acquisition of unnecessary armaments to fight imaginary foes.
There is no provision for appropriate training for the Hawks. Their predecessors, the Scorpions, were sent to Scotland Yard, the FBI and a secret military “kill school” to prepare them for the fight against corruption. This is an important omission from the Bill.
As regards the all important matter of operational and structural independence, a criterion necessary to insulate the Hawks from political interference in their operations, it is envisaged that the Hawks will remain in SAPS, and the history of SAPS is not one of a fiercely independent anti-corruption unit, as the examples cited above illustrate.
Proper resourcing of any anti-corruption entity is a sine qua non to its success. Political control of the amount that is voted to the budget can and does have the effect of starving the entity of the resources to perform properly as the closing down of the arms deals investigation demonstrates.
It is in the field of security of tenure of anti-corruption personnel that the Bill is most lacking. The Minister of Police (of all people) is given the power to suspend the Head of the Hawks without pay. It is an open question whether this was inserted in the Bill with a certain security wall, some cushy non-jobs for family, a nice vehicle to drive and other illicit (but stoutly denied) perks in mind. The screaming headlines “You lied, Mr Minister” concerning the current Minister of Police, demonstrate, very timeously, the folly of putting a any career politician in charge of the country’s anti-corruption entity.
We can anticipate lively debate on the Bill during the oral part of the public participation process. An alternative solution has been suggested: the creation of an Anti Corruption Commission as a new Chapter Nine institution, fully clothed with all of the STIRS criteria and answerable to Parliament itself. This has already been given the nick-name the Eagles. As any ornithologist knows, Eagles see better, fly higher, go after bigger prey and are less susceptible to poisoning than Hawks.
It is to be hoped that Parliament will hold the Executive to account in respect of the woefully inadequate content of the Bill, that members will vote with conscience and not tow their party line and that there will be a creative outcome that SA truly deserves: a new specialised anti corruption entity that is staffed with properly trained personnel who enjoy security of tenure, guaranteed resourcing and the independence to empower them to conquer the culture of impunity that rampant corruption has bred in our society. Public accountability, enhanced transparency and adequate mechanisms to counter impunity have been identified by the Public Protector as the way forward from the precipice on which SA teeters.
Paul Hoffman SC
23 April 2012.