It is said that in politics a week is a long time. Last week was a short week, and this week is even shorter for some, given the way that the public holidays celebrating freedom day and workers’ day have fallen this year. But for the members of the select committee of parliament on police matters both weeks are bound to be long, given that they are devoted to debating what is turning out to be the mother of all clashes between the requirements of the Constitution and the wishes of the executive. This battle is over compliance with the international and constitutional obligations South Africa has to maintain an independent and effective anti corruption entity.

This work used to be done by the Scorpions, but post-Polokwane, the Hawks, a unit in SAPS, have been given the job of tackling “priority crime” which includes corruption. The Constitutional Court has ruled that the Hawks are not sufficiently operationally and structurally independent to acquit themselves of the task of tackling corruption free from political interference. The court has ordered parliament to take remedial steps. The executive has placed the SAPS Amendment Bill 2012 before parliament as its suggestion for repairing the legislative lacunae affecting the Hawks.

The ANC members of the committee considering the Bill find themselves between the rock of the Constitution and the hard place fashioned for them by Luthuli House with its “toe the party line or you will be fired” party list system. This is what proportional representation has spawned, to the detriment of accountability, proper representation of the people and responsiveness to their needs. The weaknesses of “wall to wall” proportional representation in parliament will be exposed by what will follow in the debate on the Bill.

So far 12 substantive submissions have been made, only one of which is approving of the Bill. Some prominent universities and IDASA have been conspicuous by their absence in the public participation process, but most of the usual suspects have made their voices heard.

A problem which has reared its head in the discussions on the Bill is that the Constitution itself requires that the National Commissioner of Police has “control and management” of SAPS. As everyone knows, this official is a political appointee. If she or he is the “boss” of the Hawks, the very mischief which the current legislation fails to address will live on in the new dispensation in that the requirement of independence from political interference and the need for an effective body will not be met. Hugh Glenister will return directly to the Constitutional Court to complain that his hard won order has not been complied with and another confrontation between the wishes of the executive and the values of the Constitution will ensue.

Of course, it is theoretically possible to address this problem by re-inventing the National Commissioner of Police as an ethical and professional non-political appointee, chosen in a manner reminiscent of a properly functioning Judicial Service Commission. Persons who are properly placed to take on the onerous duties and responsibilities of the post by reason of their qualifications, experience and track record of integrity and probity in the field of policing would be objectively identified for the job. This would make a welcome change from Jackie Selebi, a politician now serving time for corruption, Bheki Cele, another politician now awaiting the verdict of a board inquiring into his fitness for office and even the acting current incumbent who is under investigation by the Office of the Public Protector because of maladministration and criminality of which he has been accused.

The rot in SAPS does not stop there. Richard Mdluli, head of crime intelligence is under a wide ranging corruption investigation by the Inspector General of Intelligence (with the OPP keeping a watchful watching brief). Further up the hierarchy, thing do not look any better. The Minister of Police is under a cloud due to Mdluli related allegations of corruption on his part which he has referred to the Auditor General for investigation. His predicament will also form part of the material which the OPP is currently busy investigating. President Jacob Zuma has 783 unresolved charges of corruption against him, currently controversially withdrawn, but also the subject matter of a court challenge by the DA which could yet see them re-instated. Add Menzi Simelane, the soon to be replaced National Director of Public Prosecutions, to this unhappy mix and it is as plain as a pikestaff that the fish called “criminal justice administration” is rotting from the head down.

Nor is this news. In the 2008 debate concerning the demise of the Scorpions the then Deputy Minister of Justice, Johnny de Lange, described the system as “dysfunctional”. That ought to be a good reason to move the anti-corruption body out of SAPS, but that is not what was decided at Polokwane, nor does it suit those nervous persons whose snouts are in the corruption trough.

In this milieu, the select committee is being asked by the executive to kindly rubber stamp an arrangement which tinkers cosmetically with the current Hawks set up in a politically misguided and legally unsound effort to comply with a judgment that makes it crystal clear that what is needed to comply with the Constitution is an effective and sufficiently independent body to deal with the phenomenon of corruption.

Part of the problem is that the executive is approaching the issues as if corruption is just another manifestation of crime and merely a police matter. In SA today, corruption is much more than that. It is an endemic disease, a way of life for far too many people in both high and low places and the way of doing business, especially business with government. The description of bribes as “commissions” or “facilitation fees” or “necessary expenses” among the business community may be euphemistic. It is not a way of addressing the problems which rampant corruption poses to the very fabric of society. Unhindered corruption will surely lead to failed state status, as seen in Zimbabwe.

The Public Protector has spoken of a “tipping point” being reached in SA insofar as corruption is concerned. She advocates the strengthening of public accountability, the reinforcing of transparency (especially via investigative journalism and wider media coverage of corrupt activities) and tackling the culture of impunity as the strategies for dealing with the cancer of corruption.

The Council for the Advancement of the South African Constitution (CASAC) and Ifaisa have submitted to the committee that the anti-corruption entity that is created by the new legislation should include preventative and educative elements in addition to the usual police type work of combating and investigating the crime that corruption indubitably is. Sara Gon of the Helen Suzman Foundation argued persuasively that the location of the Hawks in the police cannot be constitutionally compliant, certainly not while the control and management of the police resides with the National Commissioner. Steven Budlender, representing three NGOs, conceded under questioning by the committee that it is not legally impossible to locate the Hawks in SAPS but pointed out that it will be very difficult to do so.

The major part of this difficulty would appear to be that the executive is very comfortable with the Minister setting police policy and the National Commissioner taking control and management responsibility as a political appointee. While this is so, Gon is in practical terms right in her submission: Hawks answerable to the National Commissioner, the accounting officer of SAPS, can not and will not pass constitutional muster because of the structural and operational opportunities for political interference and influence that are inherent in the system as it is and as it will remain after the tweaking envisaged in the Bill by the executive.

At Mangaung, Luthuli House wants to tick the box next to the Polokwane resolution that gave birth to the Hawks. It would be far better if ANC branches embrace the essentially African notion of an Anti-Corruption Commission. Whether they are able do so in the prevailing circumstances remains to be seen.

Paul Hoffman SC (lead counsel for Hugh Glenister)
27th April 2012