As is its wont, the Department of Justice has waited until everyone is distracted by the year end festivities before slipping into the public domain a little information regarding an important matter. This time it concerns the official response to the judgment of the Constitutional Court in the Glenister matter. Previously a whole clutch of bills aimed at radically “transforming” the judiciary was gazetted in mid-December 2005 only to be ignominiously withdrawn some eighteen months later, after widespread critical responses that included the disapproval of all living chief justices.

Bob Glenister has made a crusade of his opposition to the establishment of the Hawks in place of the Scorpions as the institutional weapon of choice of South Africa in the fight against corruption in high places. He has litigated in several courts and eventually, by the narrowest of margins, managed to persuade the Constitutional Court that the Hawks law does not pass constitutional muster when it comes to protecting human rights against the ravages of corruption. The legislation was also found wanting when it comes to complying with the country’s international obligations to maintain an independent corruption fighting entity. The fact that treaties that bind SA are worded to require such an entity ought to alert the authorities to the need for capacity to act “without fear, favour or prejudice”, or independently, when it comes to countering the cancer of corruption and its corrosive concomitants.

Instead of keeping the need for independence in mind, the executive and national legislature opted in 2009 for the Hawks, a unit within the SAPS, which is unarguably under the political control of the Minister of Police. Bearing in mind that a former National Commissioner of Police, Jackie Selebi, is serving time for corruption and his successor, Bheki Cele, is under investigation by a board of inquiry for the similar malfeasance, it is obvious that SAPS is hardly the correct locus for an anti-corruption unit.

All of the bells and whistles attached to the Hawks did not impress the majority of the justices of the Constitutional Court. They found, in March 2011, that the Hawks lack the necessary structural and operational independence to render them compliant with the requirements of the Constitution, our supreme law. They require remedial legislation by September 2012.

In an effort to address the structural problem, it is now rumoured in the corridors of power that the intention is to move the Hawks out from the control of the Minister of Police and into the Special Investigations Unit of the National Prosecuting Authority (NPA). The NPA was where the Scorpions resided and nobody ever suggested that it was inappropriate for them to find themselves reporting to a public servant, the National Director of Public Prosecutions (NDPP), rather than to a politician. The NDPP is of course bound to implement the lawful policies of the government of the day, but she or he also has prosecution policy making power. This is a unique feature of the office of the NDPP. All other policy is made by the politicians responsible for making laws and running departments of state in a politically accountable fashion. All law and policy has to be compliant with the Constitution, on pain of being struck down as invalid. This is what happened to the laws that created the Hawks.

As the Special Investigating Unit (SIU) is part of the NPA it could cogently be argued that it is appropriate to house the Hawks in it. The SIU has done a great deal of good work on issues involving corruption and could certainly use the extra hands at present employed in the ranks of the Hawks as police officers with a talent for fighting corruption through appropriate investigations, as well as preventing and combating the scourge wherever it is found.

The difficulty arises at the operational rather than structural level. Operational independence is of course a sine qua non for the successful combating of corruption, especially corruption in high places. The operational exigencies of the SIU are such that it is dependent upon a presidential proclamation to get to open a case.

The nation has recently been reminded of the effects of this requirement in the debacle surrounding the appointment and sudden resignation of Adv Willem Heath as head of the SIU. He previously headed this unit during the Mandela and early Mbeki presidencies. When Heath approached Mbeki to be made part of the joint investigating team that was required to look into allegations of corruption surrounding the arms deals, Mbeki refused to allow the SIU to be part of the investigation. He opted instead to allow three other institutions to rather ineffectually tackle the task. Heath was ignominiously fired, left without a pension and replaced as he could not, according to a decision of the Constitutional Court, continue to work in a non-judicial capacity while he was still a judge. Many have speculated that his inappropriate outburst against Mbeki, which led to his recent resignation, are as a result of his bitterness at being excluded from the arms deals investigation and being relieved of his SIU duties by Mbeki. The situation could have been addressed by his leaving the Bench in order to render the work done as head of the SIU constitutionally compliant. Heath’s perceived eagerness then, to get to the bottom of the allegations of corruption still swirling around the arms deals now, led to his removal as SIU head by Mbeki and a prolonged sojourn in the private sector.

The recounting of this small episode of recent legal history illustrates the difference between operational and structural independence. An entity dependent upon a presidential proclamation to get its work is not an independent entity, no matter how structurally independent it may be, even to the extent of being (improperly) headed by a person as independent and impartial as a judge.

It would accordingly not amount to proper compliance with the requirements of the Glenister judgement to house the Hawks in the SIU as it operates at present. Those who may be thinking of doing so should think again. Anything other than a complete overhaul of the operational capacity of the SIU will not suffice and the remedial legislation necessary to give effect to the Glenister judgement will be vulnerable to yet another constitutional challenge, one which Glenister himself will not hesitate to launch.

If a truly independent corruption busting entity is to be formed, rather seek inspiration elsewhere in Africa, as the Chief Justice has urged, and create a new Chapter Nine institution called the Anti-Corruption Commission. An entity as independent and as well protected in terms of personal, structural, operational and sapiential authority, as the Office of the Public Protector is needed. An entity that is able to dedicate itself to preventing, combating, investigating and educating both private sector and public administration players on the thorny issues that surround corruption in high places is needed.

The essential question is whether the long suffering public can expect parliament to vote for creating an effective anti-corruption entity. SA deserves the best possible strategy to deal with this national priority. Failed statehood beckons if the best steps available are not taken. The task at hand is to persuade turkeys to vote for Xmas. It is no easy matter.

Paul Hoffman SC
30th December 2011