The government is on a collision course concerning its wholly inadequate response to the judgment won by Bob Glenister in the Constitutional Court in March last year regarding the anti-corruption structures in South Africa. Having been given 18 months to pass remedial legislation deemed necessary by the Court, it has done nothing until the end of last month, when the SAPS Amendment Bill 2012, was published for comment. How government expects to properly process the Bill in the short space of six months is a mystery. The decision to “urgently” dissolve the Scorpions and replace them with the low flying Hawks took over two years – from Polokwane resolution to finalised legislation.

It is generally acknowledged that the Bill is of wide public interest and that a proper public participation process in its consideration is required. A press advertisement on 9 March indicates that the general public has only until 27 March to make written submissions to Parliament on the Bill. Quick thinking is needed.

The objective of the Bill is that Parliament, by passing it or some variation of it, will be paying attention to what the judgment requires – an independent anti-corruption entity that reasonably addresses the need to prevent, combat, investigate and provide public education on the tricky topic of corruption, especially so in government. It is not necessary that the body so formed should have prosecution powers as an independent National Prosecuting Authority (NPA) already exists as a “single prosecution service” for SA.

Although the judgment that must be implemented by September is a lengthy one, described by Professor George Devenish, an expert in constitutional and administrative law, as the most important judgment ever passed by the Constitutional Court, it is a relatively simple matter to glean from it the characteristics of the replacement of the Hawks (or Directorate of Priority Crime Investigation) that the majority of the Justices have in mind. The lack of structural and operational independence of the Hawks was singled out as the most significantly unconstitutional feature of their role as a police unit in the fight against corruption. This battle must be won if the nation is to prosper and overcome the issues of inequality, poverty and unemployment which dog progress despite the best efforts of government since 1994. Independence in this context means independence from political interference in the functioning of the body needed to replace the Hawks. Instead of creating a new entity, the Bill contemplates minimal tweaking of the positioning of the Hawks in SAPS. The unit remains within SAPS under the control of the Minister of Police (who is obviously a politician) who is given the power to suspend the head Hawk without pay, should he deem it fit to do so. In general terms, the ability of the Hawks to do their anti-corruption work without fear of the powerful, favour toward the friendly or prejudice to the public is hardly enhanced at all by any of the tweaking contemplated.

The Bill contains scant regard for other features that the Court highlighted. Best practice requires that anti-corruption bodies be specialised. This is so that they give their full attention to the cancerous scourge of corruption rather than giving it part time attention. The Hawks, both in their “before and after” the Bill incarnations are not specialists. They have to deal with whatever priority crimes they are tasked to tackle – which means that loading them with all the other priority crimes that exist – from poaching to human trafficking – will leave them little time or capacity to get to grips with the burning issues of tenderpreneurism, arms deals bribes, improper blurring of the line between party and state and other manifestations of corruption that are so prevalent in SA.

The track record of the Hawks indicates that they have little appetite for going after corruption in high places. General Anwar Dramat, the head of the Hawks, closed all arms deals files and refused to re-open them when an arms dealer, Ferrostaal, made public an analysis of the bribery in its deal with SA among others. Ferrostaal’s new clean management has offered to help with investigating in any way they can. The Hawks, and even Parliament, to their everlasting shame, raise spurious technicalities to avoid getting to grips with the admissions of bribery and corruption made on behalf of Ferrostaal. The mountain of paper evidencing BAE malfeasance has also defeated the Hawks, who had only one member of personnel available to work on this R35 billion investigation. The prospect of saving the country so large a sum as a result of a proper investigation manifestly leaves Dramat unmoved. His lack of independence and unwillingness to go after party leaders is on display for all to see.

Another feature which is not adequately addressed in the Bill is the need to give the anti-corruption body security of tenure. This is hardly attainable when a politician in the position of Minister of Police has the hiring and firing powers contemplated in the Bill. Adequate training and resourcing of the body contemplated by the Court are in the same category. The whole scheme of the Bill is redolent of a desire to continue with “business as usual” rather than to take effective measures to turn the tide of corruption that is engulfing the land.

It is highly unlikely that the Bill, if passed in its present form, will pass constitutional muster. But that ought not to be the point. The real issue is that the Glenister judgment affords an opportunity to put state of the art anti-corruption machinery in place so that a legacy superior to that of the Hawks and even the Scorpions can be left by an elite specialised, properly trained and resourced body that enjoys security of tenure and can independently take on the corrupt in high places. Instead of rising to the Court’s challenge government has chosen to re-arrange the deck chairs on the Titanic. The revamped Hawks will not be capable of stamping out corruption and the whole country will be the poorer for this.

Hopefully public involvement in the upcoming debate will give rise to a better idea than that contained in the utterly underwhelming Bill. We all know what fate befell the Titanic 100 years ago.

Paul Hoffman SC
15 March, 2012.