Public hearings on the proposed bill commenced on Monday. According to the Democratic Alliance, feet-dragging by the drafters of the proposed legislation means the new legislation falls way short of what the courts required Parliament to come up with. By SIPHO HLONGWANE.
In March last year, the Constitutional Court ruled that the legislation which had done away with the Directorate of Special Operations (or Scorpions) and replaced it with the Directorate for Priority Crime Investigations (the Hawks) had created a body that was not sufficiently independent. The court ordered Parliament to take 18 months to devise new legislation that would satisfy South Africa’s international treaties on corruption busting.
Writing for the majority, deputy chief justice Dikgang Moseneke said: “The impugned legislation provides in circuitous words that when applying its terms, the need to ensure that the directorate has the necessary independence to perform its function should be recognised and taken into account. The necessary independence is not defined. In order to understand the content of the constitutionally imposed requirement of independence we have to resort to international agreements that bind the republic.”
In other words, the Hawks crisis was created by the government’s own cavalier attitude to the finesse of law and governance. It is an attitude that has created numerous legal problems for President Jacob Zuma and his staff of legal advisors.
Now, the 18 months is almost up, and the South African Police Service Amendment Bill will be deliberated upon in about two weeks. Staring on Monday this week, Parliament will accept presentations from the public. Today the DA is expected to make submissions alongside Hugh Glenister, the man who brought the case before the Constitutional Court in the first place.
According to the DA’s shadow minister for police Dianne Kohler-Barnard, there is widespread opposition to the bill from the citizenry.
“Organisations such as the Institute for Security Studies, the Institute for Accountability in Southern Africa, the Helen Suzman Foundation, the Open Society Foundation, the Legal Resource Centre, Corruption Watch and the Council for the Advancement of the South African Constitution all argue that the bill is inconsistent with the Glenister judgment and that the Hawks as a result is not sufficiently independent or shielded from political interference,” she said in a statement.
The DA’s principal objection to the new bill is that it does not cure the problem of independence that the Constitutional Court highlighted. The Scorpions were largely civilians who reported to the National Prosecuting Authority, which is an organisation with constitutionally prescribed independence from the ministry of justice, and thus does not fall under the authority of the Cabinet. The Hawks are a branch of the police and the police ministry, and thus are not independent from Cabinet as the Scorpions were.
Kohler-Barnard said that the basic requirements of the ruling were not met by the proposed bill.
In her statement she mentioned many objections, including that the appointment process for the head of the Hawks is the overall responsibility of the minister of police in concurrence with other Cabinet ministers; the ministerial committee retains the right to co-ordinate the activities of the Hawks; the budget remains under the control of the national police commissioner; the salaries and benefits of the head of the Hawks and other senior staff are determined by the police minister; and the national-priority offences to be investigated are determined by the police minister.
Basically, the problem is that the police minister – and by extension, Cabinet – have way too much say in what the Hawks can or cannot do, and thus leave the directorate extremely vulnerable to political interference.
In an interview with Daily Maverick, Kohler-Barnard said she does not believe the police can be objective, because their very basic job description enjoins them to obey any orders that are given. “When the police minister says ‘jump’ to the police, they have to reply, ‘how high?’,” she said. “So of course they are not going to be independent.”
Kohler-Barnard blamed what she has called a bad bill partially on the fact that she believes the ANC government is not interested in creating a truly independent corruption-busting unit, and partially on the fact that the drafters of the bill dragged their feet until the last moment before attempting to rush the bill through court.
“You can be sure that they (the ANC in Parliament) will not agree to anything that has been independent, because the Scorpions went after too many top ANC leaders, including (President Jacob) Zuma. It’s been very difficult for us to prepare because they haven’t been working on the bill,” she said. “They blamed it on staff shortage. Well, why didn’t they hire more staff all along? Now they are going to rush this through Parliament, otherwise we’ll be in contempt of court.”
In a statement on the Hawks Bill, Corruption Watch acting head of investigatory and legal services Mary-Anne Munyembate said a corruption-busting body without sufficient independence would not have the public’s confidence.
“The public needs to have confidence that if they report a case of corruption to us and we, in turn, report it to the Hawks, the unit will be sufficiently independent to carry out its functions without political interference or influence. Public confidence is thus key.” DM
- How the ConsCourt stung the ANC – and how the ANC will get around it (legally) in Daily Maverick.
Photo: Gagged? Public confidence in the Hawks Bill is essential. REUTERS.