Quote of the week

  1. The Speaker may give a ruling or frame a rule in respect of any eventuality for which these rules or orders of the House do not provide, having due regard to the procedures, precedents, practices and conventions developed by the House and on the basis of constitutional values and principles underpinning an open, accountable and democratic society.
  2. A rule framed by the Speaker remains in force until the House, based on a recommendation of the Rules Committee, has decided thereon.
National Assembly Rule 6
1 September 2016

Why legal safeguards alone cannot protect independence of the Hawks

The Constitutional Court has now twice declared invalid certain sections of the South African Police Services Act because the Act failed to establish an independent corruption fighting unit as required by the Constitution. Despite these interventions by the highest court in South Africa, it is far from clear that the Directorate for Priority Crime Investigation (known as The Hawks) always make decisions in an independent and impartial manner. The Hawks may be legally independent, but in reality it might be controlled by a patronage faction within the governing party.

On 27 November 2014 the Constitutional Court, in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others, for the second time declared invalid several sections of the South African Police Services Act in an attempt to secure the independence of the Hawks and to insulate it from political pressure.

One of the most important effects of the decision was that it nullified parts of section 17D(1) of the South African Police Services Act which, in the words of Chief Justice Mogoeng, had rendered “the anti-corruption character of the [Hawks] dependant on whatever the Minister [of Police], in the exercise of her discretion, want[ed] it to be”.  The Court also confirmed that the Hawks had a legal duty to investigate specific offences created by the Prevention and Combating of Corrupt Activities Act.

The Constitutional Court judgment delivered a potentially devastating blow to politicians and other powerful individuals in the business world (whether they live in South Africa or Dubai) who may have thought that they would be protected from being investigated by the Hawks for alleged involvement in corruption – as long as they retained the support and protection of the President and the Minister of Police.

In theory the National Head of the Hawks – and not the Minister of Police – now has the discretion to decide which of the national priority offences to investigate (and which suspects to investigate) for corruption. With this move, the Constitutional Court seemingly empowered the Hawks to pursue the most powerful individuals in the country without fear, favour or prejudice.

If one happened to be corrupt, the judgment would have come as a terrible shock.

As long as the Hawks was headed by a person of impeccable integrity and honesty, the corruption fighting unit would be able to pursue all corrupt politicians and powerful individuals in the business world fearlessly and impartially. This means that corrupt politicians and powerful individuals in the business world had everything to gain by ensuring that a politically pliant and compromised person became the head of the Hawks.

It may therefore not come as a surprise to hear that the Minister of Police began the process to suspend the Head of the Hawks, Anwa Dramat, on 9 December 2014, barely two weeks after the Constitutional Court removed the Minister’s power to determine, in effect, who the Hawks may investigate. Dramat, who had previously displayed a degree of honesty and a certain willingness to resist political pressure, eventually resigned in April 2015 after severe political pressure was brought to bear on him and after the Minister reportedly offered him R6 million in “severance payment” to go quietly.

The Minister of Police appointed the apartheid cop, Major General Mthandazo Berning Ntlemeza, as the head of the Hawks in September 2015 to replace Dramat, despite the fact that earlier in the year Pretoria High Court Judge Elias Matojane had described Ntlemeza as lacking “integrity and honour”.

When the Hawks last week sent a letter to the Minister of Finance, Pravin Gordhan, requesting him to present himself to them in order to deliver a warning statement for breaches of several legal provisions which do not create criminal offences, it raised serious questions about the independence and competence of the Hawks.

Is it possible that the Hawks (or any other body) whose independence is guaranteed by the Constitution or by other legal provisions may not in fact be as independent as the law requires it to be? Put differently, if the law protects the independence of a body like the Hawks, can that body nevertheless be swayed by political or other pressure to act in a politically partisan manner to advance the factional interests of a certain group of politicians and/or powerful individuals in the business world?

This is an important question that goes beyond the immediate behaviour of the Hawks. The independence of the judiciary, chapter 9 institutions, the National Prosecuting Authority (NPA) and other constitutional bodies are all legally protected. If these bodies could so easily be “captured”, it would mean that there were few effective safeguards in place to protect South Africans from patronage politics.

Structural safeguards in the Constitution and other legislation protect all independent bodies from political pressures and manipulation. Of course, each independent body is protected differently and to a different degree, but in the absence of structural safeguards, it may well become impossible for individuals within an independent institution to act without fear, favour or prejudice and to act in an honest and fearless manner.

Structural safeguards are important as they protect those who make decisions in independent bodies from influence and interference by the legislature, executive, or by powerful individuals in the business world. Such safeguards protect individuals from impermissible or unlawful pressure.

If politicians or other powerful role players are allowed to interfere in the decisions of an “independent” body, or if politicians are allowed to remove the head of the independent body for not complying with their unlawful instructions to act in a certain way or to refrain from acting in a certain way, the body will not be independent.

This is exactly the reason why the Constitutional Court declared invalid parts of section 17(D)(1) of the South African Police Services Act, which allowed the Minister of Police to decide what cases the Hawks could and could not investigate.

The structural independence of many bodies are specifically protected in the Constitution. For example, as far as the judiciary is concerned, section 176 of the Constitution provides security of tenure for judges and state that the salaries, allowances and benefits of judges may not be reduced. Section 177 allows for the removal of judges only in very specified grounds and then only with the support of two thirds of the members of the National Assembly.

But structural safeguards on their own will not ensure that individuals act in a fearless and impartial manner. A body can enjoy the most rigorous structural protection, but may still be swayed by political and other pressures because the individual person who makes the decisions is dishonest, lacking in integrity or unwilling or unable to resist political pressure or financial inducement.

It is for this reason that the finding by the Pretoria High Court that the newly appointed head of the Hawks lacked “integrity and honour” goes to the heart of the matter. The fact that Major general Ntlemeza has been found to have acted in bad faith and thus that he had pursued ulterior motives in a dishonest manner, raises questions about whether the head of the Hawks will be able to act in a fearless and impartial manner in other politically charged cases.

Will the head of the Hawks act impartially – and hence independently – when making a decision on whether to investigate or not to investigate someone – regardless the wishes of politicians and powerful individuals in the business world and regardless of what may or may not be in the best interest of the Minister of Police or the President of the country?

It is for this reason that bodies in which the head of the institution is responsible for the most important decisions that body make (the Public Protector, the Hawks, the NPA) are extremely vulnerable to being “captured”.

The independence of such a body could easily be compromised by the appointment of a person who lacks integrity and honour, an intellectually incurious person, a person who lacks a work ethic, or a person who is willing to take instructions from individuals who wish to protect themselves from the law (or can easily be pressured or persuaded by financial inducement to take such instructions).

The position of the judiciary is therefore fundamentally different from that of other independent bodies like the Hawks, the Public Protector or the NPA. While these bodies could easily be “captured” with the appointment of a dishonest or pliable person as its head, it is not possible to “capture” the judiciary in this manner.

When I last checked there were about 300 judges in South Africa. In the absence of a suspension of the Constitution it would not possible to remove all 300 judges from office because they happen to be honest and have integrity and can therefore not be pressured into advancing the political interests of a specific political faction or business group in South Africa.

Given the fact that the body who appoints or recommends judges – the Judicial Service Commission (JSC) – is comprised of 23 people and given, further than candidates for appointment are subjected to a gruelling public interview, it is close to impossible to stack the judiciary with intellectually incurious and dishonest judges in the short to medium term (if ever).

While the JSC does not always make wise appointments, and while political considerations do play a role in the appointment of judges (as, I have argued elsewhere, politics should play a role in this process), the vast majority of judges always act with integrity and honesty. As we have seen with the Constitutional Court judgment in the Nkandla case, most judges are also fearless and make decisions based on the facts and the law as honestly and impartially as they can – no matter how high the political stakes and no matter how powerful the litigants.

Unfortunately, the same cannot be said for the Hawks.

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