Another unconstitutional law on the horizon?

I was asked to prepare a memorandum on the draft amendments to the South African Police Service Act, purporting to give effect to the Constitutional Court judgment in the Glenister case. The Glenister judgemnt found that the abolition of The Scorpions and the creation of The Hawks was unconstitutional in several respects and ordered Parliament to fix the problem within 18 months. These amendments are a purported attempt to comply with the judgment.

In the memorandum I concluded that the proposed amendments fall far short of the minimum requirements as set out in the majority judgment in the Glenister case. (The full memo can be accessed here.)

What is clear from the draft is that there is no political will to create an independent body free from political influence or interference to fight corruption. It would be far too dangerous for the kleptocratic members of the political elite to create such a body, hence the minimalist attempts contained in the draft Bill which attempts to create a partly independent body, but one which will retain “sufficient” political control over it to ensure that the body does not investigate the “wrong” people.

But creating a partly independent corruption fighting body is like making a woman half pregnant – not something that seems possible at present. (Not that I am an expert on that particular score.)

As the Glenister judgment set out, at the heart of the inquiry is whether the body will be free from political influence and interference so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. What is essential in achieving this balance is to depoliticise the anti-corruption institution or institutions. To achieve this a body need not attain the kind of independence guaranteed for the judiciary (“full independence”), but it does need to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent – in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations – to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

The Bill opts of a “minimalist approach”, including amendments to several sections of Chapter 6A of the South African Police Service Act but retaining the DPCI, albeit in a slightly different format, instead of creating a completely new body. The amendments represent a rejection of a return to the previous position where the DSO was situated within the National Directorate of Public Prosecutions. The approach also rejects the option of creating an independent body outside the formal structures of the South African Police Service. This approach is not necessarily precluded by the majority judgment in the Glenister case (although the judgment did not deal with the difficulties regarding financial independence that will arise because of the non-independent National Commissioner of Police’s role as the Chief Financial Officer of the “independent” unit). As long as the amendments create an independent corruption-fighting unit free from potential political influence and interference, a body that – judged in its entirety – is not only in fact sufficiently independent but is also reasonably perceived as being independent, the amendments will comply with the judgment.

As it stands, an overall assessment of the proposed amendments suggest that the amendments fall far short of what is required by the Glenister judgment in several ways. This is because the amendments do not remove the potential for political influence and interference in the work of the Hawks because the new body is neither sufficiently structurally or operationally independent to and cannot reasonably be perceived as being so independent. The amendments provide far too much power for politicians to regulate the work of the unit, rendering it not sufficiently operationally independent. Neither is it sufficiently structurally independent because of lack of safeguards regarding security of tenure for all members of the unit as well as effective mechanism to report and investigate allegations of political influence and interference in its work. Both in fact and in terms of a reasonable perception of independence the proposals for a reconfigured Hawks fail to safeguard independence as required by the judgment. In this regard, the following are the main problems with the proposed amendments.

The amendments provide insufficient guarantees to safeguard the structural independence of the Directorate as it fails to provide security of tenure for all the members of the Directorate and fails to establish statutory secured levels of remuneration for all members of the Directorate.

In terms of a newly created section 17M all members of the Directorate remain members of the South African Police Service “with all the powers, duties and functions of other members of the South African Police Service”. Section 17G which states that the remuneration, allowances and other conditions of service of members of the Directorate shall be regulated in terms of section 24 of the Act (a section which allows the Minister to make regulations about the reduction in rank of members as well as the remuneration structure of members), falls short of the security of tenure for all members. As the majority judgment in Glenister made clear, in the absence of explicit provisions entrenching the employment security and remuneration levels of members of the Directorate, “individual member could be threatened – or could feel threatened – with removal for failing to yield to pressure in a politically unpopular investigation or prosecution”, which would be inimical to structural independence.

Ordinary members of the Hakws would therefore remain subject to the hierarchical structure and discipline of the SAP and could be removed by the National Police Commissioner (who is not an independent person). The National Commissioner would retain the power to “discharge” any member of the DPCI from the SAPS on account of redundancy or the interests of the SAPS. The Commissioner would also still be empowered to discharge a member of the service if, for reasons other than unfitness or incapacity, the discharge “will promote efficiency or economy” in the SAPS, or will “otherwise be in the interest of” the SAPS. Ordinary members of the Directorate therefore would therefore not be sufficiently protected in terms of job security as required by the Glenister judgment.

Moreover, although a newly inserted section 17DA provides limited protection for the employment security for the Head of the Directorate, and the newly inserted section 17CA(c) provides limited remuneration protection for the Head, Deputy Head and Provincial Heads of the Directorate, it contains no such protection for other members of the Directorate. This means that ordinary members of the Directorate will be subject to the ordinary remuneration regime of the SAPS in exactly the same manner as other members of the SAPS, rendering them insufficiently independent in a structural sense. This falls foul of the Glenister judgment as discussed in section 2.3.2.3 above.

The security of tenure of the Head of the Directorate is not sufficiently protected as required by the judgment as discussed in section 2.3.2 above. A newly inserted section 17DA deals with this matter, but provides wide discretion for the Minister in suspending and removing the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and then may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned. Subsection (3) allows removal from office by an address of the two Houses of Parliament for the same reasons as set out above. Where the Head is suspended, he or she shall receive no salary or such salary as the Minister will determine.

Four aspects of this provision might cause problems. First, any enquiry into the fitness of the Head of the Directorate to hold office will be conducted as the Minister sees fit. There are no formal requirements for how this enquiry should be conducted or who should conduct the enquiry. This wide discretion means that an enquiry could be conducted by the Minister him or herself or by someone in the Minister’s office watering down the safeguard of an objective determination on whether one of the four criteria for removal is in fact present. Second, the third requirement relating to the Head’s possible incapacity to carry out his or her duties of office efficiently, is exceedingly broad and not easily susceptible to objective determination.

The notion of efficiency renders the subsection overbroad and potentially allows the Minister to remove the Head of the Directorate if, in his or her opinion (or, in his or her stated opinion), the Head has not been efficient, opening the door for removal on non-objective grounds, which is not compatible with actual independence or perceived independence.

Third, when the Head of the Directorate is preliminary suspended, he or she could be suspended without a salary and could therefore in effect be punished even before he or she is formally removed, placing considerable potential power in the hands of the Minister to put pressure on the Head of the Directorate, and thus rendering the independence of the Head of the Directorate tenuous at best. Lastly, the two Houses of Parliament can remove the Head of the Directorate by “praying for such removal on any of the grounds” referred to above.

No enquiry is required in this regard and the wording is vague, which means the section could be interpreted as not requiring the two Houses of Parliament actually to have established as objective fact that one or more of the grounds listed is actually present. In one reading of this section, this would render this power as little more than the exercise of a political discretion which may not easily be reviewed by a Court, rendering the security of tenure and hence the independence of the Head of the Directorate.

These fears are reinforced by the heading of this section, which states that the section relates to “Loss of Confidence in Head of Directorate”. A “loss of confidence” is a subjective standard, not an objective standard, as it relates to whether the Minister or the Parliament had stopped having confidence in the Head of the Directorate and such loss of confidence could just as well relate to political reasons as to objective criteria reviewable by a court of law.

Despite the proposed amendments, the possibility of political influence and interference in the work of the Directorate looms large, both in fact and in terms of reasonable perceptions about such influence and interference. The requirements set out in the Glenister judgment (as discussed in section 2.2.3 above) have therefore not been met. Section 17CA(1) proposes that the Minister of Police, with the concurrence of the Cabinet, appoint the Head of the Directorate for a non-renewable term “not exceeding seven years”, while section 17CA(3) requires that the Deputy Head be appointed by the Head with the concurrence of the Minister of Police and section 17CA(4) requires that the Provincial Head of the Directorate to be appointed by the Head with the concurrence of the Minister of Police. This means that the Minister has a veto right over the appointment of the Deputy Head and the Provincial Heads of the Directorate.

No objective minimum criteria are prescribed regarding the skills, experience or commitment to independence of any of the men or woman appointed to these positions. In theory the Minister could appoint an outgoing member of Parliament of the governing party (or another political party) or a sitting member of the highest decision making body of the governing political party (or another political party), somebody without any police experience or someone embroiled in allegations of corruption, in any of these positions. Absent a mechanism that provides for safeguards against the appointment of individuals who are in fact or are perceived not to be politically partial, the perception may well be created that the Directorate is not in fact independent and will thus fly in the face of the requirement that the body should be independent in fact and in terms of perceptions.

The amendments also do not include any legally binding requirement that the Head of the Directorate or any other member of the Directorate need to fulfill his or her duties independently (or, alternatively) without fear, favour or prejudice. A proposed insertion of section 17E(9)(a) states that a member of the Directorate “shall serve impartially and exercise his or her powers or perform his or her functions in good faith” while section 17E(1) requires members to take an oath to “enforce the Law of the Republic without fear, favour or prejudice and, as the circumstances of any particular case may require, in accordance with the Constitution and the Law”.

There are several problems with this section. First, there is a distinction between serving impartially and acting in good faith, on the one hand, and being independent on the other. Second, there is no sanction for anyone not acting independently and impartially. Third, the oath seems to be at best ambivalent as it states that one needs to act without fear favour or prejudice but only “as the circumstances of any particular case may require” leaving open the possibility that this means that in certain cases one need not act so and need not act in accordance with the Constitution and the law if the circumstances of the particular case requires it.

A new proposed section 17D(1)(a)(A) states that the functions of the Directorate are, inter alia, to prevent, combat and investigate “in particular selected offences contemplated in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act.” It is unclear what these “selected offenses” are intended to be and who will select the offenses. However section 17D(1)(a) and 17D(1)(c) states that national priority offenses and other offences can be investigated at discretion of Head or if it is referred to the unit by the National Commissioner, but this remains subject to policy guidelines issued by the Minister (currently the guidelines are to be issued by the Ministerial Committee).

The insertion of a specific focus on charges in terms of the Corruption Act, goes some way to allay fears of political influence and interference. However, corruption is often closely aligned with other offenses such as fraud. The fact that the Minister therefore would retain broad discretion to issue policy guidelines on which priority crimes to investigate might potentially hamstrung investigations in which fraud and corruption are intertwined. Such a broad discretion provided to apolitical actors was not compatible with independence as required by the judgment.

The judgment required far more effective mechanism to protect members of the Directorate from political influence and interference, both prospectively and retrospectively. The judgment thus found that section 17L did not meet the requirements for independence in this regard as the retired judge empowered to investigate allegations of undue influence could only deal with retrospective complaints of interference. Curiously, the proposed amendments wholly fail to address these concerns.

Although it is proposed that section 17L(7) be amended to allow a retired judge to obtain information from the NDPP, there are no proposals to create a structure that ab initio prevents political interference in the work of the corruption-fighting unit. As the judgment found, in some cases irreparable harm may have been caused which judicial review and complaints can do little to remedy. More importantly, many acts of interference may go undetected, or unreported, and never reach the judicial review or complaints stage. That is why it was necessary to create “adequate mechanisms designed to prevent interference in the first place” as this was required to ensure that political interference does not happen from the start. This failure renders the proposed Bill unconstitutional.

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