Can the Hawks be independent and subject to political control?

Meanwhile back in the legal realm (and perhaps a bit more pertinent to the question of whether our government will degenerate into a full-on kleptocratic state or whether the more greedy and rapacious elements in the ruling party and big business will be held in check by the fear of being investigated, prosecuted and sent to jail for corruption), few people have commented on the fact that the National Assembly has passed a Bill purporting to address the constitutional concerns about the lack of independence of The Hawks.

When a draft Bill – purporting to give effect to the Glenister judgment – was first tabled, it was rightly met with howls of protest. The first version of the draft Bill clearly did not comply with the Glenister judgment (a judgment which ordered Parliament to create a truly independent corruption fighting unit that would be free from potential political influence and interference). The first draft was substantially changed (after a public consultation process in which many lawyers and civil society groups – including myself – took part) and the new version is much improved.

But the question is whether these amendments will bring the legislation in line with the requirements for independence set out by the Constitutional Court in the Glenister judgment. This inquiry must proceed from the sad but true assumption that we will not begin to root out corruption (which is engulfing both the public and the private sector) unless there is brave, strong and honest political leadership on the issue. (Brave leadership is needed because thsoe politicians who go after all the corrupt politicians and business people will be left vulnerable and exposed to another Polokwane Putsch.)

Sadly,  such leadership is currently entirely absent in South Africa. ANC leaders and big business are benefiting from the current inertia, so The Hawks will probably not change much. Where the rooting out of corruption is being pursued it seems to be done for political purposes to gain an advantage in factional battles. Where corruption is about to touch those too closely connected to the in-power faction of the ANC, the protection networks kick in and nothing happens to the corruptors. This is not surprising given the fact that our President’s former financial advisor was convicted of soliciting a bribe on behalf of the President and of actually bribing the President and given the manner in which our President’s family and associates have financially benefited since his tenure as President.

It is therefore also not surprising that those who have politically fallen out with the President (like Julius Malema) are being pursued for involvement in corruption while others (like the Minister of Police who allegedly benefited corruptly from a secret police slush fund) who are close to the President seem to be untouchable. This is an election year for ANC leaders and we all know the contestation for leadership positions inside the ANC is so heated at least partly because different factions are trying to get their hands on state power in order illegally to dip into the state coffers. While some within the Cosatu leadership still see this as an ideological fight between left and right, many others (including the SACP) have given up on any pretence that this is an ideological battle: instead its a battle about who are going to be in (to get their hands on state resources) and who are going to be out (and will not become rich). Money talks, and one has potential access to vast amounts of money if one controls the state.

In a one party dominant democracy such as ours, one in which corruption has become part of the system of political patronage that can assure one victory at political party leadership contests and one in which other parts of the state (like the Police Service and Intelligence Service) have been captured by a certain political faction, even the best and most independent corruption fighting unit will not be able to stem the tide. The debate about the new Hawks Bill might therefore well be no more than academic. But given these precautionary remarks, it is still important to test whether Parliament will honour the Constitution and will pass legislation that complies with a Constitutional Court judgment or whether it will try and ensure that the executive retains political control over the Hawks while trying to give the impression that it is complying with the judgment.

The good news is that some telling and important improvements have been made to the draft Bill since the last draft served before the Portfolio Committee, strengthening the independence of the Hawks. The bad news is that the new draft retains ultimate political control over the Hawks (and the ability to influence it) in the hands of the executive and hence (currently) in the hands of President Zuma and his friends and family members.

The Bill shifts control over the Hawks away from the Police Commissioner to the Head of the Hawks. For example, it now states that if there is a dispute between the Head of the Hawks and the National Commissioner on whether criminal conduct falls within the mandate of the Hawks, the Head of the Hawks will have the final say “in accordance with the approved policy guidelines”. The draft also now requires all members of the Police to cooperate with one another. (Whether ordinary members of the SAPS will obey such a requirement is, of course, another matter, especially when the Hawks investigate criminality within the Police Service.)

As some of us proposed in submissions made to the Portfolio Committee, the new draft Bill now requires the head to be a South African citizen who must be a fit and proper person with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned. The Head will also now be appointed for a non-renewable fixed term of not shorter than seven years and not exceeding 10 years to be determined at the time of appointment.

Unfortunately, there is still a serious potential problem with the appointment process as the Head, Deputy Head and Provincial Heads of the Hawks will be appointed by the Minister of Police in concurrence with the cabinet. This means the leadership of the governing party – the very party (or faction within the party) whose members might fear exposure from vigorous investigation by the Hawks – will decide who should be appointed to all the leadership positions in the Hawks. The Head of the Hawks is given increased powers, so who is appointed as the Head is absolutely pivotal.

If a political appointment is made or if somebody is appointed because he is believed to be trusted by the President and his close associates, this would leave the body open to political influence and manipulation by the powerful political faction within the governing party. Unless a truly independent person is appointed, there is no independent Hawks. So allowing the Minister and the cabinet – about as politicised an appointments process as one could find – to appoint the leadership of the Hawks is like allowing Radovan Krejcir to appoint South Africa’s judges or Julius Malema to appoint the head of tender committees in Limpopo.

Other provisions are more promising. The job security of the members of the Hawks is partly protected as the new draft states that any disciplinary action against anyone in the Hawks (except its head) must be considered and finalised within the Directorate’s structures and none of these members may be transferred or dismissed from the Directorate, except after approval by the National Head of the Directorate. Once again: if the Head of the Hawks is independent, then this safeguard will be sufficient. If he or she is appointed by Nathi Mthethwa and the cabinet, it will not be sufficient as the leadership of the Hawks will be political appointees who are acceptable to a certain faction within the ANC, which means they might very well be people who will understand that some politically connected individuals are untouchable and may never be investigated for corruption.

Another improvement is that the Minister would only be allowed to remove the Head of the Hawks because of misconduct; on account of continued 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. An inquiry must be led by a judge or retired judge who will be appointed by the Minister after consultation with the Minister of Justice and Constitutional Development and the Chief Justice. This removal process is not immune from manipulation (as the criteria of “efficiency” is extremely vague and as the Minister may appoint a judge perceived to be politically aligned and pliant to do the investigation).

The wording of the section at present also does not actually require that the judge make an adverse finding against the Head of the Hawks before he or she is fired. This means that if the politicians are truly desperate they can institute an inquiry, and even where the Head of the Hawks was  exonerated by such an inquiry (as was the case with Vusi Pikoli), the Minister would still be able to fire him.

The Head can also be removed from office by the National Assembly after a committee of the National Assembly has found that he or she is guilty of misconduct, incapacity or incompetence, but only if the Assembly has supported the removal with a two thirds majority.

The draft also now states that a member of the Directorate shall serve impartially and exercise their powers or perform their functions in good faith – although it does not state that the Hawks should act without fear or favour. In other words, there is no explicit provision guaranteeing the independence of the Hawks.

Once again, in an attempt to fudge the issue, the draft now contains a provision which states that no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct a member of the Directorate, in the exercise, carrying out or performance of his or her powers, duties and functions. However, crucially, this is not backed up by making clear that interference would constitute a criminal offense. If the Minister or the President thus interferes with the Hawks there will be no possible criminal sanction with which to threaten them.

In the Glenister judgment it was found that one of the biggest problems with the Hawks was that a Ministerial Committee could oversee the body and that policy guidelines could be adopted by this committee which – if misused – could ensure that some people would be investigated while others would be protected from investigation. This problem has not been addressed.

The draft states that the Hawks can investigate all “national priority offences, which in the opinion of the National Head of the Directorate need to be addressed by the Directorate,” but these are made subject to “any policy guidelines issued by the Minister and approved by Parliament”. The Hawks would also be able to investigate “selected offences not limited to offences referred to in Chapter 2 and section 34 of the Prevention and Combating of Corrupt Activities Act, 2004 ( Act No. 12 of 2004)”. But the draft is silent on who will select these offenses and on what basis. Will the Hawks be bound by policy guidelines issued by the Minister in determining which corruption cases it is allowed to investigate? As the draft stands (and perhaps merely because of really atrocious drafting and not malice), it is unclear where final authority lies. If it is with the Minister, the draft Bill fails to comply with the Glenister judgment.

As elsewhere in the draft, the drafters tried to marry the notion of political control over the Hawks by the Minister of Police with the requirements of independence. One suspects that this is an impossible task to achieve – the Hawks cannot be BOTH independent AND directly or indirectly controlled by the Minister of Police and the cabinet.

This is further amplified by the fact that the exact relationship between the Minister and the Head of the Hawks is never spelt out. Where there are no clear boundaries to protect the Hawks from ministerial influence or interference, the temptation to interfere politically with the Hawks will be great. The daft is silent about what will happen if Minister Mthethwa orders the Hawks, say, to stop investigating corruption associated with Richard Mdluli and with the slush fund allegedly used corruptly to pay for a wall that was built around the home of the Police Minister.

This brings us to a weakness in the Glenister judgment itself. In that judgment it was stated that a truly independent anti-corruption fighting unit could be situated either within the Police (reporting to the Minister) or outside it. I suspect that this view is not tenable. As soon as the anti-corruption fighting body is led by a political appointee who reports to a politician (whose colleagues might well become the subject of corruption investigations or who might himself be the subject of such an investigation) then there can be no question of a body free from political influence and interference and hence no question of a truly independent body.

This revised draft Bill is much improved on a previous version. The problem is that it is not clear that the Bill will safeguard the independence of the Hawks. Just as someone cannot be half pregnant, an anti-corruption fighting body cannot be both independent and subject to the political control of a politician. Which means, if passed it will not have much of an impact on the fight against corruption.

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