The police on Wednesday dismissed calls to move the Hawks outside their control to give the corruption-fighting unit greater independence.
“The issue of where to locate the DPCI (Directorate Priority Crimes Investigation) has been dealt with extensively before. It is not our role to recreate those discussions,” police secretary Jenni Irish-Qhobosheane told MPs.
She stressed that in ruling last year that the Hawks' founding legislation was unconstitutional, the Constitutional Court did not demand that the unit be relocated outside the police.
“The court did not rule that the Hawks had to be outside the South African Police Service. The judgment does not require the creation of a new structure.”
Irish-Qhobosheane was responding to submissions by legal experts and policy think-tanks on a draft amendment to the SA Police Service Act to restructure the Hawks in line with the court's ruling in the Glenister case.
The majority judgment stated that South Africa's commitments under international treaties obliged it to have an independent anti-corruption unit, and faulted the act for failing to insulate the Hawks adequately from interference.
But Irish-Qhobosheane said international best practice did not offer a standard definition of independence and it was an accepted fact that “anti-corruption bodies do depend on and account to those in power”.
She argued nonetheless that the bill satisfied the demands of the court by scaling back the role of the ministerial committee and giving Parliament the final say over the unit's policy directives.
In public hearings last week, constitutional law expert Pierre de Vos cautioned that the draft act still left too much scope for meddling by members of the executive – who might themselves become subject to investigation.
This was because the ministerial committee could still issue instructions to the Hawks' operational committee, providing a “back door” for political pressure to be brought to bear on the unit.
De Vos also argued that said it was hard to see how legislators could leave the Hawks in the police, and satisfy the court's call for a reasonable perception of independence.
The Constitutional Court gave Parliament 18 months to amend the legislation, leaving lawmakers until September to meet the deadline.
The location of the unit has been under debate for years.
In 2009, Parliament disbanded the Hawks' predecessor, the Scorpions in line with a resolution taken at the ANC's Polokwane conference in 2007, despite its conviction rate of more than 90 percent.
The Scorpions were located in the National Prosecuting Authority but the political argument was made that locating an investigative unit within a branch of the judiciary interfered with the separation of powers. – Sapa