Businessman and anti-corruption lobbyist Hugh Glenister and his advocate, Paul Hoffman, are set to ask the public protector and the Human Rights Commission to intervene in the processing of the contentious SA Police Service Amendment Bill.
But the Department of Police remained adamant on Tuesday that the bill would pass constitutional muster.
Hawks boss General Anwa Dramat advised Glenister to study the current provisions of the bill, which governs the Hawks anti-corruption unit, insisting that it would address his concerns over whether the body would be allowed to act without fear or favour.
The Department of Police briefed the National Council of Provinces’ select committee on security and constitutional development on Tuesday on the changes made to the bill, which was passed in the National Assembly last month. The bill is now before the NCOP for consideration.
The National Assembly’s police oversight committee introduced several changes to the bill to boost the independence of the unit, giving its head control of its budget and ensuring the Hawks boss can be fired only after a judicial inquiry has found this step to be warranted, among others.
The bill, which is aimed at restructuring the Directorate for Priority Crime Investigation – better known as the Hawks – in line with the Constitutional Court’s Glenister ruling, has generated heated debate, with the ANC claiming it gives the unit sufficient independence as demanded by the court and the opposition asserting that the bill is a minimalist attempt to meet the requirements.
A major concern of those opposing the bill is the decision to leave the unit in the police service, with the head of the unit being accountable to the minister of police.
Glenister, who won a lone campaign last year to challenge the legislation which disbanded the Scorpions, has claimed, along with a number of organisations, that it would be “deadly” to put the Hawks into the SAPS.
However, the Secretary of Police, Jenny Irish-Qhobosheane, who took NCOP MPs through the bill, stressed that the Constitutional Court had ruled that the legislation must provide for an adequate measure of, not full, independence for the Hawks.
“We need to stress upfront that the court never, at any point, spoke about full independence… they were talking about adequate independence,” she told the committee.
“The Constitutional Court found that the creation of a separate crime-fighting unit within the SAPS was not in itself unconstitutional.
“The placement of the Directorate for Priority Crime Investigation was not something the court was prepared to rule on. It was not an issue that it was unconstitutional because it was in SAPS. It was on other issues around which the court found it to be unconstitutional.”
Irish-Qhobosheane said the Constitutional Court had considered a number of international conventions regarding the independence of corruption-fighting units.
“If one looks very closely at the Concourt judgment… and looks at the references used, including research by the Organisation for Economic Co-operation and Development (OECD)… they state that there is no blueprint on the best practice for this, but they set out conditions for independence.
“It is important to stress that not even the OECD is talking about complete independence, but talks about the necessary independence,” she said.
Irish-Qhobosheane reiterated that the major issues considered by the Concourt were whether the Hawks had the operational and structural attributes required for an independent anti-corruption unit; the security of tenure and remuneration in the unit; and accountability and oversight by a ministerial committee.
Asked by Cope MP Dennis Bloem for clarity on the role of the police minister in the unit, Irish-Qhobosheane said: “The Concourt judgment clearly says that in our democracy there is always going to be an executive who has some authority. In the instance of the Scorpions, it was the minister of justice, and in the instance of the police, it is the minister of police. What is not required is full and complete independence where that executive has no role.”
Irish-Qhobosheane said removing the Hawks from the minister’s authority was not seen by the Concourt as necessary for adequate independence.
Hoffman said on Tuesday he was in the process of formulating letters to Public Protector Thuli Madonsela and the HRC to ask for their input, with a view to “reversing the direction in which the bill is heading”.
“We are adamant this legislation must comply with the Glenister judgment, which means an operationally independent entity to deal with corruption.
“We are not putting our hands up and letting this go. It would be like kissing your country goodbye,” Hoffman said.
He said the Chapter Nine institutions had the power to do what the public protector had done with the Protection of State Information Bill by making a submission to Parliament. “If they are persuaded that I am right when I say an unconstitutional situation is being created, then, as institutions protecting the constitution, they should intervene,” he added.