The Helen Suzman Foundation clarified its position on the Hawks bill before Parliament on Friday, saying it would be wholly constitutional to locate the elite corruption-fighting body outside the police.
The foundation said such a move would not be in breach of Section 207 of the Constitution, which states that the national commissioner must exercise control over policing, and would in fact be wise.
It argued that the draft instead risked falling foul of the Constitution by seeking to grant the unit independence - as demanded by the Constitutional Court's judgment in the Glenister case last year - while keeping it in the police force.
“The Helen Suzman Foundation's reading of Section 207 of the Constitution is that the SA Police Service (SAPS), in its entirety, must be accountable to the National Commissioner,” researcher Lewis Mash said.
“To house a unit within SAPS and try to shield them entirely from the national commissioner's management and control would be unconstitutional, for want of compliance with Section 207.
“This reading is supported by Section 207(4), which does provide for provincial commissioners to have some measure of independence, but limits that independence “subject to the power of the national commissioner”.
At parliamentary hearings on the bill this week, several presenters tried to impress on lawmakers that the current version of an amendment to the SA Police Service Act, drafted in response to the judgment, fell far short of satisfying its requirements.
They said it would still leave the unit prone to political meddling, notably because its head would be appointed by the minister of police.
The presentations reopened an old political debate that goes back to the ruling party's Polokwane conference on whether the unit should be located within the police force or elsewhere.
This is a key distinction between the Hawks and its predecessor the Scorpions, which fell under the National Prosecuting Authority (NPA).
Mash said the NPA option enjoyed the sanction of the court.
“The position of the Helen Suzman Foundation is that the Hawks cannot remain in the SAPS or the Constitution will inevitably be breached. The only way around this is to relocate them elsewhere,” he said.
“No constitutional amendment is required to achieve this. The Constitutional Court has clearly found that the Constitution, without any amendment, requires an independent anti-corruption unit, and that such a unit can be located outside the SAPS without any breach of the constitution. “ - Sapa