Johannesburg - Police Minister Nathi Nhleko’s attempt to have Hawks boss Anwa Dramat removed by Parliament has come temporarily unstuck – because of legislation designed to give him the power to take such action.
Nhleko finds his hands tied after the Constitutional Court in November deleted the subsection of the SAPS Act – which Parliament had twice tried and failed to bring into line with the constitution – that provided for the minister to suspend and ultimately remove the head of the Hawks.
The result is that only the provisions that allow for Dramat’s suspension and removal through a parliamentary process remain in place – leading Nhleko to appeal to the portfolio committee on police this week to step in and launch such a process.
This would immediately allow Nhleko to suspend Dramat legally.
Nhleko has performed a convoluted legal tap dance in defending his suspension of Dramat in December – after the Concourt had removed this power.
He has claimed, on the one hand, that the Concourt judgment did not take away his power, although the act as it now stands clearly says the Hawks head may be suspended only after the commencement of a parliamentary process for his removal.
On the other, Nhleko has said that he can rely only on provisions of the Public Service Act and handbook for senior management to launch disciplinary proceedings against Dramat.
This argument has been dismissed by the North Gauteng High Court, but Nhleko is appealing against this judgment, leaving Dramat’s suspension technically in force.
The court is to decide on Monday whether to grant an application by the Helen Suzman Foundation for an order requiring the minister to allow Dramat to return to work.
Nhleko has sought to cover his bases by roping in Parliament. Because the SAPS Act does not spell out the procedure for dealing with such a case, Parliament finds itself in uncharted waters without a compass.
The act says the minister may suspend the Hawks head only after the start of proceedings by “a committee of Parliament”. It does not specify which committee.
This uncertainty alone was enough to cause police committee chairman Francois Beukman to balk at launching the process requested by Nhleko in a letter to him on Thursday.
“The only authority in terms of the parliamentary framework that can make a decision, in the absence of clear guidelines, is the Speaker of the National Assembly,” Beukman said when the committee began discussing the matter on Friday morning.
He would write to Speaker Baleka Mbete asking for “guidance”.
Nhleko and Beukman also suggested there was a lacuna in the legislation: while the minister could not suspend the head of the Hawks without Parliament’s assistance, there was nothing in the act spelling out what should “trigger” the start of such a parliamentary process.
An obvious potential “trigger” would be conviction of a criminal offence by a court – which would meet the requirement for the Hawks boss to be found by Parliament to have been guilty of misconduct or no longer fit for his position.
Even the laying of charges would suffice for the process to be launched, pending the outcome of the case, but the National Prosecuting Authority has not done this. It received a report from the Independent Police Investigative Directorate (Ipid) almost a year ago on its probe into Dramat’s possible role in the illegal rendition of Zimbabweans.
The Ipid report is not in the public domain, but Nhleko appeared to confirm it cleared Dramat when he argued in his letter to Beukman that its conclusion might have been doctored in the face of evidence to the contrary.
This left the police committee with only Nhleko’s request, but no evidence before it, as a “trigger” for it to launch a process to remove the country’s most senior corruption buster.
The Constitutional Court, in the majority judgment penned by Chief Justice Mogoeng Mogoeng, was scathing of the drafting of the SAPS Act, which it had sent back to Parliament to be “cured” of its unconstitutional elements.
Referring to the provisions that allowed for the minister to remove the Hawks boss, Justice Mogoeng said these did not “provide even a modicum of clarity”.
It was also unclear what Parliament was expected to do after being informed, as the act said it should be within 14 days, of the minister’s decision.
“Not only is the section silent on what Parliament is supposed to do, it is also silent on how it is to do whatever is supposed to be done, if any, and on the time frames within which any action is to be taken,” Judge Mogoeng said.
It is clear from the wording that the drafters of the act – the previous incarnation of the police committee – wanted the minister to have unfettered power to remove the Hawks boss, and simply tacked on the requirement that Parliament informed of the decision, in an attempt to provide a parliamentary fig leaf for the power it was handing the executive.
Yet it was on the basis of this ability of the executive to pull the rug from under the head of the anti-corruption unit – which, among other things, would be expected to investigate the executive itself should it come across wrongdoing – that the Concourt last year found the act to be unconstitutional.
“It was really terribly drafted legislation, and they never thought about this so they didn’t put in the details,” said University of Cape Town constitutional law professor Pierre de Vos.
“It’s a bit unclear, which means that the legislation wasn’t drafted well, because they tried to fit a square peg in a round hole there.”
In trying to preserve precisely the executive power to interfere in the workings of the Hawks that the Concourt had found to be “inimical” to the unit’s independence, Parliament inadvertently made it much harder for Dramat to be removed, creating a legislative muddle from which it must now attempt to untangle itself.
Political Bureau