Johannesburg - President Jacob Zuma believes the more independent the Hawks are, the greater the danger of them becoming a law unto themselves.
In his response to the Helen Suzman Foundation (HSF) and businessman Hugh Glenister’s Constitutional Court challenge to amended legislation establishing the Hawks, Zuma warned that courts “cannot trench upon the separation of powers and aim to influence the conduct of the legislature and executive branches of government”.
“Without some control, accountability is an empty concept,” reads his Constitutional Court submission.
The Hawks replaced the Scorpions, which the ANC criticised as a law unto themselves.
Glenister has successfully fought numerous court cases to ensure the Hawks’ independence.
He now wants the Constitutional Court to declare the entire SA Police Service Amendment Act invalid and inconsistent with the constitution and that the Directorate for Priority Crime Investigation (DPCI), the Hawks’ official name, is not adequately independent.
But Zuma said: “However serious the threat of corruption and however dire the need for an independent DPCI to avoid government shielding itself against policing of corrupt members, the Hawks cannot be an absolutely independent stand-alone unit.”
According to Zuma, it is difficult to perceive why the integrity and independence of police officials investigating a murder should be a lesser goal than that of a police official investigating a R100 000 government tender bribe.
The HSF wants Hawks head Lieutenant-General Anwar Dramat to be as independent as Public Protector Thuli Madonsela and Auditor-General Kimi Makwetu.
Police Minister Nathi Mthethwa and his justice counterpart Jeff Radebe believe the Hawks do not need to be shielded from politicians’ influence but to be insulated from a degree of management by political actors threatening to stifle their independent functioning.
In their response to Glenister, Mthethwa and Radebe said no undue influence by national police commissioner General Riah Phiyega was possible in the Hawks.
However, Zuma said comparisons or analogies with chapter nine institutions are generally misplaced as none of them comprise relatively large numbers of people entitled to carry arms and empowered to invade privacy, dignity and other fundamental rights covertly.
“The Hawks are a dedicated anti-corruption unit insulated from executive influence and function independently,” Mthethwa and Radebe said, adding that the unit was ring-fenced and insulated from the SA Police Service hierarchy.
Mthethwa and Radebe said in Glenister’s previous case, the Constitutional Court did not hold that insulation from political influence in structure and functioning meant that the Hawks should be a law unto themselves or should not be accountable to the executive and legislature or that full independence is required.
They argued that there was no merit to Glenister’s assertion that no reasonable decision-maker would place the Hawks under the control of the executive and Phiyega but keep it separate from the SAPS hierarchy. The ministers said Dramat was no longer a deputy national commissioner following the promulgation of the SAPS Amendment Act.
“He is therefore no longer accountable to the national commissioner, whose post is vulnerable to political pressure,” said Mthethwa and Radebe.
“There is no room whatsoever for political influence to be used to appoint the Hawks boss who is not fit and proper or with a view to undue political manipulation in the future,” said Mthethwa and Radebe.
The ministers and the government want the Western Cape High Court’s December decision declaring the amendment act invalid set aside and the HSF and Glenister’s leave to appeal refused. Both matters will be heard on May 15.
In 2011, the Constitutional Court declared the legislation that set up the Hawks unconstitutional and invalid because it failed to secure adequate independence of the government’s anti-corruption unit and gave Parliament 18 months to fix the defects in the law.
Glenister and the HSF are appealing against a Western Cape High Court order which declared parts of the amendment act unconstitutional in December.
According to Glenister, the entire amendment act is unconstitutional and must be struck down as invalid.