Deon de Lange
THE government is destined for another Constitutional Court showdown with Hugh Glenister after the Joburg businessman yesterday rejected the latest version of the SAPS Amendment Bill – which aims to insulate the Hawks from political meddling – and threatened to take the matter back to the highest court.
Glenister successfully challenged the law establishing the Directorate for Priority Crime Investigation – the Hawks – in the Constitutional Court last year. The judges found the unit was insufficiently protected from political interference and declared the relevant section of the law to be invalid.
However, the court suspended its declaration of invalidity for 18 months – or until September this year – and instructed Parliament to bring the law into line with the constitutional requirement of an independent anti-corruption unit.
“We will go back to court,” Glenister declared yesterday when he was told that the National Council of Provinces (NCOP) committee for security and constitutional development had adopted the revised bill at its meeting on Wednesday last week. The committee resolved to recommend to the NCOP that the bill be passed when it came up for debate in council in the coming days.
Glenister believes that the amendment bill does not go far enough to secure the unit’s independence and that lawmakers have therefore not fully complied with the court’s instructions. He also questioned the “process” followed so far in tabling, debating and amending the SAPS Act.
“The big problem is that Parliament did not institute the action [to amend the bill]. Parliament was instructed to write a new law. Nothing happened for months and then the executive brought a new version of the bill and asked Parliament to process it. So the entire process is questionable,” Glenister told Independent Newspapers yesterday.
The businessman, who fought a long legal campaign against the current law, also complained that the new version fell short of establishing an independent Hawks unit. Referring to the added powers granted to the head of the Hawks in the new bill, Glenister said “you cannot have someone who is independent still being under [the command of] the police commissioner”.
The amended bill would significantly enhance the authority of the head of the unit. For instance, the Hawks boss would no longer report to the police commissioner on operational matters, but would be “accountable” to the minister of police. The head of the unit would also prepare its budget “in consultation” with the police commissioner and no longer “after consultation”, as the current law requires.
Other safeguards that have been worked into the law include the fact that the Hawks boss may no longer be suspended without pay. He or she may also be dismissed only after a judicial inquiry has determined that this is warranted.
The bill also trims the extensive powers granted by the current act to a controversial “ministerial committee”, to allow it only to “co-ordinate” the unit’s activities when it interacts with other government departments or institutions.
And whereas the Constitutional Court stopped short of demanding that the unit be removed from the police, critics of the current arrangement have argued that the court’s demand for sufficient insulation from executive interference could only be achieved if the unit resided outside the police, which is run by the national police commissioner, who is a political appointee.
The latest draft is substantially similar to the version already passed by the National Assembly – by 220 votes to 57 – earlier this year. If it is passed by the NCOP in the coming days, the bill will be referred back to the National Assembly..
Having expressed his dissatisfaction with the draft now before the NCOP – and since further changes are unlikely – Glenister and the government seem likely to square off once more in the Constitutional Court in the near future.