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The Constitutional Court (Concourt) ruled that certain sections of the SAPS Act that created the Hawks were unconstitutional because they offended the obligation to create an independent anti-corruption agency. It found two main problems with the Hawks: the lack of employment security for employees of the Hawks and the imposition of oversight by a ministerial committee (MC).
Due to these problems, the Concourt concluded that the Hawks lacked the functional independence the constitution requires. In response to these findings, Parliament drafted the SA Police Bill, which seeks to bring the SAPS Act in line with the constitution. In my view the bill addresses the constitutional requirements raised by the CC.
Firstly, the bill establishes the Hawks as a directorate within the SAPS. It is important to note that the constitution does not create any obligations on Parliament on where to locate the Hawks. Instead, it leaves this decision to the political branches to make.
The Concourt also emphasised this and said what was important was not whether the Hawks were placed within the National Prosecution Authority or the SAPS, but whether they had sufficient attributes of independence to fulfil their functions. The Concourt was correct in its observation. To compel the location of the Hawks would violate separation of powers because such a decision is entrusted to the political branches.
Moreover, such a decision involves no judicially enforceable rights. On this matter, the Concourt is fundamentally underequipped to make a decision or formulate national policies on a matter that is not legal in nature.
Furthermore, in addressing the personnel matters, the bill provides that the head and his or her deputy shall each be appointed for a non-renewable fixed term of no more than seven years. This provision addresses the concerns raised by the court that a renewable term of office, in contrast to a non-renewable term, heightens the risk that the office bearer may be vulnerable to political pressures. The bill also introduces statutory salaries for employees of the Hawks.
Regarding the removal of the head of the Hawks, the bill provides that the head will be removable by the minister of police only on grounds of misconduct; continued ill health or incapacity; or if he or she is no longer a fit and proper person to hold office.
The main constitutional defect identified by the Concourt was that the grounds for removal under the SAPS Act, which applied to the Hawks, were too broad. These grounds for removal are identical to the ones applicable to the head of the NPA and judges.
To address the defect surrounding the role played by the ministerial committee, over the operations of the Hawks, the bill provides that the Hawks will be guided by the policy guidelines issued by the minister and approved by Parliament.
Previously, the policy guidelines were issued by a ministerial committee made up of at least six ministers. The Concourt found that the power of the committee to issue policy guidelines for the Hawks created a plain risk of executive and political influence on the Hawks. The committee shall no longer oversee the functioning of the Hawks.
In the light of these changes, it is my view that the bill will pass constitutional muster. The replacement of the ministerial council with the minister is an important feature in the legal framework. In fact, it is necessary in terms of section 206(1) read with sections 207(2) and 208 of the constitution for the legislature to include this oversight role.
Section 206(1) provides that a member of the cabinet must be responsible for policing and must determine national policing policy after consulting with provincial governments. Through these provisions, the framers of the constitution contemplated the need for the executive branch through the minister to play a role in all matters dealing with policing in the republic.
It is my view that the replacement of the ministerial committee with the minister is consistent with the constitution.
The Concourt acknowledged this and said the executive played the ultimate oversight role. It goes on to say that in a modern state, it would be impossible to insulate the Hawks from the political accountability as this would be averse to our constitutional structure.
According to the Concourt, what is required is not insulation from political accountability, but insulation only from a degree of management by political actors, namely the ministerial committee, that threaten the independent functioning of the Hawks.
The fact that the bill does not give absolute independence to the Hawks is not problematic because such independence is not required by the constitution nor is it demanded by the Concourt.
Moreover, I believe it would be an offence to the separation of powers principle to insulate the Hawks from executive control as it would be equivalent to creating a fourth branch of government.
It is important to point out that section 85(1) of the constitution says that “the executive authority of the Republic is vested in the President”. It is a well established principle of constitutional law that crime investigations and prosecutions are purely executive functions (Olson v Morrison, 1988).
It is not for Parliament or the judiciary to determine how much of the purely executive powers of government must be within the full control of the president. The constitution prescribes that they all are.
The executive’s constitutionally assigned duties include complete control over investigation and prosecution of violations of the law.
In Western Cape (1995), the Concourt ruled that the Local Government Transition Act, which gave the president power to amend that act by proclamation, was unconstitutional because it violated separation of powers.
The majority reasoned that that act was problematic because Parliament gave complete power to the executive without sufficient control of its express powers to make laws for the republic.
Despite differences in reasoning, it is clear that the Concourt was unanimous in its conclusion that the degree to which Parliament continues to exercise exclusive control over the lawmaking powers was crucial to invalidating that act on separation of powers grounds.
Thus, by way of analogy, if Parliament deprived the executive of some of its functions on crime investigations, by taking away those functions and giving them to an absolutely independent body, this would violate separation of powers and section 85(1) read together with sections 206(1), 208 and 207(2).
From this standpoint, it is significant that the bill vests sufficient oversight in the executive branch generally, and minister specifically.
There is a benefit for locating the Hawks within the SAPS, which is that it creates opportunities for developing a coherent crime investigations scheme, where duplication, inconsistencies and turf wars can be avoided. The single crime-fighting strategy is also on par with the international trend.
Hence, as a matter of principle, the bill does meet the Concourt standard.
The remaining challenge is to the good men and women in the government to enhance the institutional capacity of the Hawks by recruiting competent and untainted individuals who will successfully implement the police reforms to achieve a corruption-free South Africa.
n Mhango is Associate Professor of Law and Deputy Head of School at the Wits School of Law.