As Thuli begs, cash-flush Hawks fly high on R1.4bn

Well-funded unit to fight graft has lost its way, unfairly burdening the public protector, writes Lawson Naidoo

PUBLIC protector Thuli Madonsela recently asked the National Treasury for R3million to investigate allegations of state capture by members of the Gupta family. To my knowledge this is the first time that a public protector has approached the Treasury directly for funds for a specific investigation.

The nature and breadth of the probe has prompted Madonsela to make this request. In addition to investigating possible breaches of the Executive Members’ Ethics Act at the behest of the DA, the Dominican Order asked Madonsela to probe all business deals between the state and the Guptas, including advertising in Gupta-owned media enterprises.

Madonsela concluded that the scope was akin to that of a commission of inquiry and should therefore be separately funded. Perhaps Madonsela is entitled to ask for extra resources for this task. But why only R3-million? The Treasury has now agreed to give Madonsela an additional R1.5-million.

The office of the public protector was established under the constitution to build and develop a rightsbased culture in South Africa and to ensure the rights articulated in the constitution are respected and promoted. The office of the public protector, together with the other Chapter 9 institutions, forms part of the checks and balances engraved in our system to strengthen constitutional democracy. Collectively they re-inforce the operation of the rule of law and promote good governance.

Section 182(4) of the constitution provides that “the public protector must be accessible to all persons and communities”. The public protector was intended to provide accessible administrative redress to citizens without having to resort to the court system which is expensive, lengthy and out of the reach of many people.

The constitution empowers the public protector “to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice”.

This wide remit is reinforced by the Public Protector Act, which specifies maladministration, abuse of power, improper or discourteous conduct, unlawful enrichment, and offences under the Prevention and Combating of Corrupt Activities Act. It is potentially a catch-all provision aimed at any wrongdoing by a public servant, or organ of state governed by the Public Finance Management Act.

In delivering judgment in the Nkandla case, Chief Justice Mogoeng Mogoeng said: “The public protector is thus one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in state affairs and for the betterment of good governance. The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the public protector.”

But despite this resounding endorsement, the office of the public protector must fulfil this mammoth range of responsibilities with a meagre budget of R263-million.

And yet there is another anti-corruption unit that boasts a budget of some R1.4-billion, but it is one in which we collectively appear to have lost confidence. That is the Directorate of Priority Crimes Investigation, known as the Hawks.

In the Glenister II case in 2011, the Constitutional Court said: “The constitution is the primal source for the duty of the state to fight corruption . . . its scheme taken as a whole imposes a pressing duty on the state to set up a concrete and effective mechanism to prevent and root out corruption and cognate corrupt practices.”

In Glenister III in 2014, the court said: “South Africa needs a dedicated anti-corruption agency which will also combat, prevent and investigate national priority offences. And that is what appears to be the purpose for the creation of the Directorate for Priority Crime Investigation.”

So why do so many cases of corruption end up at the door of the public protector, and not the Hawks?

Recent evidence suggests that the Directorate for Priority Crime Investigation is failing to meet the standards of operational independence set by the courts, while paying lip service to its structural autonomy.

It has been strongly argued that the location of the Hawks within the SAPS rather than as a structurally autonomous entity undermines perceptions of its independence.

This is becoming clearer by the day. The targeting of the minister of finance for his alleged role in the “rogue spy unit” at SARS exemplifies the political strategy of the Hawks.

Which may explain the disproportionate reliance on the public protector to act as the first line of defence against corruption. However, this is not sustainable and we risk damaging a shining beacon in our democracy by placing too many demands on its limited resources.

Organised and well-resourced structures, including political parties, must seek other means of holding the government accountable and ensuring good governance. And we must fix the Hawks to ensure that it is a corruption-fighting entity that discharges its mandate effectively and is fit for this purpose.

Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution

The targeting of the minister of finance exemplifies the political strategy of the Hawks