Hawks have no wings to curb corruption

CORRUPTION has become an epidemic in SA society. The theft of public money, the use of public resources for private purposes, bribery and improper favouritism by government officials and politicians is crippling our country.

Willie Hofmeyr, the former head of the Special Investigating Unit, conservatively estimated last year that the government loses R25 to R30 billion to corruption every year. Furthermore, the auditor-general found that R26bn has been wasted or spent “irregularly” in the past year. A third of government departments have awarded contracts to officials and close family members, it was reckoned.

Corruption quite simply undermines the goals of increasing economic growth and development, creating jobs and fighting poverty.

Fighting corruption in SA has become the primary responsibility of the Directorate for Priority Crime Investigation, commonly known as the Hawks. However, this week Parliament’s portfolio committee on police will start its discussions on the SAPS Amendment Bill, which was the result of a Constitutional Court ruling (the so-called Glenister Judgment), which found that the Hawks were open to political interference by senior politicians.

The likelihood of political interference was always the DA’S principal objection to the disbandment of the Directorate for Special Operations, or Scorpions, and their replacement with the Hawks. Whereas the Scorpions were situated in the National Prosecuting Authority (NPA), which enjoys constitutionally enshrined independence, the Hawks are situated in the Department of Police and are directly answerable to a minister.

The track record of the Scorpions (at least under the politically independent Vusi Pikoli) speaks for itself. In addition to the Scorpions’ willingness to carry out investigations without fear or favour, their success was due to a prosecutorled approach to corruption-busting, which led to an unprecedented 94 percent conviction rate.

The DA assessment of the public submissions received on the bill indicates widespread opposition among citizens and leading civil society and specialist organisations.

Organisations such as the Institute for Security Studies (ISS), the Institute for Accountability in Southern Africa (IFAISA), the Helen Suzman Foundation, the Open Society Foundation, the Legal Resource Centre, Corruption Watch and the Council for the Advancement of the SA Constitution all argue that the bill is inconsistent with the Glenister Judgment and that the Hawks, as a result, are not sufficiently independent or shielded from political interference.

We have identified 10 ways in which the Hawks do not measure up to the Scorpions, and will ensure that these objections are taken into account in the committee’s deliberations. Key objections include:

The appointment process for the head of the Hawks is still the overall responsibility of a senior politician – the Minister of Police – with the concurrence of other senior cabinet politicians. The DA maintains the appointment should involve a process of consultation with Parliament.

Should the head of the Hawks step on the toes of senior politicians, the Minister of Police may provisionally suspend him or her. This does very little to encourage the Hawks to fight corruption without fear of retribution.

Undue political interference remains a threat, as senior politicians, in the form of the Ministerial Committee, have the ability to co-ordinate the activities of the Hawks in terms of Section 17I(2)(c) of the Bill.

The DA holds that financial independence is a prerequisite for independent anti-corruption efforts. The budget of the Hawks remains under the control of the National Police Commissioner and the money allocated to it forms part of the budget vote for the police. The Hawks, like the Independent Police Investigative Directorate, should have a separate budget vote and require greater financial independence to ensure that they will not face spurious resource constraints when zooming in on corrupt officials and politicians.

The salary and benefits of the head of the Hawks and other senior staff are still determined by the Police Minister.

A senior politician still has the power to determine national priority offences to be investigated by the Hawks, “subject” to policy guidelines issued by the Minister of Police.

The Hawks will remain in the Department of Police and are directly answerable to a minister. No effort is being made to situate the Directorate in the National Prosecuting Authority (NPA) or similar organs of state which enjoy constitutionally enshrined independence.

The bill clearly does not give the Hawks the power to investigate and combat the full spectrum of corrupt activities. The functions of the Hawks include the prevention, combating and investigation of only “selected offences” as described in Chapter 2 and s34 of the Prevention and Combating of Corrupt Activities Act (No 12 of 2004).

Members of the Hawks, in terms of Section 17E(9)(a) of the bill, are bound only to perform their functions impartially and in good faith. Independence is still clearly not a basic necessary precondition for the execution of their duties.

Members of the Hawks remain police officers with all the powers, duties and functions of police members. While it is necessary for the Hawks to have these powers and functions, it is unacceptable that their members operate within the rank-and-file of the SAPS where independence is undermined by a culture of taking orders from superiors without question.

Accordingly, the DA will this week continue its campaign in Parliament to create a sufficiently independent anti-corruption unit like the Scorpions were. We will also study the feasibility and implications of setting up a Chapter 9 type body to combat corruption as suggested by various organisations in their public submissions.

The DA maintains it is in the best interests of the country to bring back the Scorpions instead of fiddling with the Hawks as this bill is doing.

The government must demonstrate its commitment to combating corruption and accordingly throw its support behind setting up a sufficiently independent corruption-busting agency that commands public confidence and safeguards public money.

South Africans deserve an independent, effective and highly specialised, prosecution-driven anticorruption unit like the Scorpions, not a watered-down version answerable to a minister.

Dianne Kohler Barnard is an MP and the DA’S spokeswoman on crime.