Hawks break loose from political cage

2012-06-02 12:52

Bill sees crime fighters edge closer to the desired level of independence

South Africa is one step closer to having an independent agency that should be able to investigate and act against high-level corruption.

On May 17, the parliamentary portfolio committee on police, chaired by Sindiswa Chikunga, approved a version of the bill that is much stronger than the earlier version.

The South African Police Service (SAPS) Amendment Bill emerged as the result of the Constitutional Court judgment on March 17 last year, which found that the Directorate of Priority Crime Investigation (DPCI), also known as the Hawks, was not adequately independent as required by the Constitution and South Africa’s international legal obligations.

This was because there were a number of ways in which political influence or interference could affect its work.

Civil society organisations that made submissions to Parliament in April, including the Institute for Security Studies (ISS), were almost unanimous in calling for the new legislation to relocate the DPCI outside of the SAPS.

This, they argued, would be the best way for the unit to be truly independent and to secure public confidence.

The new version of the bill does not go this far. The Hawks will remain a directorate of the SAPS.

However, measures that strengthen the position of the head of the directorate do ameliorate the concerns about the vulnerability of the DPCI to political interference.

These measures include:
» A requirement for the minister of police to consider both the integrity and conscientiousness of the person to be appointed to the head of the DPCI;

» Giving the head of the DPCI the authority to overrule the national commissioner of police in decisions regarding what crimes should be investigated by the unit;

» Allowing the head of the DPCI to determine the organisations’ budget, which will be “ring-fenced”, and requiring him or her to report directly to Parliament on the budget and expenditure of the directorate;

» Giving the head of the DPCI the final authority in the recruitment and dismissal of all DPCI staff; and

» Making it a criminal offence for anyone attempting to hinder, obstruct or interfere with the DPCI’s work.
 
It is an important development that the bill goes some way towards ensuring that the right kind of person is appointed to head the DPCI.

It does, however, still leave the final decision of who to appoint to the minister of police, whose decision will be confirmed by Cabinet, a serious shortcoming.

It would have been far preferable if the bill had provided for an open and transparent selection process by a committee of Parliament or an independent structure.

This is particularly important in the light of recent experience.

There have been instances in which individuals whose integrity and ability are in question have been appointed to key positions in the criminal justice system.

The bill also addresses concerns about the potential for ministerial influence over the work of the unit.

While the controversial ministerial committee that previously had an oversight role remains in existence, the bill has stripped it of all responsibilities and powers, and allocated it the task of ensuring that there are procedures to allow for the coordination of the activities of the DPCI and government departments.

This committee has to report to Parliament about its activities annually and can be called by Parliament to report in between annual reports.

This is important in light of recent allegations that the minister of police interfered with a DPCI investigation to protect SAPS crime intelligence head Richard Mdluli.

Now, such interference would be illegal.

The bill has also gone some way towards addressing complaints made either by or against members of the DPCI.

The retired judge appointed to respond to any complaints will have a budget, and interference with this work will also be a criminal offence.

One significant weakness remains, which will need to be addressed before the bill is signed into law.

The process leading to the dismissal of the head of the unit remains ambiguous and allows the minister the discretion to determine whether the head, during any period of suspension, will receive a salary.

The ISS and others argued that this creates the opportunity for political influence over the head of the unit.

The future of this bill remains somewhat unclear since the announcement by the Institute for Accountability in Southern Africa that it intends to challenge the Constitutionality of the bill.

This will serve to ensure that the final version of the bill does meet the requirements of the Constitution and is a move that has been welcomed by the portfolio committee.

Whatever the outcome of this process, and despite a few remaining inconsistencies and shortcomings, the bill has gone a long way towards addressing the concerns raised in Parliament and will strengthen the Hawks’ independence.

Yet the success or failure of the Hawks will largely be determined by who is appointed to its head.

If a political appointment is made, the Hawks will be unlikely to pursue anyone who the president or minister of police may wish to protect.

It is only if a person with the necessary expertise, skills and integrity is appointed that the Hawks will be able to be an effective anti-corruption unit.

» Gould is a senior researcher and Newham is the head of the crime and justice programme at the Institute for Security Studies

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