Legislation doesn’t recognise The Hawks – ConCourt

2011-03-17 15:05

The Hawks are constitutionally invalid, says the Constitutional Court.

Businessman Hugh Glenister, who went all the way to the ConCourt following the ANC’s decision to disband the Scorpions, has now been vindicated.

The ConCourt ruled today that a section of the legislation enabling the disbanding of the Scorpions and launch of the Hawks was constitutionally invalid.

It ruled that this legislation did not provide enough protection against political influence for the Hawks, a specialist investigative unit placed within the police.

The Scorpions fell under the National Prosecuting Authority and the Department of Justice.

The court ordered Chapter 6A of the South Africa Police Services Act 68 of 1995, as amended, to be sent back to Parliament, with the order of constitutional invalidity suspended for 18 months, until it has been rectified.

Glenister started his court battles after the ANC, at its 2007 conference in Polokwane, decided to disband the Scorpions, also known as the Directorate of Special Operations.

The ANC’s anger against the Scorpions was sparked by the directorate’s attempts to prosecute President Jacob Zuma for corruption.

These attempts followed the conviction of Zuma’s former financial advisor, Schabir Schaik, on corruption charges.

ConCourt judges ruled that the South African Constitution, the Bill of Rights as well as international anti-corruption agreements, ratified by Parliament, required the creation of independent anti-corruption entities by the state.

The Hawks, the judges found, were vulnerable to political influence because legislation required its activities to be coordinated by Cabinet and its policy guidelines to be determined by a ministerial committee.

The judges also pointed out that the conditions of service which applied to members of the Hawks made it insufficiently independent.

They did not have enough employment security to carry out their duties vigorously.

The appointment of members was not sufficiently shielded from political influence.

Remuneration levels were furthermore flexible and not secured.

This made the Hawks vulnerable to an undue measure of political influence.

The Constitution, the judges said, imposed an obligation on the state to establish and maintain an independent body to combat corruption and organised crime.

The Constitution imposed a pressing duty on the state to set up a concrete, effective and independent mechanism to prevent and root out corruption.

The judges also pointed out that corruption undermined the rights in the Bill of Rights, and imperilled South Africa’s democracy.

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