Hawks: A surprising judgment

2011-03-18 13:24

Pierre De Vos

It does not happen often that those of us who study the judgments of South Africa’s Constitutional Court are surprised by a judgment of that court.

But yesterday the majority of judges of the Constitutional Court surprised many of us when it declared invalid the legislation that created the Hawks. The Hawks, you will remember, replaced the Scorpions who seemingly got into trouble for pursuing corruption charges against President Jacob Zuma.

In a majority decision, the court argued that corruption was a serious issue which undermined respect for our human rights. Corruption, said the judges, “threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”.

The State therefore had a constitutional duty to take steps to combat corruption. If a State like ours fails to take such steps and if it does not create a sufficiently independent anti-corruption body, the State is infringing on the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights.

What was therefore required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. Although there are many ways in which the state can fulfil this constitutional duty, if the state fails to create a truly independent corruption fighting body it would be in breach of its constitutional duties.

Independent body

This is strong stuff. But it gets even better.

The court, explaining what this independence would entail, made it clear that unlike the Scorpions, the Hawks did not measure up.

First, the court argued that perceptions matter and that a body to fight corruption would only be independent if reasonable people would believe that it was indeed independent. This means that the state would not be allowed to create a body that it claimed was independent but that did not appear independent to the reasonable members of the public:

The court also argued that an anti-corruption body would only be independent if it was legally protected and if it had the necessary institutional protection to ensure that its members acted without fear, favour or prejudice. The Hawks was not such an independent body because members of the Hawks were “ordinary” police officials who enjoyed little if any special job security.

Political influence

Although the majority does not say this, the lack of independence of the Hawks due to this provision is highlighted by the fact that our present Police Commissioner has recently been found to have acted in an unlawful manner relating to a highly problematic lease entered into to rent new Police Headquarters.

If the Hawks were to investigate any possible corruption relating to this deal, the Commissioner would, in effect, be able to fire those responsible for the investigation for any of a number of reasons not officially related to the investigation.

The Hawks also failed the independence test because its activities are co-ordinated by Cabinet. At present a Ministerial Committee may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences which the Hawks must investigate. The Hawks is therefore not explicitly a corruption-fighting unit.

It is a unit that fights “priority crimes” and the politicians can decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. In other words, at present politicians can in effect decide what crimes the Hawks must investigate and, by implication, what crimes it should stay away from.

Parliament was therefore given 18 months to fix the problem. But Parliament itself is now in a fix.

Time will tell

It is going to be difficult for the executive and Parliament to comply with the judgment by merely tweaking the existing legislation. A completely new institution with far more safeguards to secure its independence will have to be created. Some politicians might not like this, but that is what the Constitutional Court required.

Of course, even such a body will only be as good as the people appointed to it.

Only time will tell whether a new body that is truly independent will emerge from this saga or whether Parliament or the executive will try and create a more pliant institution. What is certain is that we need such a body to protect us all - rich and poor, black and white - from the corruption that is sweeping our country.

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