Experts say Hawks bill won't pass

2012-04-24 18:06

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Cape Town - The draft bill on the Hawks fails to give the unit the independence the Constitutional Court demanded in a landmark judgment last year, law expert Pierre de Vos told MPs on Tuesday.

"The amendments fall far short of what is required by the Glenister judgment in several ways," De Vos told Parliament's portfolio committee on police processing the bill.

He said the proposed changes to Section 6 of the South African Police Service Act tabled in March left the head of the Hawks vulnerable to political pressure regarding decisions to investigate corruption.

"At the heart of the matter is the operational independence of the body so that it can decide when to start, when to continue and when to end an investigation," De Vos said.

"Given what has happened in the police force and with all the allegations swirling around us, there is going to be difficulty in this regard it seems to me," he added in reference to claims of political meddling by acting national police commissioner Nhlanhla Mkhwanazi last week.

Political appointment

The bill failed to guarantee sufficient independence, firstly because the head of the unit remained a political appointment, and a largely arbitrary one at that.

Secondly, like the original legislation rejected by the court, it did not protect the security of tenure of the head of the Hawks and ordinary members.

"That is pivotal. The appointment of the head of the unit is problematic because it is supposed to be done by the minister but there are no criteria set down for what the qualities of the person appointed must be.

"So apart from the fact that it is a political appointment, that is a problem."

As the bill stood, it would also allow the head of the Hawks to be removed for reasons that were less than objective, he added.

This included firing him or her on "account of incapacity" to perform the task efficiently.

"This is always going to be a matter of opinion. There is really an opening there for using this criteria for removing somebody for political reasons."

He said the bill stipulated that there must be an inquiry before the head of the unit could be fired, but remained silent on how this should be done. The bill also stated that, pending the inquiry, the Hawks boss could be suspended without pay - something which could be used to intimidate the incumbent.

Extensive powers

"The lack of security of tenure does inevitably create a vulnerability to political pressure," De Vos concluded.

He said the bill clearly tried but ultimately failed to address the Constitutional Court's concerns on the extensive powers of the ministerial committee in terms of oversight over its work.

This was because the ministerial committee could still issue instructions to the Hawks' operational committee, providing a "back door" for political instructions to be given to the unit.

"The competence vested in the ministerial committee to issue policy guidelines puts significant power in the hands of senior political executives.... it cannot be disputed that those very political executives could themselves ... be the subject of anti-corruption investigations."

De Vos suggested that the drafters of the bill look to the National Prosecuting Authority Act to find a way of making the unit autonomous while still accountable to the minister of police, echoing the relationship of the prosecutions boss to the justice minister,

The portfolio committee has received 21 submissions on the bill, most of which fault it for failing to comply with the judgment. De Vos was the first to present oral arguments in hearings this week.

The court gave Parliament 18 months to amend the legislation, leaving lawmakers until September to meet the deadline.
Read more on:    police  |  hawks  |  pierre de vos  |  nhlanhla mkhwanazi  |  legislation

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