Calls to separate Hawks from police
Cape Town - Parliamentary hearings into the Hawks bill on Wednesday reopened the old political debate on whether the elite anti-corruption unit belongs in the police or the National Prosecuting Authority (NPA).
The Helen Suzman Foundation argued that the bill, drafted to comply with the landmark Glenister ruling, failed to satisfy the Constitutional Court's injunction to give the unit adequate independence.
Like other presenters, the foundation's researchers said this was nigh impossible to achieve while leaving the Hawks, or the directorate for priority crime investigation (DPCI) under the command of the national police commissioner - essentially a political appointee - as the bill seeks to do.
But they argued that locating it elsewhere would in itself violate the Constitution, because section 207 stipulates that all policing functions must fall under the commissioner.
"If our interpretation is right... locating a body in the South African Police Service that is not under the national police commissioner's control is unconstitutional," the foundation's Sara Gon said.
"We don't believe this contradiction can be addressed without changing the Constitution."
She was interrupted by ANC MP John Jeffery, who came in to grill presenters, although he is not a member of the committee, and asked whether the foundation was faulting the court.
Gon's colleague Lewis Mash denied this was the case.
"We certainly are not disagreeing with the judgment. We are not saying the DPCI cannot exist. We are happy to concur with the court that the DPCI can exist and that it is within what the legislature and the executive are allowed to do - to firstly abolish the directorate of special operations (DSO) and secondly to create the DPCI."
Separation of powers
Parliament disbanded the DSO, or Scorpions, in 2009, in line with a resolution taken at the ANC's Polokwane conference in 2007, despite its conviction rate of more than 90%.
It was argued that locating an investigative unit within the NPA, a branch of the judiciary, interfered with the separation of powers.
The unit was then replaced with the DPCI, which is located in the police. But in March last year the Constitutional Court found the Hawks was vulnerable to political meddling and gave Parliament 18 months to redraft the police act to address this.
Mash continued: "The problem is that the court has clearly ruled that there is a constitutional requirement for an adequately independent corruption fighting unit to exist somewhere in South Africa that combats corruption.
Nobody is independent
"For the DPCI to be the only anti-corruption unit is unconstitutional because it is not adequately independent, and we've argued that it cannot in the SAPS be adequately independent."
Jeffery countered: "Nobody is independent."
Hearings started on Tuesday after the committee received 21 written submissions, of which only one said the draft amendment constituted a proper response to the court ruling.
Constitutional law expert Pierre de Vos told MPs the proposed appointment of the head of the unit by the police minister, and the powers of oversight given to a ministerial committee left scope for the executive to meddle in its investigations.
De Vos said it was hard to see how legislators could leave the Hawks within the police and satisfy the court's call for a reasonable perception of independence.
He suggested they look to the statutory structure of the NPA within the justice department as a possible model for an autonomous unit.
The Institute for Security Studies has accused the drafters of taking a "minimalist approach" to complying with the judgment, and warned it would be dangerous for the Hawks to "salute" the police commissioner, as he could be open to political manipulation.
The institute's Gareth Newham disagreed that moving the unit outside the police force would contravene section 207. He said a precedent for an independent policing agency already existed in the independent police investigative directorate, formerly known as the independent complaints directorate.