Concourt sends Hawks law back to Parliament

2011-03-17 10:48

A section of the legislation that paved the way for the disbanding of the Scorpions and the creation of the Hawks was declared constitutionally invalid because it did not provide enough protection against political influence, the Constitutional Court ruled today.

It gave Parliament 18 months to remedy the legislation after finding that Chapter 6A of the SA Police Service Act as amended, was constitutionally invalid.

“The key question in this case is whether the national legislation that created the Directorate for Priority Crime Investigation, known as the Hawks (DPCI), and disbanded the Directorate of Special Operations, known as the Scorpions (DSO), is constitutionally valid,” the judgment read.

The majority of the court found it was not, saying: “The main reason for this conclusion is that the DPCI is insufficiently insulated from political influence in its structure and functioning.”

The case was brought by businessman Hugh Glenister, who was opposed to the disbanding of the Scorpions, which was a decision taken at the ANC’s conference in Polokwane 2007 following lengthy attacks on the unit as it attempted to investigate corruption allegations against President Jacob Zuma before he was sworn in.

The Constitution, the Bill of Rights and international agreements on combating corruption, which have been approved by Parliament, required that states create independent anti-corruption entities.

The judges explained that the DPCI’s activities must be coordinated by Cabinet and that the statute provides that a ministerial committee may determine policy guidelines in respect of the functioning of the DPCI, as well as for the selection of national priority offences.

“This form of oversight makes the unit vulnerable to political interference.”

The safeguards to prevent political influence and interference are also inadequate.

“Conditions of service of the unit’s members and in particular those applying to its head make it insufficiently independent.

“Members thus have inadequate employment security to carry out their duties vigorously; the appointment of members is not sufficiently shielded from political influence; and remuneration levels are flexible and not secured. These aspects make the unit vulnerable to an undue measure of political influence.”

The court also found that the Constitution does not oblige Parliament to place a specialised corruption-fighting unit only within the National Prosecuting Authority.

The court suspended the order of constitutional validity for 18 months to give Parliament time to rectify the inadequacy.

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