Joburg businessman and anti-corruption lobbyist Hugh Glenister. Photo: Motshwari Mofokeng Joburg businessman and anti-corruption lobbyist Hugh Glenister. Photo: Motshwari Mofokeng
Joburg businessman and anti-corruption lobbyist Hugh Glenister and his advocate, Paul Hoffman, are gearing up for a fresh constitutional court challenge after the controversial SAPS amendment bill – which governs the Hawks anti-corruption unit – was approved by the parliamentary committee processing it.
“As matters stand, the bill is unconstitutional and, if it becomes law, Glenister will be back in the Concourt asking for the law to be set aside,” Hoffman said. Glenister branded the present draft as “applying Brasso to tarnished brass”.
“If the debate in Parliament and the work of the NCOP on the bill does not go back to the drawing board and (engage) the bigger issues, and coming away with something that will make South Africa a leader in the anti-corruption war, then, yes, we will have to ask the Concourt for clarity,” Glenister said.
Parliament’s police oversight committee finalised its deliberations and – with a number of last-minute changes on Wednesday – approved the bill without separating the Hawks from the police.
Glenister, Hoffman’s Institute for Accountability in Southern Africa and a range of other organisations – including Corruption Watch, the Helen Suzman Foundation, the Open Society Foundation and the Legal Resources Centre – voiced serious concern during public hearings on the bill over the Hawks remaining under the SAPS, with its head having to report to the police minister.
The bill will go before the National Assembly for debate on May 23. It will also have to be passed in the National Council of Provinces before being signed into law by President Jacob Zuma.
Glenister won a lone campaign in challenging legislation that created the Hawks in place of the Scorpions. The Concourt found in March last year the Hawks were not independent enough to be protected from political interference in fighting corruption effectively. It gave Parliament 18 months to change the legislation to fix this. The deadline expires in September.
Glenister is now spearheading another public campaign to fight the bill in its present form.
The bill, as approved by the committee, provides for several changes to the SAPS Act, including a stronger parliamentary oversight role and a provision that the Hawks no longer report to the national police commissioner but are instead “accountable” to the minister of police – effectively lessening the powers of the national commissioner.
This was an ineffectual attempt to address adequate independence, according to Hoffman.
It includes changes to procedures and criteria for appointing and dismissing the Hawks boss and staff.
It also provides for the head of the Hawks to prepare its budget “in consultation” with the police commissioner, rather than “after consultation”, which is now the case, and its funds will be ring-fenced, to be used for no other purpose than to fund the unit.
In terms of the bill, the Hawks – and not the police commissioner – will present the unit’s budget and annual report in parliament.
If the bill passes into law, the executive will no longer be able to suspend the Hawks boss without pay. He can still be sacked by a majority vote in the National Assembly, but this can only be done after a judicial inquiry has determined the dismissal is warranted.
A provision in the original draft of the bill that allowed the head of the unit to be fired on the grounds of a “loss of confidence” in him or her by the executive has been jettisoned, and the bill states that no member of the unit can be dismissed without the approval of its head.
The bill also trims the extensive powers granted by the current act to a controversial “ministerial committee”, to allow it only to “co-ordinate” the unit’s activities when it interacts with other government departments or institutions.
Hoffman, who represented Glenister in the Concourt case and who has repeatedly said it would be “deadly” to put the Hawks into the SAPS as envisaged in the bill, said he believed the bill would face a fresh challenge as it did not meet the court’s requirement that the unit be structurally and operationally independent.
“Our next action is to lobby as best we can to persuade the ANC cadres and politicians that what they are doing is unconstitutional,” Hoffman said.
“South Africa deserves to have the best possible anti-corruption machinery rather than a minimalist response to a decision of the Constitutional Court… That best response is a new chapter nine institution, an Anti-Corruption Commission – the Eagles.
“We suggest that the committee lost the plot… They sought to comply with a court order by doing as little as possible when, in fact, they had the opportunity to do as much as possible about the scourge of corruption.
“Any fair appraisal of the Richard Mdluli affair reveals that the SAPS has scored an own goal against the notion of the Hawks remaining within the SAPS.
“It’s impossible to have an effective specialist anti-corruption unit that is independent when there is so much dissent, faction fighting and claims of corruption within the SAPS itself.
“There is no way that the public can feel confident that there is proper anti-corruption machinery while the SAPS remains as dysfunctional as it is and while that anti-corruption machinery is located within SAPS.
“It’s extremely worrying to see a man of the calibre of Mdluli has risen as high and that he decides whether clandestine eavesdropping of telephone conversations can by authorised or not.”
Responding to the latest developments, Glenister said he was still very concerned that the unit effectively had the commissioner of police as its accounting officer.
“’The safeguards that have been attempted fall far short of true independence. They might also fall foul of having parliamentary oversight within the police.
“If this unit is to oversee corruption, then the chickens have power over the fox. If they had applied their minds effectively we could’ve seen a unit with true independence, one driven by true transparency, underpinned by checks and balances.
“We will have to hope that the NCOP… rejects this bill.”
Political Bureau