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Dear Corruption Watch
Can you please tell me about the Hawks Bill? I know Parliament had to redraft it to restructure the Hawks in line with the Glenister judgment, but last I saw the body was still meant to report to the Minister of Police. Surely this is in violation to the spirit of the Constitutional Court ruling? How can it be independent if it is reporting to a political appointee and receiving its budget from an organisation it might need to investigate?
The Hawks Bill was passed into law at the end of last year. The government says it is confident that the new provisions address the Glenister judgment, but you are right to be wary. Changes to the original Bill may not be enough to fulfil the government’s constitutional obligation to create a truly independent body; we may see another successful Constitutional Court challenge to the legislation.
In the Glenister judgment the Constitutional Court held that the original SAPS Amendment Bill governing the Hawks did not provide adequate independence for the unit. The Court made clear that the obstacles were the absence of secure conditions of employment, the heavy oversight of the ministerial committee and that the Hawks’ power to investigate could be constrained by the policy guidelines drafted by members of the Executive.
The Hawks will now be a Directorate within the SAPS rather than a division. The ministerial committee’s oversight and control has been reduced, but the new Act hands some of these functions to the Minister of Police. Despite giving the unit its own Head, it is the Minister who will determine the policy guidelines relating to priority offences. While the policy must be approved by Parliament, the Minister’s role will naturally interfere with the ability of the Hawks to pursue crime and corruption wherever they find it and creates an opportunity for political meddling.
The government believes that if the Hawks are not situated within the SAPS they will not have the proper policing powers to do their work and that as a Directorate they have the necessary independence. However, the structure creates ambiguity in the lines of authority and hierarchy within the SAPS. It also creates the perception that the Hawks would not be able to freely investigate allegations of corruption within the SAPS itself. The Hawks’ budget must be approved by the national commissioner of the SAPS, raising concern that they will not have access to the necessary resources to pursue their investigations.
The Minister can hire and fire the National Head of the Hawks, though there are safeguards intended to limit undue interference and create security of tenure. These include the Head’s non-renewable term, a fixed pay-scale and requirement for enquiry after any suspension. The deputy Head or other Hawks employees cannot be removed by the Minister without the permission of the Head.
This new scenario is not ideal. The Hawks would enjoy greater independence if they were, for example, declared a chapter 9 institution like the public protector. The mandate of the unit should be clearly set out in legislation explicitly including corruption and enabling the unit to initiate investigations itself. A Parliamentary sub-committee could appoint the Head with the final decision requiring a supporting vote in Parliament. And Parliament could review the Hawks’ budget without approval from the national commissioner.
The government has done the bare minimum to comply with the judgment of the Constitutional Court, making it difficult to have confidence in the Hawks’ ability to fight crime and corruption without political interference and influence. The Court may soon hear another challenge and decide whether this new Act allows the Hawks to operate as a truly independent anti-corruption body.
Take a stand and report an incident of corruption. This article originally appeared in the Sunday Times Business Times on 17 February 2013.