By Kwazi Dlamini
The African Union declared 2018 the year of combating corruption on the continent. In South Africa, as more and more corruption scandals are uncovered, the country’s disadvantaged are no better off, while the rich are getting richer. Many of the latter gain their wealth by looting state coffers. South Africa has struggled with corruption from the days of apartheid and although 1994’s democratic government had brought hope to the people, in the two and a half decades since, corruption has penetrated enforcement institutions that were put in place to protect ordinary citizens – now it seems that they protect the wrong-doers.
Since the disbanding in 2008 of the Directorate of Special Operations – known familiarly as Scorpions – and their replacement by the controversial Directorate for Priority Crime Investigation, or Hawks, South Africa has seen a surge in impunity when it comes to combating corruption and making those in power account for their actions. The country’s Constitutional Court reminds us that the Constitution obligates the state to establish and sustain an independent body that will fight corruption and organised crime. The same court held, as far back as 2011, that the Hawks were not adequately insulated from patent potential political influence in its structures and its functioning, as became obvious years after their inception.
Concerns over independence of crime-fighting body
The reason for the court’s concern is that the South African Police Service (Saps) Act requires the Hawks’ activities to be co-ordinated by Cabinet. In addition, a ministerial committee comprising at least the ministers of police, finance, home affairs, state security, and justice and constitutional development, as well as any other minister designated from time to time by the president, would determine policy guidelines for its functioning. As these ministerial positions could be political appointments, the court held that the Hawks are vulnerable to political intrusion, which is inimical to its genuine independence. The judgment also found that the members of the Hawks lacked the security of tenure required for such independence.
The court therefore declared that the provisions relating to the establishment of the Hawks were constitutionally invalid. It suspended the declaration of invalidity for 18 months in order to give Parliament the opportunity to remedy the defect.
In a minority judgement, then Chief Justice Sandile Ngcobo and three other constitutional court judges argued that as the Constitution does not prescribe the specific mechanisms through which corruption must be rooted out, it does not explicitly obligate the state to establish an independent corruption-fighting unit. Ngcobo noted that there were sufficient institutional and legal mechanisms to prevent undue political interference and guarantee that the Hawks have the independence to perform their function.
Replacing the good with the bad
The Hawks was established to replace the Scorpions, a highly respected unit with a conviction rate of between 82% and 94%. In 2002, a year after its establishment, the Scorpions arrested 66 people and by 2006 the number had climbed to 617. In 2002 the unit had 180 prosecutions finalised and in 2006 the prosecutions rose to 214.
In 2008 the African National Congress (ANC) proposed that the Scorpions be disbanded and become a part of Saps. A poll held that year revealed that a majority of South Africans agreed that the Scorpions should be separate from Saps. South Africa’s controversial former president Jacob Zuma and his allies believed that the Scorpions were used to fight political opponents of Zuma’s predecessor Thabo Mbeki. Those opponents included Zuma, who was challenging Mbeki for the presidency while facing criminal charges that included more than 780 counts of corruption, racketeering and money laundering. The charges were part of various investigations by the Scorpions.
The ANC had its way and after the Scorpions were disbanded, opposition parties came out to strongly criticise the move, saying those in power wanted to trespass without any consequences.
“Where the Scorpions had a conviction rate between 82% and 94%, the Hawks are managing detection rates of around 50% and court ready percentages that are lower. It was a disservice that we did this country when the Scorpions were disbanded,” The Democratic Alliance’s (DA) shadow minister of police at the time, Dianne Kohler Barnard was quoted by MoneyWeb.
The Scorpions had also succeeded in establishing relationships with several international crime organisations such as the Federal Bureau of Investigations, The Economic and Financial Crimes Commission in Nigeria, and other units from the United Kingdom, Hong Kong, Australia and Ukraine. According to a North Gauteng High Court submission by the DA, in an attempt to get the Scorpions back, the unit had already convicted seven members of the ANC’s National Executive Committee- the party’s top structure- while another six members were currently the subject of ongoing criminal investigation.
Erratic leadership destabilises the Hawks
The current Hawks are part of Saps with the national police commissioner appointed by the president. This is another destabilising factor plaguing the now ineffective unit as for the past few years South Africa has seen many different faces take the position of police commissioner. For the most part they have been unfit to hold office, were dismissed for corruption allegations, or were convicted. None have completed a full term in office.
The late General Jackie Selebi, police commissioner from 2000-2009, was convicted and sentenced to 15 years in prison on charges of corruption. He was replaced in 2009 by Bheki Cele.
Two years later, in February 2011, Cele was implicated in an unlawful R500-million lease agreement for the new police headquarters in Pretoria. In October that year Zuma announced that Cele had been suspended pending an investigation into the agreement. General Nhlanhla Mkhwanazi, who replaced Cele in an acting position, was let go amid speculation that he refused and resisted undue political interference in Saps. Cele, however, has since made a spectacular comeback and is currently minister of police.
Mkhwanazi and Cele were both removed in June 2012. The top cop position then went to General Riah Phiyega, who was found by the Claassen Board of Inquiry to be unfit for office and was later suspended. Phiyega’s image was tainted after the Marikana massacre where 34 protesting miners were gunned down by police using live ammunition. Phiyega’s tenure damaged the morale and performance of the police service as she irregularly removed senior and experienced officers and replaced them with individuals who lacked the experience and integrity. Zuma was highly criticised for appointing Phiyega in the first place, as she had no previous police experience.
Although the Claassen Inquiry found her unfit for office and recommended that she be dismissed, Zuma failed to implement these recommendations, instead allowing Phiyega to continue receiving her full salary and benefits. This state of affairs continued until June 2017, when Phiyega’s term came to an end, ironically making her the first commissioner since George Fivaz, whose term ended in 2000 when he was replaced by Selebi, to accomplish this.
Lieutenant-General Kgomotso Phahlane, who had been acting police commissioner in Phiyega’s place, made evident improvements within Saps but was dismissed after the Independent Police Investigative Directorate started to investigate allegations of corruption against him. His response to being investigated further damaged his credibility and the police morale. In June 2017 the charges against him were withdrawn.
Phahlane’s tenure, meanwhile, had come to an end in mid-2017. He was replaced by Lieutenant-General Lesetja Mothiba, who was himself replaced mere months later by Lieutenant-General Khehla Sitole as the new permanent top cop.
As the Hawks fall under Saps, with its frequent leadership changes and scandals, it is unlikely that the Hawks would stay free of political interference. Those who try to keep these institutions on track usually do not last long in their positions as they stand in the way of those who want to loot. Former Hawks director Anwa Dramat was suspended in 2014, shortly after he requested dockets of criminal investigations involving individuals close to Zuma. Criminal charges of organised crime, kidnapping and other offences against Dramat and his co-accused, Gauteng Hawks head Shadrack Sibiya, were dropped in October 2018.
Berning Ntlemeza, meanwhile, was appointed as the new Hawks head but the High Court overturned his appointment citing that he was unfit to lead the unit. He was also found to have lied under oath. Ntlemeza was labelled by his predecessor as an ally of Zuma and Richard Mdluli – the latter is the controversial former head of police intelligence, who was suspended in 2015 on charges of corruption and relieved of his duties in January 2018.
The Hawks’ performance trends show a plummeting number in both arrests and convictions which further illustrate the level of impunity shown to wrongdoers. Their arrest rate dropped from over 14 000 in 2010 to just over 5 000 in 2015. Meanwhile their convictions dipped from over 7 000 in 2010 to just over 1 000 in 2015. These numbers, compared to the Scorpions, show a worrying trend of unaccountability; they also reflect the rising level of corruption in South Africa.
It is hoped that the latest Hawks head, Advocate Godfrey Lebeya – a career policeman with a doctorate in criminal law, who left Saps in 2016 – will bring much-needed stability and newfound motivation to the unit. Similarly, Sitole’s appointment as national police commissioner is expected to revitalise the police service and instil a new attitude of accountability and responsibility.