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Scorpions disbanding unconstitutional

The Constitutional Court ruled on Thursday that sections of the Acts that disbanded the Scorpions and created the Hawks were inconsistent with the Constitution. It has given Parliament 18 months to rectify the legislation.

The ANC and its allies were cautious in their responses to the ruling but opposition parties expressed enthusiasm.

Deputy Chief Justice Dikgang Moseneke delivered the majority judgment, prepared with Justice Edwin Cameron, which ruled that “the Directorate for Priority Crime Investigation [the Hawks] is insufficiently insulated from political interference”.

The judgment was a narrow majority one, supported by five of the court’s nine judges.

Justices Johan Froneman, Bess Nkabinde and Thembile Skweyiya concurred with Moseneke and Cameron’s judgment.

A minority judgment, prepared by Chief Justice Sandile Ngcobo, found that the Hawks’ structural and operational autonomy was already secure.

Acting Justice Frederik Brand and Justices Mogoeng Mogoeng and Zakeria Yacoob concurred with him.

Moseneke said “it is the duty of the state to create a concrete, effective and independent mechanism with which to root out corruption”, in line with the Bill of Rights and South Africa’s international obligations.

His judgment does not disband the Hawks or reinstate the Scorpions, but it gives Parliament another opportunity to create a “constitutionally valid” independent crime and corruption-busting unit.

The Hawks is a unit in the South African Police Service that reports to the ministry of safety and security, and is therefore in effect directed by the executive.

The former Scorpions was a unit in the National Prosecuting Authority and so was nominally independent of the executive.

Hugh Glenister, a private citizen who brought the application before the Constitutional Court, said he was “elated — ecstatic, in fact”.

To date Glenister has spent R3.8-million in legal fees in opposing the Scorpions’ disbandment. “In my view it’s money well spent,” he said.

The Scorpions achieved a conviction rate of more than 90% and pursued high-profile cases, including the arms deal investigation that led to the conviction of Zuma’s former financial adviser, Durban businessman Schabir Schaik, on fraud and corruption charges.

The unit’s “search and seizure” methods were bitterly opposed by sections of the alliance and it was formally disbanded in October 2008 after Parliament adopted the National Prosecuting Authority Amendment Act and the South African Police Service Amendment Act.

The Hawks, which has all but shut down the arms deal probe, said it welcomed the judgment and “will be taking the necessary steps under the guidance of Parliament to give effect to the judgment”.

“Criminals should not be under the impression that the Constitutional Court judgment eliminates the work of the Hawks. The unit’s fight against corruption continues unhindered,” said Hawks spokesperson McIntosh Polela.

The safety and security ministry said it would study the judgment in its entirety before commenting.

The justice department said it would do the same, but “steps will be taken to give effect to this judgment”. Spokesperson Tlali Tlali said: “Parliament has been vindicated as the court did not find anything irrational in how it processed the legislation.”

The ANC said it would consider how best to implement the judgment’s findings, while alliance partner Cosatu called on Parliament and the government “to comply with the court’s instruction to remedy the legislation within the next 18 months”.

The DA’s shadow minister for police, Dianne Kohler Barnard, said the Scorpions should have been retained. Disbanding them “was designed to shut down investigations into ANC politicians and allow [them] to continue to dispense patronage, as well as engage in corruption”, she said.

Cope spokesperson Philip Dexter said the judgment put an onus on the government to “do the right thing” and the closure of the Scorpions had left a void in corruption investigations.

He cited police National Commissioner Bheki Cele, who “is implicated in wrongdoing. How can the Hawks investigate their own commissioner?”

United Democratic Movement leader Bantu Holomisa said the onus was now on the “comrades to clean up their mess in the next 18 months … We once warned the country that the Polokwane lynch mob that is currently running the country is taking us nowhere. They continue to loot the country right in front of the Hawks.”

Mmanaledi Mataboge is a senior political reporter; Lionel Faull is a member of amaBhungane, the M&G Centre for Investigative Journalism.

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Mmanaledi Mataboge
Guest Author
Lionel Faull
Lionel Faull
Lionel is a reporter at the Mail & Guardian Centre for Investigative Journalism, Amabhungane.

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