When he began his campaign against the dissolution of the Directorate: Special Operations, better known as the Scorpions, Hugh Glenister got a lot of attention.
Here was a lone entrepreneur, with no apparent political agenda, putting very large sums of his own money on the line for a principle he felt deeply about: South Africa’s need for an effective, independent corruption-fighting agency. Amid the moral confusion of the ANC’s succession battle, his position seemed uncompromised and clear.
Once the Scorpions had been shut down, however, and the efforts by supporters of Thabo Mbeki to manipulate the unit were revealed, his mission began to seem quixotic, even marginal — out of key with the country’s desire to put Polokwane behind it and get on with life under Jacob Zuma.
The critics of the Scorpions within the ANC, the government and the police service had won and were busy consolidating the Directorate for Priority Crime Investigation, aka the Hawks. And many of those who had argued the importance of a robustly independent anticorruption unit were gutted by evidence of interference in the Scorpions’ work and had wearily accepted the prevailing political reality.
Picking up the torch
Perhaps the special investigating unit would pick up the torch, we hoped, or the interministerial task team, but sleaze and graft would continue to undermine our polity until a credible alternative emerged.
The Constitutional Court, prodded by Glenister and the Helen Suzman Foundation, has now delivered a bracing reminder that we live in a constitutional democracy, where sheer political force is limited by our founding law.
The questions at issue in the judgment handed down on Thursday are complex, but the core of the finding in Glenister’s favour is fairly straightforward: the architecture of our Constitution, with its Bill of Rights and commitment to clean, efficient and open government, demands an independent anticorruption body, structurally designed to limit political interference. So do the international conventions to which South Africa is committed.
The Hawks, the court found, don’t meet that standard. Not in the way they are appointed and paid, not in the way they are managed and not in the broadness of their “priority crime” remit. Because of that legislative failure the SAPS Act which disestablished the Scorpions and created the Hawks is invalid.
Of course, it has to be considered that the Scorpions no longer exist and the Hawks do. Investigations are under way and criminals need catching. So the court has given Parliament 18 months to come up with an alternative.
The judgment is a monument to the rule of law, but also to activism, not least that of the tilting-at-windmills variety. One note of caution is necessary, however. The majority judgment was written by Deputy Chief Justice Dikgang Moseneke and Judge Edwin Cameron, with justices Johan Froneman, Bess Nkabinde and Thembile Skweyiya concurring. The minority view, written by Chief Justice Sandile Ngcobo, was backed by acting judge Frederik Brand and justices Zac Yacoob and Mogoeng Mogoeng.
It is a thin majority and its authorship revives memories of the ANC’s assault on Moseneke and the Pius Langa court over its findings relating to Schabir Shaik and Jacob Zuma. It will take discipline to ensure that the political fog over our institutions is dispersed by this judgment rather than thickened.
To read the second half of the editorial (“Cosatu’s deafening silence”) – click here