In the benchmark Constitutional Court judgment of Glenister II, the majority held that “our law demands a body outside executive control to deal effectively with corruption”. This body is meant to be the Directorate for Priority Crime Investigation (DPCI), known as the Hawks.
We say “meant to be” because practice seemingly reveals the disconcerting use of the Hawks as a political tool to further partisan and personal agendas of those who wield the real power in our democracy.
Established under Chapter 6A of the South African Police Service Act 68 of 1995, the essential job description of the Hawks is to “prevent, combat and investigate national priority offences, in particular serious organised crime, serious commercial crime and serious corruption”.
The investigation into the establishment and activities of the National Research Group, called by some the “rogue spy unit”, in the South African Revenue Service (Sars) during Pravin Gordhan’s tenure as commissioner, worryingly appears to fall outside this mandate. As disconcerting is the fact that, notwithstanding that this investigation was started in May 2015, when Sars commissioner Tom Moyane laid a criminal complaint on this score, the Hawks delivered an interrogative letter about this unit to Gordhan, now finance minister, four days before his budget speech this year.
This timing calls into question the motives of those at the helm of the Hawks and their allies in the Jacob Zuma-ANC camp — something Gordhan has spoken about in his public statement on February 26: “There is a group of people that are not interested in the economic stability of this country and the welfare of its people. It seems they are interested in disrupting institutions and destroying reputations.”
Most unfortunate is that the infrastructure of our criminal justice system is being exploited to achieve dubious ends. It would thus appear opportune to take stock of what the constitutionally ordained role of the Hawks is to highlight what it is not.
Out of the ashes
The Hawks rose out of the ashes of the Directorate of Special Operations (the Scorpions).
Unlike the Scorpions, the Hawks is not located in the office of the National Prosecuting Authority, which is explicitly mandated by the Constitution to function without “fear, favour or prejudice”. The Hawks is located in the South African Police Service — a fact that initially caused a public brouhaha given that, under section 206 of the Constitution, a politician is ultimately “responsible for policing”. The argument was that this political accountability could not be squared with the constitutional need for a corruption-busting unit to be adequately independent.
The Constitutional Court in the seminal Glenister II case found that: “What is required is not insulation from political accountability, but only insulation from a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit.” The theory espoused in Glenister II has failed horribly to align with practice.
What is this theory? First, the court affirmed that the Constitution is the primal source of the state’s duty to fight corruption. One of the obvious consequences of corruption is that public funds are diverted from pressing, worthy and lawful causes, thereby corroding basic human rights such as equality, dignity and socioeconomic rights. The “scheme of our Constitution” thus “points to the cardinal need for an independent entity to combat corruption”.
Adequate independence is necessarily linked to public confidence in an entity’s autonomy-protecting features. The Constitutional Court found that the legislative provisions in the Police Act creating the Hawks failed to afford this body adequate autonomy in that it was “insufficiently insulated from political interference in its structure and functioning”.
Inadequate security of tenure
Among other things, the court took issue with the fact that members of the Hawks were not given adequate security of tenure and remuneration and, more significantly, that “the new entity’s activities must be coordinated by Cabinet”. On this score, it was held that empowering a ministerial committee to determine policy guidelines in respect of the functioning of the Hawks creates a plain risk of executive and political meddling in the unit’s investigative mandate.
This the court found to be constitutionally impermissible given that such broad guidelines could, for example, “specify categories of offences that it is not appropriate for the DPCI to investigate — or, conceivably, categories of political office bearers whom the DPCI is prohibited from investigating”.
As we have seen, through political meddling, the opposite can also prove to be true, insofar as the Hawks appears to have been prompted to investigate matters outside its legal mandate. The court in Glenister II expressed grave disquiet at the idea of the “very anti-corruption nature of the directorate” resting upon “a political say-so” flowing from a discretionary power “outside the confines of the legislation itself”.
Chapter 6A of the Police Act was declared unconstitutional and invalid and the matter returned to the legislative drawing board. Parliament again failed to get things right and round two ensued in the 2015 Constitutional Court case of Helen Suzman Foundation v President of the Republic of South Africa. Among other things, Chief Justice Mogoeng Mogoeng reiterated the incompatibility of Cabinet coordination of the Hawks’s activities with the need for functional independence.
The provisions for the controversial “policy guidelines” — now determined by the minister of police rather than a ministerial committee — were again found to be constitutionally wanting given that, through them, a political actor could inappropriately interfere with the unit’s functions: a single senior politician is given the authority “to determine the limits, outlines and contents of the new entity’s work. That … is inimical to independence.” The court also expressed concern about the legislature’s failure to define clearly the unit’s operational jurisdiction or mandate — something that remains a problem as the current events so poignantly illustrate.
In this regard, open-ended terminology such as “selected offences” was found not to pass constitutional muster: “[A] very important institution like an anticorruption agency should never be left to guess what its functions are, as it is now forced to do in relation to this category of offences. Whoever has the power to determine how to select, who selects and which offences are ‘selected offences’, could easily limit the functional independence of the DPCI. [Its] jurisdiction is an area where little or no room should exist for executive or political interference.”
Given this legislative lacuna it would seem such political interference has ensued and the Hawks has been compromised.
What are the implications for the Hawks? If South African history has taught us anything, it is that effective law enforcement institutions require public standing and legitimacy. They cannot operate in an environment in which the nature and extent of their legal mandate is uncertain and in which the enormous power they wield is perceived to be used for political ends.
Clarifying the powers of the Hawks is of great moment. Those at the helm of this body would do well to bear in mind the costs of over-stepping. – Lauren Kohn and Mark Shaw
Lauren Kohn lectures in constitutional and administrative law at the University of Cape Town and is an attorney of the high court. Mark Shaw is chair of the South African Research Chairs Initiative and chair of justice and security at UCT.