Strengthening Legislation for a South African Anti-Corruption Agency
South Africa is one step closer to having an independent agency that should be able to investigate and act against high-level corruption
Dr. Chandre Gould & Gareth Newham,
Senior researcher and programme head, Crime and Justice Programme, ISS Pretoria
South Africa is one step closer to having an independent
agency that should be able to investigate and act against high-level
corruption. On 17 May the parliamentary Portfolio Committee on Police, chaired
by Ms. Sindiswa Chikunga, approved a new version of the Bill that is a
significant improvement on the earlier version. The latest version reflects
many of the concerns and proposals made by civil society organisations during
the public hearing process.
The South African Police Service (SAPS) Amendment Bill
emerged as the result of the Constitutional Court judgement on 17 March 2011,
which found that the Directorate of Priority Operations (also known as the
Hawks) was not adequately independent as required by the Constitution and South
Africa’s international legal obligations. This was because there were a number
of ways in which political interference could impact on the work of the
Directorate.
Civil society organisations that made submissions to
parliament in April this year, including the Institute for Security Studies
(ISS) were almost unanimous in calling for the new legislation to re-locate the
DPCI outside of the SAPS. This, they argued, would be the best way for the unit
to be truly independent, innovative and importantly, to secure public confidence.
However, the new version of the Bill does not go this far
and therefore the Hawks will remain a Directorate of the SAPS. Nevertheless,
revisions to the Bill have strengthened the Directorate and should reduce its
vulnerability to political interference. These measures include:
- A requirement for the Minister
of Police to consider both the integrity and conscientiousness of the person to
be appointed to the Head of the DPCI.
- Giving the head of the DPCI the
authority to over-rule the National Commissioner of Police in decisions
regarding which crimes will be investigated by the unit.
- Allowing the Head of the DPCI
to determine the organisations’ budget, which will be ‘ring-fenced’ for use
only by the DPCI, and requiring the head to report directly to parliament on
the expenditure of the Directorate.
- Giving the Head of the DPCI the
final authority in the recruitment and dismissal of all DPCI staff; and
- Making it a criminal offence,
punishable by up to two years in prison, for anybody who attempts to hinder,
obstruct or interfere with the work of the DPCI. This is an important
protection in the light of recent allegations that the Minister of Police
interfered with a DPCI investigation into controversial SAPS Crime Intelligence
Head, Richard Mdluli.
Other improvements in the revised Bill includes that it sets
out some clear criteria about the kind of person that should be appointed as
the head of the DPCI. The Bill states that this person should be “fit and
proper” and that, “due regard” be given “to his or her experience,
conscientiousness and integrity.” This is particularly important in the light
of several instances in which individuals with questionable integrity and
ability have been appointed to key positions in the criminal justice system.
This has caused both the SAPS and the National Prosecuting Authority to
struggle with issues of staff morale and organisational efficiency.
The Bill also addresses concerns raised about the potential
for Ministerial influence over the work of the unit. While the controversial
Ministerial Committee that previously had an ‘oversight’ role remains in
existence, the Bill has stripped it of all powers to interfere and allocated it
the task of only coordinating the activities of the DPCI and other government
departments. This Committee, made up of the Ministers of Police, Finance, Home
Affairs, State Security and Justice also has to report to parliament about its
activities.
The Bill has also gone some way towards improving the
complaints mechanism that can be used to address complaints made either by or
against members of the DPCI. The retired
judge appointed to respond to any complaints will have a budget to facilitate
his or her work and interference with his or her work will also be a criminal
offence.
One significant weakness remains, which will need to be
addressed before the Bill is signed into law. The process leading to the
dismissal of the head of the unit is both ambiguous and allows the Minister the
discretion to determine whether the head, during any period of suspension will
receive a salary. The ISS and others argued that this creates the opportunity
for political influence over the head of the unit. Fixing this is essential to
securing the independence of the Hawks.
The future of this Bill remains somewhat unclear since the
announcement by the Institute for Accountability in Southern Africa that it
intends to challenge the Constitutionality of the Bill. This will serve to
ensure that the final version of the Bill does meet the requirements of the
Constitution and is a move that has been welcomed by the Portfolio Committee.
Whatever the outcome of this process, and despite a few remaining
inconsistencies and shortcomings, the Bill has gone a long way towards
addressing the concerns raised in parliament and will strengthen the
independence of the Hawks.
Yet, the success or failure of the Hawks will
largely be determined by who is appointed to its Head. If a political
appointment is made, the Hawks will be unlikely to pursue anyone that the
President or Minister of Police may wish to protect. It is only if a person
with the necessary expertise, skills and integrity is appointed that the Hawks
be able to be an effective anti-corruption unit.
* First published in City Press on 3 June
