Meddling in South Africa's criminal justice institutions a recipe for disaster

The recent suspension of top Hawks officials feels all too familiar, says Hamadziripi Tamukamoyo.

Indicators show that in recent years, organised crime and corruption have been increasing in South Africa. Organised crime, as evidenced by growing incidents of vehicle and truck hijacking, along with high levels of commercial crime and corruption all require a dedicated and specialised response.

It is therefore deeply disconcerting that the country’s lead organisations for investigating complex crime and corruption are currently in a state of disarray. Implementing a clear action plan to strengthen the criminal justice system, as recommended by the National Development Plan, should be top of the agenda for the Directorate for Priority Crime Investigations (the DCPI, popularly known as the Hawks), the South African Police Service (SAPS) and the National Prosecuting Authority (NPA).

The current strain that these institutions are buckling under cannot sustain an environment where the rule of law prevails. On top of the well-documented scandals plaguing the SAPS and the NPA, the Hawks is the latest crime-fighting institution to experience intense political meddling. This is demonstrated by the recent suspensions of its various senior leaders, including national head, Anwa Dramat, and Gauteng provincial head, Shadrack Sibiya. These suspensions concern their alleged involvement in the illegal ‘rendition’ of four Zimbabwean nationals in 2010.

It is reassuring that those who disagree on legal matters can still approach the courts

Previous investigations have reportedly cleared these officials of any involvement, and they are not facing any criminal or disciplinary charges. In fact, the Independent Police Investigation Directorate sent its completed docket on the rendition matter to the NPA in February last year. To date, the NPA has not announced any decision about taking any action. The sudden suspension of these senior officers therefore raises many eyebrows when there is no clear evidence of wrongdoing on their part; nor is any process underway to robustly test the allegations against them.

Before these recent suspensions, various ‘illegal’ steps were taken by the SAPS to remove the KwaZulu-Natal head of the Hawks, Major-General Johan Booysen – a highly experienced police investigator who has gained recognition for being incorruptible. In fact, he arrested a person trying to bribe him with R2 million and handed over the money to the authorities. Rather than being seen as an example to keep in the SAPS, Booysen has been at the receiving end of various unsubstantiated allegations and has had to rely on the courts to continue serving in the police. The disciplinary charges against him were shown to be baseless in a hearing before an independent counsel, who not only exonerated Booysen of wrongdoing but also raised serious questions about the integrity of those who testified against him.

Given the ongoing attempts to appoint unsuitable people at the helm of the South African criminal justice system, the Helen Suzman Foundation brought an application before the Pretoria High Court seeking to set aside the suspension. On 23 January 2015, the court ruled that the suspension of Dramat was ‘unlawful and invalid’. Unfortunately, Police Minister Nathi Nhleko clearly wants to remove Dramat, since he immediately appealed the court’s ruling. This despite a costs order against Nhleko indicating that he has little to no chance of succeeding in another court.

After the bruising court battle that culminated in the landmark Glenister judgement by the Constitutional Court on 17 March 2011, one would expect our political leadership to have ensured that the ‘impugned’ legislation would be amended to strengthen the Hawks as South Africa’s leading anti-corruption agency.

Like other heads of criminal justice institutions, Dramat was also suspended under nebulous circumstances

The court ruled, for instance, that the SAPS Amendment Act (57 of 2008), which established the DCPI as a unit within the police, did not afford its head the required security of tenure. The act gave wide-ranging powers to the police minister to appoint the head of the DCPI, and to the police commissioner to dismiss members of the Hawks, including the head.

In November 2014, the Constitutional Court ruled that subsequent amendments to the act, such as the SAPS Amendment Act No 12, still did not afford the DCPI adequate structural independence due to provisions that gave ‘untrammelled’ power to the police minister to remove the head of the Hawks, and also the ‘undue political interference’ in the form of ministerial guidelines.

The court’s remedy to the ‘defects’ in the legislation was to ‘sever’ those parts of the act that it deemed to be inconsistent with the Constitution. The Helen Suzman Foundation contended in its application before the High Court that Dramat’s suspension was based on aspects of the legislation that were deleted by the Constitutional Court, adding that current legislation stipulates the Hawk’s head could only be suspended following a parliamentary process. The High Court concurred with this.

The SAPS has also had its fair share of dubious leadership appointments

It should be celebrated that South Africa still has judicial institutions that are largely free from political interference, and which can execute their duties without fear or favour. It is also reassuring that those who disagree on legal matters can still approach the courts and anticipate well reasoned judgements. What is not reassuring is that despite the substantial threat that crime and corruption present to people in South Africa, our political leaders do not seem to have a grasp of the irreparable damage that recurring courtroom battles will cause on the morale of those working in key criminal justice institutions, and on public confidence.

The Dramat saga is consistent with many past incidents, where the heads of key criminal justice institutions have been suspended or dismissed under nebulous circumstances. Moreover, some have been appointed despite clear evidence that they may not be best suited for posts in the upper echelons of the criminal justice system.

As far back as 2007, the former head of the NPA, Vusi Pikoli, was suspended and then subsequently dismissed in 2009, primarily due to his willingness to prosecute former SAPS national commissioner, Jackie Selebi, without fear or favour. His successor, Menzi Simelane, was appointed in the face of insurmountable evidence that he was not a ‘fit and proper’ person to head the entity. The SAPS has also had its fair share of dubious leadership appointments, some of whom left under the dark and ignominious cloud of corruption allegations.

Writing in The Economist special edition, The World in 2015, Editor in Chief John Micklethwait states that, ‘Of all the predictions to be made about 2015, none seems safer than the idea that across the great democracies people will feel deeply let down by those who lead them’. Let’s hope that this is one prediction that does not come to pass in South Africa in general, but more specifically, also in relation to the affairs of criminal justice institutions that have a critical role to play.

Hamadziripi Tamukamoyo, Researcher, Governance, Crime and Justice Division, ISS Pretoria

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