Why a South African Anti-Corruption Agency Must be Independent of the Police to be Effective
The SAPS Amendment Bill recently tabled before parliament retains the specialised anti-corruption directorate within the South African Police Service (SAPS). This is likely to hinder its ability to effectively investigate corruption committed by the political elite.
Gareth Newham,
Head of the Crime and Justice Programme, ISS Pretoria
If it was not already clear why a dedicated
anti-corruption agency capable of tackling powerfully connected people had to
be independent of the South African Police Service (SAPS), the recent, and
indeed ongoing failures of police leadership over the past few years should put
this into perspective.
In 2010, ex-SAPS National Commissioner Jackie
Selebi was convicted on corruption charges and sentenced to 15 years in prison.
In 2011, the SAPS National Commissioner, Bheki Cele, was suspended pending the
outcome of an inquiry into his fitness for office. This followed a finding by
the Public Protector that his actions in relation to a R1.67 billion police
lease deal were ‘improper, unlawful and amounted to
maladministration.’
In addition, one of the most powerful SAPS
Divisional Commissioners, head of Crime Intelligence Lieutenant-General Richard
Mdluli, is facing an astonishing array of allegations implicating him and his
close colleagues in murder, rape and wide-scale corruption. The National Minister of Police, Nathi
Mthethwa has been accused of halting the Hawks’ investigation into Mdluli so as
to protect him from further criminal charges, given Mdluli’s willingness to use
his position to support Jacob Zuma’s intention to run for a second term as ANC
president. Moreover, there are allegations emerging from investigations by the
Hawks that Mthethwa illegally benefitted from the SAPS Secret Service Account
to the tune of R195 581 for renovations to his personal residence, which was
authorised by Mdluli.
Whether or not these allegations are
ultimately proven, they have certainly severely undermined the public image of
the police and further demoralised many of the honest hard working police
officials expected to place themselves at risk in fighting crime. Moreover, such allegations point to reasons
why the political elite might choose not to strengthen the independence and
ability of the Directorate of Priority Crimes Investigations (DPCI), commonly
known as the Hawks, to investigate corruption committed by those at the highest levels of
government.
In March 2011, the Constitutional Court, in the matter of ‘Hugh
Glenister vs the President of the Republic of South Africa & others’, ruled
that the legislation establishing the DPCI was unconstitutional and invalid.
This was because the legislation failed to secure an adequate degree of
independence for the DPCI, which was charged with investigating corruption
amongst other serious priority crimes. The Court gave the government and
parliament 18 months to rectify this shortcoming so as to ensure that South
Africa would meet both its constitutional and international obligations with
regards to establishing an independent agency that can effectively tackle
corruption at all levels of society.
Not only do South Africa’s obligations require
that we have an anti-corruption agency that is structurally and operationally
independent, the Court ruled that it must also be seen to be independent by the public. It is therefore disappointing
that the government appears to have ignored this opportunity provided by the
Constitutional Court to establish a truly independent and effective
anti-corruption unit.
The 18 months provided by the Constitutional
Court was not used to widely consult and develop consensus about the best way
to establish an independent and effective anti-corruption agency. Rather, six months before the deadline, the Minister
of Police tabled the SAPS Amendment Bill before parliament that provided a
minimalistic response to the Court’s findings.
The biggest shortcoming of the Bill is that the
Hawks remain a directorate within the SAPS. Instead of establishing a truly
independent anti-corruption agency, the Bill tries to provide a level of
protection and additional authority to the head of the Hawks, by inter alia:
·
allowing the Minister to appoint and dismiss the
head of the Hawks so that they don’t
have to report directly to the SAPS National Commissioner,
·
allowing the head of the Hawks to decide on who
may be seconded to assist the directorate from outside of the SAPS and,
·
in the case of a dispute about which cases to
investigate, having the authority to overrule the National Commissioner
Such provisions however, do not address the
various ways in which the Hawks may continue to be subject to political
interference and manipulation. The Constitutional Court found that the SAPS
National Commissioner was inadequately independent because the Minister of
Police could too easily appoint and remove the incumbent. In theory, and in
practice, the SAPS National Commissioner is therefore a political appointee
and, as has been recently alleged, subject to political manipulation. However,
the draft legislation currently before parliament continues to allow the SAPS
National Commissioner to determine the budget of the Hawks after consultation
with its head, and to report on the budget before parliament. It does not take
much effort to imagine that a Commissioner of Police under investigation by the
Hawks might use his or her position to undermine the investigation, or to
manipulate the head of the unit.
The Bill also gives the Minister of Police the
authority to both appoint and initiate proceedings to dismiss the head of the
Hawks, who may be suspended without salary before a disciplinary inquiry has
been started.
Finally, the Bill maintains the head of the
Hawks as a SAPS Deputy National Commissioner, who according to protocol will be
expected to salute the SAPS National Commissioner. Hawk members will remain
part of the SAPS in every way and will be subject to all its rules,
regulations, resources and the dynamics of its organisational culture. How such a directorate will be seen to be
truly independent by the general public is difficult to fathom.
These are but a few of the many reasons why, for
an anti-corruption agency to be truly effective and independent, it will have
to be a separate organisation from the SAPS.
Of the 21 submissions made before the Parliamentary Portfolio Committee
on Police, 20 argued that the Bill fell short of what was required to
effectively investigate corruption committed by South Africa’s political elite.
We can only hope that the committee hears the concerns of civil society and
frees the Hawks to hunt corruption wherever it may occur.
