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Published: 23 May 2012
|DA: Kohler-Barnard: Address by Democratic Alliance Shadow Minister of Police, on the Hawks bill, Pariliament (23/05/2012)|
As a member of the Police Portfolio Committee I have found myself asking whether it is enough for Parliament to achieve something that may at best be described as ‘adequate’.
Tinkering with the wheels of a car that has no engine is a futile exercise. It will not put this 4th democratic parliament on the road to the history books as having achieved something extraordinary. We had that opportunity, and we missed it.
As a country we had an independent anti-corruption unit in the Scorpions, but because it stung various top politicians, some of them in the House with us today, the Scorpions went from hero to zero in the eyes of the ANC. As a nation the Scorpions made us proud. Their conviction rate of 94% and their mere presence assured us that there are good guys doing a great job.
Today we are on the brink of handing to the National Council of Provinces a Bill which advocates and law professors told us should have been worded differently. But once the police portfolio committee completed the tick-box exercise of public hearings, the committee moved on as though they had never happened.
Do we have a body which is sufficiently independent to tackle the challenges of systemic and endemic corruption eating away at the very foundation of our democracy? I don’t think so. Bob Glenister, who won this case in the Constitutional Court, doesn’t think so either. Of course it’s not the DA or Bob Glenister who has to be convinced; it’s the judges of the Constitutional Court who must be satisfied.
We have until 17 September to pass this Bill, but began processing it in March. Members of civil society, academia and the official opposition spent hours pouring over the legislation, concluding that sufficient independence is unattainable within the SAPS hierarchy. Our objections fell on deaf ears.
In the committee’s attempts to force a square peg into a round hole, I fear there were members who focussed on the Polokwane resolution of 2007, on which Luthuli House has to report back at the upcoming conference in Mangaung.
The DA was obviously not expecting to see, for example, the same degree of independence allocated to the Hawks as enjoyed by the judiciary and the prosecuting authority. Less could be adequate if we were a country where corruption is not endemic, and if indeed we were a country where there is zero tolerance for corruption. We are not, unfortunately.
If we were, then “adequate independence” may be set at a relatively lower standard than that which is required to sufficiently arm the state to see off any major challenges posed by corruption. “Adequate independence” must be adequate to the realities of the day.
It is a relative concept. The judgement determines that: “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order”.
SAPS itself was labelled as a dysfunctional part of our dysfunctional criminal justice administration by Advocate the Honourable Johnny de Lange, who of course paid a huge political price for telling that particular truth.
How else could we describe an entity that boasts a former Police Chief who is languishing in prison – albeit not a cell, serving a 15-year sentence for corruption; his successor suspended pending the findings of a board of inquiry which is likely to find him incompetent or crooked; his acting substitute under investigation by the Public Protector for alleged maladministration and irregular conduct; a Crime Intelligence boss, Richard Mdluli, who has civil society advocacy body, Freedom Under Law, seeking to interdict him from carrying out his duties because the Minister failed to do the right thing.
This House knows that the President himself has 783 unresolved counts of corruption against him, charges which could be revived if the decision not to proceed on them is successfully reviewed in the courts at the insistence of the Democratic Alliance.
All of this speaks to the fact that an effective anti-corruption unit ought to be located as far away from the SAPS and the executive as possible. Anti-corruption units elsewhere report to Parliament and not to the executive.
What is before us today is a Bill that establishes an entity within the SAPS that flouts SAPS regulations, allows a junior to supersede a superior officer, who on the other hand in the Constitution controls the SAPS in its entirety. What has been created is necessary to speak to the judgement, but what has been created is a convoluted constitutional conundrum.
Nowhere in the Constitution is there a clause which reads that the National Police Commissioner controls all of the SAPS except for the doings of the Hawks.
The Hawks are not a specialised anti-corruption unit – it deals with the prevention, investigation and combating of national priority offences, in particular serious organised and
transnational crime, serious commercial crime and serious corruption.
The efforts to make it seem independent of political interference have been legion, but one of the most important calls of the judgement regarding public perception was simply pushed aside. Will the public have confidence in a unit where the head is merely appointed by the Minister with no involvement of Parliament, where his or her rank is subordinate to the National Police Commissioner? It is hard to imagine that the Bill before us today convincingly allays public fears and concerns of political interference in the work of the Hawks.
A month and a half of fiddling and tinkering with the Hawks is unlikely to persuade the public that Parliament has adequately protected the Hawks from fiddling and tinkering by corrupt politicians in high places and in the halls of government.
In the judgement it said the now-defunct Scorpions were independent. The Hawks are not. The Hawks are not the Scorpions and little effort has been made to replicate what was independent.
In conclusion, the Bill before the House today does not adequately deal with at least three of the key concerns consistently raised by the Democratic Alliance.
Financial independence is a prerequisite for independent anti-corruption efforts. The National Police Commissioner remains the Accounting Officer for the Hawks budget and the money allocated to it forms part of the budget vote for the Police. The Hawks, like the Independent Police Investigative Directorate (IPID), should have a separate budget vote and require greater financial independence to ensure that they will not face spurious budget cuts or resource constraints when zooming in on corrupt officials and politicians.
The Hawks and its members remain in the department of police with all the powers, duties and functions of police officers. While it is necessary for the Hawks to have these powers and functions, it is unacceptable that their members operate within the rank-and-file of the SAPS where independence is undermined by a culture of taking orders from superiors without question.
The appointment process for the Head of the Hawks is still the overall responsibility of the Minister of Police – with the concurrence of Cabinet. The DA put five recommendations to the committee to involve Parliament, but the committee disagreed. The committee failed to secure a positive role for Parliament – as custodian of the democratic voice and concerns of the people of South Africa – in the appointment of the head of this corruption-buster.
The haste with which this Bill was introduced, deliberated and finalised is of great concern. It is apparent that there was a predetermined outcome and the bare minimum was done on the Bill in its short time before the committee. It is also unfortunate that Parliament was not given adequate time to consider a menu of options in creating a truly confidence-inspiring corruption-buster for our country.
The DA maintains that so much more could and should have been done. Parliament missed a golden opportunity to assert itself as legislative authority.
South Africans deserve an independent, effective and highly specialised, prosecution-driven anti-corruption unit to combat the scourge of corruption that undermines the goals of increasing growth, creating jobs and fighting poverty.
The Hawks, as created by this Bill, is very unlikely to be that independent, effective and highly specialised anti-corruption unit which will courageously combat the scourge of corruption.
The DA will be voting against this Bill today.