Tackling corruption with conviction

Stephen Grootes writing for Eyewitness News on Thursday confirmed that the Constitutional Court has dropped a bombshell in the lap of the government after ruling that the legislation disbanding the Scorpions was essentially invalid and did not give the unit’s successor, the Hawks, enough independence.

Deputy Chief Justice Dikgang Moseneke read out the majority judgement, saying the Hawks did not have the right legal independence and that the unit “is insufficiently insulated from political influence in its structure and functioning. This is because the DPCI’s activities must be coordinated by Cabinet”.

According to the report, Parliament has been given 18 months to fix this legislation failing which it will be declared constitutionally invalid.

The Directorate of Special Operations, dubbed the Scorpions, was a multidisciplinary agency that investigated and prosecuted organised crime and corruption.

It formed part of the National Prosecuting Authority before being officially disbanded in January 2009 by president Kgalema Motlanthe.

The Scorpions were governed by the National Prosecuting Authority Act, 32, of 1998, which provided the Directorate with the necessary investigative powers. It was headed by the Deputy National Director of Public Prosecutions, Leonard McCarthy.

The Scorpions became famous, or notorious, for their raids on the houses of high-ranking politicians within the ANC and for investigations relating to the arms deal.

Vitally it was a special investigative unit under the South African ministry of justice which meant that it was not answerable to the minister of police and could tackle police corruption with impunity.

The same applied to the police who could keep an eye on the justice ministry, thus giving the public the ultimate checks-and-balances within the criminal justice system.

The ANC, however, was not amused and at the elective conference at Polokwane, wherein President Jacob Zuma was elected party president, the writing was on the wall.

The unit was then merged with the South African Police Services after a recommendation by the Minister of Safety and Security, Charles Nqakula.

This led to the new Directorate for Priority Crime Investigation, dubbed the Hawks, which target organised crime, economic crime, corruption, and other serious crime referred to it by the police National Commissioner.

It replaced the Scorpions while inheriting the core of the Scorpions’ investigative capacity, as well as all the cases it had been dealing with.

Minister of Police Nathi Mthethwa appointed Western Cape Deputy Commissioner of police Anwa Dramat to head the new unit.

Like the Scorpions before them, which were deadly in stinging criminals, the unit got off to a promising start.

The decision by the Constitutional Court on the other hand has called its independence into question.

Unlike the Scorpions, the Hawks have to keep an eye out for the head of the police, the minister and other members of their hierarchy.

By way of example, had the issue relating to police chief Bheki Cele and the Public Protector been raised during the time of the Scorpions, President Jacob Zuma could have thrown the ball to them knowing they would dig long and hard to find out what had transpired.

Obviously this is no longer the case.

The NPA, under its director Menzi Simelani, should have a unit with teeth to carry on their important work.

Anwa Dramat’s Hawks must be independent if corruption is to be tackled with conviction (no pun intended).

Whatever mistakes there were in the past — which had the police and Scorpions at each other’s throats — have been learned by now.

In response to the Constitutional Court ruling the government must ensure the independence of the Hawks by transferring them to the NPA and under the justice ministry, giving the public back their much needed checks-and-balances.

Rewriting legislation which leaves the status quo in place, ie, that the Hawks remain at the mercy of outside influence in its structure and functioning, will not cure the defect.

The remedy requires that the unit be independent or the legislation will be declared constitutionally invalid.