Hawks Bill passed

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The passing of the South African Police Service (SAPS) Amendment Bill will represent a step forward in the fight against organised crime and corruption, says police minister Nathi Mthethwa.

Speaking during the debate on the SAPS Amendment Bill in Parliament yesterday, the minister explained that in 2008/09, government and Parliament engaged in a lengthy and consultative process that ultimately resulted in the establishment of the Directorate for Priority Crime Investigations (DPCI) within the SAPS, the state BuaNews agency reports.

After finalising the process to establish the DPCI, it was agreed that the legislation which created the unit would be subject to a three-year review in terms of Section 17K of the SAPS Amendment Act of 2009 after being enacted. “This review was aimed at using the operational experience gained in these three years to further strengthen our legislation and the effective functioning of the DPCI,” he said. Then, in March 2011, a judgment by the Constitutional Court declared chapter 6 A of the South African Police Service Act, and which deals with the DPCI, to be inconsistent with the Constitution because it failed to secure an adequate degree of independence for the DPCI.

The Constitutional Court suspended the declaration of invalidity for a period of 18 months to afford Parliament an opportunity to remedy the defect. “The Bill that is before this House therefore seeks to achieve two objectives. The first is to address our commitment in our undertaking, that we would review and improve the legislation governing the DPCI, three years after its enactment. Secondly, to honour and respond to the Constitutional Court’s ruling regarding the DPCI,” the minister explained.

The process of drafting the legislation began in April 2011 and included a serious review and analysis of what the Constitutional Court ruling actually implied, a review of international standards approaches and positions regarding such organised crime and corruption fighting mechanisms. In addition, there was also a review of different options and extensive consultations with National Treasury and the DPSA regarding what models would best work during the process of drafting the legislation, Mthethwa said.
“This was a relatively detailed process and took about 10 months to complete. However, at the end of that process we had satisfied ourselves that amendments to Chapter 6A of the South African Police Service Act and strengthening the role and position of the DPCI, was the correct way to go,” he added.

The current Bill seeks to align the legislation with the Constitutional Court judgment and based on the extensive research and analysis process, also seeks to improve the legislation governing the functioning of the DPCI and the approach to fighting organised, economic, transnational crime and corruption. Mthethwa said the Bill provided the DPCI with the adequate structural and operational independence to perform its functions.
“The Bill ensures that there will be a strong legal basis for the approach to organised crime and corruption. This should include a clear mandate, institutional placement, appointment and removal processes, internal structures, functions, jurisdiction, powers, responsibilities, budget, personnel related matters relationship with other institutions accountability and as well as reporting lines,” he added.

The minister said the Bill addressed all the relevant issues and ensured that government was able to enhance and build on existing successes and approaches in the fight against corruption and organised crime, BuaNews said. “In the final analysis, the Bill further recognises that anti-corruption bodies or structures do not operate in a vacuum. It emphasises a need for strong coordination and cooperation with other government departments and specialised areas. ”It also recognises that SAPS has a Constitutional mandate to fight crime and that such mandate must include organised, economic and transnational crimes as well as corruption,” said Mthethwa.

The opposition Democratic Alliance’s Shadow Minister of Police, Dianne Kohler Barnard, said in reply that “[t]inkering with the wheels of a car that has no engine is a futile exercise”.
“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,” she said.
“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.
“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. … 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.