The Hawks were never meant to succeed in fighting corruption. The intention was to shield politicians from being investigated, says Mcebisi Ndletyana.

Johannesburg – “Honourable Holomisa, I assure you that what you call instability at the top echelons of our crime-busting institutions is being attended to. This matter is of great concern to us,” said President Jacob Zuma in his response to debates on his State of the Nation Address.

In what seemed intended to reassure Holomisa and the watching public, Zuma elaborated: “There is no government that would not be worried, even if it was only two or three institutions that were affected. Even if it was a single institution it would be one too many, given that we have prioritised the fight against crime and corruption.”

However, proceedings at the Gauteng High Court, just days earlier, were less reassuring. Judge Bill Prinsloo had ruled against Police Minister Nathi Nhleko that he had no right to suspend Anwar Dramat, the national head of the Hawks crime-fighting unit.

Ironically, the Hawks were ostensibly going to be more stable than their predecessor, the Scorpions. Zuma’s ANC had denounced the Scorpions as a political weapon, wielded by then-president Thabo Mbeki against political opponents.

Zuma was then the subject of a Scorpions investigation.

He denied any wrongdoing, and ascribed the Scorpions’ probe to political manipulation to prevent him succeeding Mbeki.

It now appears, however, that the post-Polokwane leadership is doing exactly what it derided Mbeki for doing. Rather than form the Hawks into an effective and independent instrument against crime, as they purported to do, they resolved to weaken it from the moment of its inception.

That’s why the Hawks became the subject of the courts, even before its founding legislation was finalised. Hugh Glenister, the businessman who’s been fighting a court battle against the government, went to court in March 2008, alleging that the parliamentary process violated law-making procedures. He complained that Parliament was unlikely to invite public input, which is an integral part of law-making. The allegation proved to be groundless, as the court found that Parliament had embarked on public consultations.

Glenister’s concern, however, was not entirely unfounded. It is hard to see what impact, if any, public opinion had on the disbandment of the Scorpions and its subsequent replacement by the Hawks.

The decision to disband the Scorpions was adopted at Polokwane as a conference resolution. The government was given firm instructions to implement that resolution.

Some delegates even insisted that the process be concluded in three months, beginning in the January – a month after the catalytic conference. ANC MPs were zealous in wanting to implement the party’s instruction.

Maggie Sotyu, chairwoman of Parliament’s portfolio committee on safety and security, couldn’t contain her enthusiasm and howled: “We are going to dissolve the Scorpions.”

She made the statement even before public consultations, which signalled that the exercise was likely to be a farce.

But the courts refused Glenister’s request to halt the legislative process. Law-making, the judgment maintained, was an executive prerogative, and it was for Parliament to pass the law.

Another legal challenge, later in the year, that some of the MPs recuse themselves from voting, also failed. Glenister argued that a number of the MPs, because they had been investigated and prosecuted by the NPA, were vengeful. Their voters were not rational, but prejudiced. That, too, failed, partly on similar grounds as the initial challenge.

The judgments maintained that courts could only intervene to ensure the constitutionality of the act. And those acts did not pass constitutional muster. Upon referral to the Constitutional Court in September 2010, the majority of the justices found a lot wrong with the new laws.

The gist of the majority ruling was that the South African Police Service Amendment Act, in particular, was designed to create a lame crime-fighting institution. And, the meekness was not just about the likely ineffectiveness of the institution, but also the delirious implications thereof on South Africa’s constitutional order.

Writing the majority decision, Justices Dikgang Moseneke and Edwin Cameron reasoned: “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and pernicious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, and the rule of law and the foundational values of our nascent constitutional project.”

To be effective, the justices explained, it was critical that the Hawks became independent.

As the act was then defined, the Hawks were not only going to be integrated into the police service, but would also be subject to ministerial control.

That control was to be exercised in two ways: Firstly, through determination of the range and nature of crimes the Hawks would investigate. The minister could decide what or whom the unit could or could not investigate.

Secondly, the minister had powers to suspend, and following an inquiry, fire the head of the Hawks. Unlike with the previous NPA Act, Parliament would not be involved in the process, but would only be told of the reasons for the dismissal after the act.

In other words, the executive had sole powers over the tenure of the head of the re-constituted crime-busting institution.

The executive could decide who he must investigate, and fire him if it deemed fit, without Parliament doing a thing about it. For these reasons, the Constitutional Court ruled in March 2011 that the law was unconstitutional. Parliament was given 18 months to revise it and come back with constitutionally sound legislation.

Parliament revised the act. Once again the revised legislation not only failed the constitutional test but, as Chief Justice Mogoeng Mogoeng observed, the quality of writing was poor and “could use some improvement”.

The minister still retained untrammelled powers to decide which cases the Hawks could investigate and had arbitrary powers to fire its institutional head without meaningful involvement of Parliament.

Despite the multiple rulings by the Constitutional Court, and the legal discussions on the subject for more than five years, Minister Nhleko still went ahead to do exactly what the court had ruled unconstitutional.

He suspended Dramat for allegedly being involved, some five years ago, in the illegal rendition of Zimbabweans.

What is happening to Dramat shouldn’t be a surprise. The Hawks were never meant to succeed in fighting corruption. The intention was to shield politicians from being investigated. We now have carte blanche for politicians to loot public resources with impunity.

Does President Zuma really expect us to believe he’s serious about fighting corruption? Really, now!

* Mcebisi Ndletyana is head of the political economy faculty at Mapungubwe Institute for Strategic Reflection (Mistra).

** The views expressed here are not necessarily those of Independent Media.

Sunday Independent