Speaker, as a member of the Police Portfolio Committee, I have found myself asking over the past weeks whether it is enough to achieve something that may at best be described as "adequate". Is this how the Fourth Democratic Parliament should be written up in our history books, as "adequate"?
When the 130-page Glenister judgment was presented, it was stated that only the Constitutional Court had the jurisdiction to decide whether Parliament had failed to facilitate public involvement in the legislative process. In an attempt to ensure that we did not fall foul of the Constitutional Court on this occasion, the committee conducted public hearings, and then, with 21 submissions, 12 of them substantive, and all but one calling for the unit to be removed from the SA Police Service, the committee proceeded to ignore them!
One must ask why. The answer lies in the fact that the officials, who, some claim, actually run Parliament rather than the hon members, took it upon themselves not only to take a full year to put together what was at first glance a deeply flawed Bill, but also not to give the committee options - a proposal to place it under the National Prosecuting Authority, or another perhaps creating a unit with its own budget, such as IPID. No, it seems the officials decided to give us just one option, which we were then instructed to work with, and which tinkered with the Hawks in an attempt to comply with the Constitutional Court ruling.
Speaker, tinkering with the wheels of a car that has no engine is a futile exercise. It will not put this Fourth Democratic Parliament on the road into the history books as having achieved something extraordinary. And we did have that opportunity, but it was an opportunity missed. That conglomeration of SAPS units which the Ministry decided to name the Hawks, as though it was everyman's answer to the Scorpions, certainly does good work on priority crime. However, here's the rub - when it comes to looking at corruption in high places its role has to date been extremely limited. The reasons for this are legion but, to sum it up, it is a body within the SAPS - its members are part of a ranked structure where juniors take and obey orders from their superiors, and their superiors are politicians!
When the Bills shutting down the Scorpions were compiled, we were offered four options, and they were actually taken to the ANC caucus for a vote by members who had never spent a single second in the deliberations or on the Police portfolio committee. Every attempt at creating a unit that was not the Scorpions, but that still had a modicum of independence, was thrown out and so it was left to the SAPS to try to sell the Hawks as a body that the South African public believed were independent. They failed at that job miserably.
As a country, we did have an independent unit, but because it stung various top politicians, some of them in this House today, they went from hero to zero in the ANC's eyes. As a nation the Scorpions made us proud of their conviction record of 94%, and their mere presence assured us that the good guys were doing a great job. The unit became the bar other nations sought to reach.
Today we stand on the brink of handing the NCOP a Bill that the banks of 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 it 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! Hugh Glenister, who won this case in the Constitutional Court, doesn't think so. But of course, what we think doesn't really matter! It's not the DA or Hugh 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, which will address Parliament's failure to secure an adequate degree of independence for the Hawks in the existing legislation.
We began processing this Bill in March, and hours were spent poring over legislation by members of civil society, academia and, indeed, the official opposition. Our stating that sufficient independence was unattainable within the SAPS hierarchy fell on deaf ears. I hear the laughter - it is still going on! The Institute for Security Studies, the Institute for Accountability in Southern Africa, and the Helen Suzman Foundation, to name just three, all said, "Take it out of the SAPS!" The Constitutional Court judgment stated:
To create an anti-corruption unit that is not adequately independent would not constitute a reasonable step.
The court approved the criteria applicable for the creation of a best practice anticorruption unit of the kind South Africa has promised its treaty partners around the world. It would be a unit that would: pay specialised attention to corruption; have properly focused training; be independent from political interference, influence and manipulation; have resourcing that is guaranteed; and have security of tenure of staff.
In the committee's attempts to force a square peg into a round hole, I fear there were members who focused on the Polokwane resolution of 2007, on which Luthuli House has to report back at the upcoming conference in Mangaung. The resolution then was that the powers of the Scorpions would be tucked safely back into the SAPS, where political control over the unit could be maintained. And, indeed, what we saw was a single-minded determination to ensure that this Bill spoke to the initial move after the scrapping of the Scorpions, and this Bill today does just that, irrespective of the ruling of the court, and irrespective of what will be of greatest benefit to the citizens of South Africa. Never once was that even referred to by those determined to make the square peg fit.
The DA was obviously not expecting to see, for example, the degree of independence enjoyed by the judiciary or the National Prosecuting Authority. Less could be adequate, if we were not a country where corruption was endemic, and if indeed we were a country where there was zero tolerance for corruption. We are not! Adequate independence must be adequate to the realities of the day, and today we are not! If we were, adequate independence might be set at a relatively lower standard than that which is required to arm the state sufficiently to see off any major challenges posed by corruption. It is a relative concept and the judgment states:
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.
The SAPS itself was labelled as a dysfunctional part of our dysfunctional criminal justice administration by the hon Adv 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 languishing in prison - of course, not in a cell - serving 15 years for corruption? His successor was suspended pending the findings of a board of inquiry, and his acting substitute is under investigation by the Public Protector. A Crime Intelligence boss, Richard Mdluli, has the 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.
That weak, weak decision to shift Mdluli rather than suspend him may well speak to the fact that the Minister of Police himself is apparently under investigation for alleged misappropriation of secret slush funds for the purpose of building a wall around his holiday home, irregular use of a motor vehicle belonging to the state, and nepotism. 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 DA.
All of this speaks to the fact that an effective anticorruption unit ought to be located as far away from the SAPS and the executive as possible. Anticorruption units elsewhere report to Parliament, and not to the executive.
What is before us here today is a Bill that establishes an entity within the SAPS that flouts SAPS regulations, and 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 also actually a convoluted constitutional conundrum. Nowhere is there a clause in the Constitution which reads that the national commissioner controls all of the SAPS except for the doings of the Hawks.
The Hawks are not a specialised anticorruption unit; the unit also deals with the prevention, investigation and combating of national priority offences, in particular serious organised and transnational crime, and serious commercial crime. The efforts to make it seem independent of political interference have been legion, but one of the most important calls of the judgment was simply pushed aside. From paragraph 207 of the judgment regarding public perception:
... the appearance or perception of independence plays an important role in evaluating whether independence in fact exists.
Will the public have confidence in a unit where the head is merely appointed by the Minister, with no involvement of Parliament, and where his or her rank is subordinate to that of the national commissioner?
As the ruling says, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. It is hard to imagine that the Bill before us today for its Second Reading convincingly allays public fears and concerns of political interference in the work of the Hawks, especially given the fact that the public submissions were simply bulldozed through and largely ignored.
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. Are we once again going to be told that we are offending the constitutional obligation on Parliament to create an independent anticorruption entity, which is intrinsic to the Constitution itself and which Parliament assumed when it approved the relevant international instruments, including the United Nations convention? The judgment stated that 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 DA.
Financial independence is a prerequisite for independent anticorruption efforts. The national 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, should have a separate Budget Vote and they 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 their 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 on 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 unfortunate that Parliament was not given adequate time to consider a menu of options in order to create a truly confidence-inspiring corruption buster for our country. Speaker, 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 anticorruption 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, are very unlikely to be that independent, effective and highly specialised anticorruption unit which will courageously combat the scourge of corruption. The police who fall under that umbrella body will try, but at this stage, with the Bill in its current form, I doubt very much that the judges of the Constitutional Court will even allow them to. [Applause.]