Thursday, May 03, 2012

South Africa: Why a South African Anti-Corruption Agency Must be Independent of the Police

Police corruption in South Africa
Source: ISS

Why a South African Anti-Corruption Agency Must be Independent of the Police to be Effective

Gareth Newham, Head of the Crime and Justice Programme, ISS Pretoria

If it was not already clear why a dedicated anti-corruption agency capable of tackling powerfully connected people had to be independent of the South African Police Service (SAPS), the recent, and indeed ongoing failures of police leadership over the past few years should put this into perspective.

In 2010, ex-SAPS National Commissioner Jackie Selebi was convicted on corruption charges and sentenced to 15 years in prison. In 2011, the SAPS National Commissioner, Bheki Cele, was suspended pending the outcome of an inquiry into his fitness for office. This followed a finding by the Public Protector that his actions in relation to a R1.67 billion police lease deal were ‘improper, unlawful and amounted to maladministration.’

In addition, one of the most powerful SAPS Divisional Commissioners, head of Crime Intelligence Lieutenant-General Richard Mdluli, is facing an astonishing array of allegations implicating him and his close colleagues in murder, rape and wide-scale corruption. The National Minister of Police, Nathi Mthethwa has been accused of halting the Hawks’ investigation into Mdluli so as to protect him from further criminal charges, given Mdluli’s willingness to use his position to support Jacob Zuma’s intention to run for a second term as ANC president. Moreover, there are allegations emerging from investigations by the Hawks that Mthethwa illegally benefitted from the SAPS Secret Service Account to the tune of R195 581 for renovations to his personal residence, which was authorised by Mdluli.

Whether or not these allegations are ultimately proven, they have certainly severely undermined the public image of the police and further demoralised many of the honest hard working police officials expected to place themselves at risk in fighting crime. Moreover, such allegations point to reasons why the political elite might choose not to strengthen the independence and ability of the Directorate of Priority Crimes Investigations (DPCI), commonly known as the Hawks, to investigate corruption committed by those at the highest levels of government.

In March 2011, the Constitutional Court, in the matter of ‘Hugh Glenister vs the President of the Republic of South Africa & others’, ruled that the legislation establishing the DPCI was unconstitutional and invalid. This was because the legislation failed to secure an adequate degree of independence for the DPCI, which was charged with investigating corruption amongst other serious priority crimes. The Court gave the government and parliament 18 months to rectify this shortcoming so as to ensure that South Africa would meet both its constitutional and international obligations with regards to establishing an independent agency that can effectively tackle corruption at all levels of society.

Not only do South Africa’s obligations require that we have an anti-corruption agency that is structurally and operationally independent, the Court ruled that it must also be seen to be independent by the public. It is therefore disappointing that the government appears to have ignored this opportunity provided by the Constitutional Court to establish a truly independent and effective anti-corruption unit.

The 18 months provided by the Constitutional Court was not used to widely consult and develop consensus about the best way to establish an independent and effective anti-corruption agency. Rather, six months before the deadline, the Minister of Police tabled the SAPS Amendment Bill before parliament that provided a minimalistic response to the Court’s findings.

The biggest shortcoming of the Bill is that the Hawks remain a directorate within the SAPS. Instead of establishing a truly independent anti-corruption agency, the Bill tries to provide a level of protection and additional authority to the head of the Hawks, by inter alia:

· allowing the Minister to appoint and dismiss the head of the Hawks so that they don’t have to report directly to the SAPS National Commissioner,

· allowing the head of the Hawks to decide on who may be seconded to assist the directorate from outside of the SAPS and,

· in the case of a dispute about which cases to investigate, having the authority to overrule the National Commissioner

Such provisions however, do not address the various ways in which the Hawks may continue to be subject to political interference and manipulation. The Constitutional Court found that the SAPS National Commissioner was inadequately independent because the Minister of Police could too easily appoint and remove the incumbent. In theory, and in practice, the SAPS National Commissioner is therefore a political appointee and, as has been recently alleged, subject to political manipulation. However, the draft legislation currently before parliament continues to allow the SAPS National Commissioner to determine the budget of the Hawks after consultation with its head, and to report on the budget before parliament. It does not take much effort to imagine that a Commissioner of Police under investigation by the Hawks might use his or her position to undermine the investigation, or to manipulate the head of the unit.

The Bill also gives the Minister of Police the authority to both appoint and initiate proceedings to dismiss the head of the Hawks, who may be suspended without salary before a disciplinary inquiry has been started.

Finally, the Bill maintains the head of the Hawks as a SAPS Deputy National Commissioner, who according to protocol will be expected to salute the SAPS National Commissioner. Hawk members will remain part of the SAPS in every way and will be subject to all its rules, regulations, resources and the dynamics of its organisational culture. How such a directorate will be seen to be truly independent by the general public is difficult to fathom.

These are but a few of the many reasons why, for an anti-corruption agency to be truly effective and independent, it will have to be a separate organisation from the SAPS. Of the 21 submissions made before the Parliamentary Portfolio Committee on Police, 20 argued that the Bill fell short of what was required to effectively investigate corruption committed by South Africa’s political elite. We can only hope that the committee hears the concerns of civil society and frees the Hawks to hunt corruption wherever it may occur.