Johannesburg - Joburg businessman Hugh Glenister is going back to the Constitutional Court to have new legislation governing the elite police investigators, the Hawks, set aside as unconstitutional.
This comes just days after the SA Police Service Amendment Bill, dubbed the Hawks Bill, was signed into law by President Jacob Zuma, and gazetted by last week’s deadline set by the Constitutional Court.
That court in March last year ruled the legislation establishing the Hawks did not fully isolate it from political influences, and gave the government 18 months until September 18 this year to remedy this situation.
Glenister’s advocate, Paul Hoffman, who also heads the Institute for Accountability in SA, said the Hawks law failed to meet constitutional muster on the basics: it contravenes the constitution’s section 207(2) which puts the national police commissioner in charge of the police.
Instead, the police Amendment Act gives powers to the head of the Hawks to determine its own investigations, and its decisions “prevail” over the national police chief.
In addition, the law keeps the Hawks within the police, thus making it accountable to the police minister.
And it is the minister who appoints the head of the Hawks for a term of seven years, while the minister may also decide to keep a head of the Hawks for two years past the mandatory 60-year retirement age.
During public hearings at Parliament earlier this year, Glenister – and others – raised concerns that, by keeping the Hawks within the police, it would not be fully immune from political influence.
Constitutional and legal experts have criticised it for taking a minimalist approach to bringing the law up to constitutional standards.
However, MPs were told by Civilian Secretariat for Police head Jenny Irish-Qhobosheane that the Hawks’ independence was assured as it would be a separate directorate, not just a division, of the police, with the Hawks head, not the national police commissioner, responsible for investigations.
The amendment law was drafted by the civilian secretariat, the police and the Justice Department, while the State Security director-general and the Public Service and Administration department were consulted.
After the National Council of Provinces (NCOP) passed the legislation in September, Glenister said he was “disappointed” the Hawks remained part of the police, and added that he had written to the president, requesting him to check the legislation’s constitutionality before signing it into law.
“This result shows that the government is not willing to enter into dialogue over this issue… It is very disheartening to see politically inspired decisions being made instead of the right ones,” Glenister said.
“It will be impossible for the Hawks to fulfil their mandate to combat corruption as long as they remain answerable to an organisation that in itself is so riddled with it.”
The Joburg businessman has been embroiled in litigation since 2008, when he unsuccessfully challenged the disbanding of the Scorpions. However, Glenister successfully challenged the law governing the Scorpion’s replacement, the Hawks, last year.
Following the March 2012 Constitutional Court ruling, it took a year before Parliament received the amendment legislation, which was processed through both Houses of Parliament earlier this year.