8 December 2020
The Constitutional Court recognised the importance of the independence of the Hawks in Glenister and Helen Suzman Foundation. The Hawks play a critical role in the fight against corruption and organised crime and must be able to deal effectively with these scourges without undue political interference.
In terms of section 17L of the South African Police Service (SAPS) Act, members of the Hawks who are concerned about political or other interference in investigations can complain to a retired judge, currently Judge Frans Kgomo, who is empowered to investigate these complaints.
The complaints mechanism, as an oversight body tasked with investigating complaints of political interference, must itself have and be perceived to have adequate independence. This is because members of the Hawks may be hesitant to make complaints if they do not perceive the complaints mechanism as having adequate independence.
The South African Police Service Amendment Bill, which is a comprehensive overhaul of the legislation governing policing in South Africa, includes amendments intended to shore up the independence of the complaints mechanism. But the amendments do not go far enough.
The Bill provides for the appointment of an office manager in the office of the retired judge. The office manager is to be “responsible for all administrative, financial and clerical functions of the office of the retired judge”. This will enable the retired judge to perform his or her functions more effectively.
Also, the appointment of an office manager will bolster the independence of the complaints mechanism. The SAPS Act, as currently formulated, provides that the Minister for Safety and Security shall ensure that the retired judge has sufficient personnel to perform his or her functions. This gives the Minister far too much control over staffing and, effectively, puts the Minister in a position to impede the functioning of the complaints mechanism.
The Bill proposes that the office manager be responsible for appointing staff and persons with specialised expertise to assist the retired judge with the performance of his or her functions. Placing staffing under the control of an office manager, who is identified for appointment by and under the control and authority of the retired judge, provides the complaints mechanism with the necessary operational independence to perform its functions effectively.
But there is still cause for concern regarding the perceived independence of the complaints mechanism.
The retired judge is only obliged to report the outcomes of investigations to the Minister for Safety and Security, and to make an annual report to Parliament. By contrast, the inspecting judge for the Judicial Inspectorate for Correctional Services is obliged to submit a report on each inspection to the relevant Parliamentary Committees on Correctional Services. This makes parliamentary oversight much stronger.
The SAPS Act should be amended to require the retired judge to report the outcomes of all investigations to the relevant Parliamentary Committees on Police.
Also, at present there is no requirement in the SAPS Act that the outcomes of investigations be open to the public (unless required to be confidential). It is not even required that the outcome be communicated to the complainant. The SAPS Act should be amended to require greater openness and transparency.
The complaints mechanism will hardly be perceived as independent if the outcomes of its investigations into political interference are only reported to the Minister – a political actor – and if its activities are shrouded in secrecy. Increased openness and transparency are essential to bolster public trust in the complaints mechanism.
Views expressed are not necessarily those of GroundUp.