Strengthening Legislation for a South African Anti-Corruption Agency
Dr. Chandre Gould & Gareth Newham, Senior researcher and programme head, Crime and Justice Programme, ISS Pretoria
South Africa is one step closer to having an independent agency that should be able to investigate and act against high-level corruption. On 17 May the parliamentary Portfolio Committee on Police, chaired by Ms Sindiswa Chikunga, approved a new version of the Bill that is a significant improvement on the earlier one. The latest version reflects many of the concerns and proposals made by civil society organisations during the public hearing process.
The South African Police Service (SAPS) Amendment Bill emerged as the result of the Constitutional Court judgement on 17 March 2011, which found that the Directorate of Priority Crime Investigation (DPCI, also known as the Hawks) was not adequately independent as required by the Constitution and South Africa’s international legal obligations. This was because there were a number of ways in which political interference could impact on the work of the DPCI.
Civil society organisations that made submissions to parliament in April this year, including the Institute for Security Studies (ISS), were almost unanimous in calling for the new legislation to re-locate the DPCI outside of the SAPS. This, they argued, would be the best way for the unit to be truly independent, innovative and, importantly, to secure public confidence.
However, the new version of the Bill does not go this far and therefore the Hawks will remain a directorate of the SAPS. Nevertheless, revisions to the Bill have strengthened the DPCI and should reduce its vulnerability to political interference. These measures include:
- A requirement for the Minister of Police to consider both the integrity and conscientiousness of the person to be appointed as head of the DPCI
- Giving the head of the DPCI the authority to overrule the National Commissioner of Police in decisions regarding which crimes will be investigated by the unit
- Allowing the head of the DPCI to determine the organisation’s budget, which will be ‘ring-fenced’ for use only by the DPCI, and requiring the head to report directly to parliament on the expenditure of the Directorate
- Giving the head of the DPCI the final authority in the recruitment and dismissal of all DPCI staff
- Making it a criminal offence, punishable by up to two years in prison, to attempt to hinder, obstruct or interfere with the work of the DPCI. This is an important protection in the light of recent allegations that the Minister of Police interfered with a DPCI investigation into controversial SAPS Crime Intelligence Head, Richard Mdluli
The Bill also addresses concerns raised about the potential for ministerial influence over the work of the unit. While the controversial Ministerial Committee that previously had an ‘oversight’ role remains in existence, the Bill has stripped it of all powers to interfere and allocated it the task of only coordinating the activities of the DPCI and other government departments. This committee, made up of the ministers of Police, Finance, Home Affairs, State Security and Justice, also has to report to parliament about its activities.
The Bill has also gone some way towards improving the complaints mechanism that can be used to address complaints made either by or against members of the DPCI. The retired judge appointed to respond to complaints will have a budget to facilitate his/her work and interference with his/her work will also be a criminal offence.
The Bill, however, still has a few significant weaknesses, which will need to be addressed before it can be said to be adequately independent. Importantly, it continues to give the Minister of Police too much discretion as to the appointment of the DPCI head.
