The constitution and the fight against corruption
Glenister v President of the Republic of South Africa (2011)
Was the disbandment of the Scorpions, a special unit set up to tackle crime and corruption, and its replacement with the Hawks, constitutional?
Background
Over the first decades of South Africa’s constitutional democracy, corruption has had a profound impact on the government’s ability to deliver on the promises enshrined in the Constitution, especially on socio-economic rights such as housing, education, and health.
In 1999, the government established the Directorate of Special Operations (DSO), popularly known as the Scorpions, to tackle organised crime, corruption, and complex commercial cases. These challenges were regarded as beyond the capabilities of a police service already stretched thin. The Scorpions operated under the National Prosecuting Authority (NPA) rather than the police.
However, soon after the establishment of this unit, there was a fear amongst politicians that the Scorpions was being politically manipulated. In 2007, the African National Congress (ANC) resolved to disband the Scorpions and incorporate its work into the South African Police Service (SAPS), saying that there was a constitutional imperative for a ‘Single Police Service’. Many others argued that the Scorpions was an effective crime fighting unit precisely because of its independence from the SAPS.
A year later, Parliament passed legislation that created the Directorate for Priority Crime Investigation (DPCI), known as the Hawks. Hugh Glenister, a businessman and lobbyist, challenged the legislation creating the Hawks on a number of constitutional grounds.
His argument rested on several grounds including the absence of a rational basis for the enactment of the laws that disbanded
the Scorpions and established the Hawks.
Path to the Constitutional Court
The High Court dismissed all the grounds of attack based on constitutional obligations. It held that only the Constitutional Court may decide whether Parliament or the President has failed to fulfil a constitutional obligation. It also held that the establishment of the Hawks within the framework of the SAPS is manifestly designed to enhance the capacity of the SAPS, and the means by which this purpose is sought to be achieved “appear to be rational.”
It accordingly concluded that the decision to disband the Scorpions and establish the Hawks “is rational and can certainly not be described as arbitrary.” The High Court held that only the Constitutional Court has the jurisdiction to decide whether Parliament has failed to facilitate public involvement in its legislative process.
Some of the Arguments
Hugh Glenister
Glenister argued that the Hawks lacked independence and was susceptible to government interference, and that there was no rational basis for the enactment of the legislation. He alleged that the Hawks failed to comply with various constitutional obligations relating to accountability such as upholding international obligations; facilitation of public involvement; protecting values enshrined in the Bill of Rights; and allowing the NPA to properly exercise its functions.
He also argued that the government failed to comply with various constitutional obligations relating to accountability; cultivating the principles of good human resource management practices and good labour relations; upholding international obligations; facilitation of public involvement; protecting values enshrined in the Bill of Rights; and allowing the NPA to properly exercise its functions.
The Helen Suzman Foundation, the amicus curiae (friend of the court) in the matter, argued that the replacement of the Scorpions by the Hawks violated international treaties that South Africa has ratified, which required state parties to establish an independent anti-corruption unit to fight the scourge of corruption.
President of the Republic of South Africa
The government argued that the Constitution, while giving rise to a positive obligation on the state to fight corruption and organised crime, does not specifically impose an obligation on the state to establish an independent corruption-fighting unit. It further held that, insofar as such a constitutional obligation is found, the structural and operational autonomy of the Hawks is secured through institutional and legal mechanisms that are adequately designed to prevent undue interference and safeguard the independence of the Hawks.
What did the Constitutional Court decide?
The Court stated that corruption undermines the rights in the Bill of Rights and imperils our democracy, and found that the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime. The judgment concluded that an anti-corruption unit that is not adequately independent is not a reasonable constitutional measure.
The Court also found that the Hawks did not meet the constitutional requirements of adequate independence because it was insufficiently insulated from political influence in its structure and functioning.
The Court declared that the legislative provisions establishing the Hawks were unconstitutional, and suspended the order to allow Parliament the opportunity to remedy the defect in the legislation.
“When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
– Justice Dikgang Moseneke and Justice Edwin Cameron, from the Glenister judgment, 17 March 2011
When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.
Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron
from the Glenister judgment, 17 March 2011
Impact and Significance
Despite the Court’s decision, Parliament did not adequately remedy the legislation that established the Hawks in line with the Court’s decision.
On 27 November 2014, the Constitutional Court, in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others, for the second time declared invalid several sections of the SAPS Act in an attempt to secure the independence of the Hawks and to insulate it from political pressure.
Following this second judgment, Constitutional law expert Pierre de Vos wrote that the Constitutional Court judgment delivered a potentially devastating blow to politicians and other powerful individuals in the business world who may have thought that they would be protected from being investigated by the Hawks for alleged involvement in corruption.
Unfortunately, as de Vos pointed out, legal intervention is but a start in ensuring the independence and effectiveness of the Hawks.
