1. 1 ANALYSIS OF THE SAPS AMENDMENT BILL [B7-2012] (HAWKS BILL) AND SUMMARY OF WRITTEN SUBMISSIONS Nicolette van Zyl-Gous

2. 2 Introduction The disbanding of the Directorate for Specialised Operations (DSO), commonly known as the Scorpions, in early 2009 was met with a great deal of controversy. The Scorpions was publically regarded as an elite law enforcement unit mandated to combat corruption in South Africa. However, the effective functioning of the Scorpions was called into questioned and thus a decision was reached to create a new anti-corruption unit through the South African Amendment Act, 57 of 2008. The amendments were included in Chapter Six of the South African Police Services Act, No. 68 of 1995 and effectively established the Directorate for Priority Crime Investigation (DPCI), commonly known as the Hawks. Subsequently, Mr. Hugh Glenister, challenged the Act on constitutional grounds through a Constitutional Court case (Glenister v the President of the RSA and Others) and on 17 March 2011 judgement was passed in that Chapter Six of the SAPS Act as amended by the SAPS Amendment Act, 57 of 2008, is inconsistent with the Constitution of South Africa.

3. 3 Introduction The judgement found the legislation to be invalid in that it failed to secure an adequate degree of independence to the Directorate for Priority Crime Investigation (DPCI). The Constitutional Court suspended the declaration of invalidity for a period of 18 months to afford Parliament an opportunity to amend the legislation and bring it in-line with the judgement. On these grounds, the South African Police Service Amendment Bill [B7- 2012] was drafted to give effect to the recommendations made by the Constitutional Court as mentioned above. The Amendment Bill was tabled in Parliament on 02 March 2012 and the Civilian Secretariat of Police (who was in charge of redrafting the bill) made a presentation to the Portfolio Committee on Police on 7 March 2012. This was the first opportunity for the Committee to ask clarity seeking questions from the Secretariat. The public was subsequently invited to make written submissions to the Portfolio Committee on the bill before 27 March 2012 and public hearings, including oral submissions, on the amendment bill was provisionally scheduled for 23-26 April 2012.

4. 4 Glenister Judgement The Constitutional Court posed two main questions to be determined regarding the constitutional integrity of the 2008 SAPS Amendment Act: Firstly, whether the Constitution requires the State to establish and maintain an independent institution/unit to combat corruption and organised crime on which the court found that the Constitution does impose an obligation on the state to establish and maintain an independent body to combat corruption and organised crime, and Secondly, whether the Directorate for Priority Crime Investigation meet the requirement of independence on which the Court found that the Directorate did not display adequate safeguards to ensure independence.

5. 5 Glenister Judgement cont. The Constitutional Court further focused on three main aspects or the unlawful legislation namely: 1) The operational and structural independence of the DPCI and whether this conforms to the requirements set for an anti-corruption agency; 2) Security of tenure and remuneration; and 3) The accountability and oversight by the Ministerial Committee, which was found to undermine the independence of the DPCI.

6. 6 Major Amendments The following are some of the major areas amended in the new Bill to ensure that the three aspects identified by the Constitutional Court are addressed: (1) The Amendment Bill attempts to address the requirements of operational and structural independence by giving Parliament a seemingly greater amount of oversight over the Directorate’s activities and performance through a variety of measures. This was met with a varying degree of success. The most apparent measures of oversight afforded to Parliament are: Scrutiny over Annual Reports, Budget Allocations, Annual Performance Plans and Strategic Plans of the Department of Police; The fact that the Minister must report to Parliament on the appointment of the Head of the DPCI within 14 days of such appointment; The allowance made for the Minister of Police to submit the remuneration scale payable to the Head, Deputy Head and the Provincial Heads to Parliament for approval and further that such remuneration scale may not be reduced except with the concurrence of Parliament; Provision is made that the policy guidelines for the DPCI, as drafted by the Minister of Police, must be approved by Parliament; and Provision is made for Parliament to concur with the policy guidelines for the selection of national priority offences as drafted by the Minister of Police.

7. 7 Major Amendments cont. (2) The Amendment Bill attempts to address security of tenure and remuneration through the insertion of Section 17CA in the Act 68 of 1995 as provided for in clause 6 of the bill in that it provides for a non-renewable fixed term appointment not exceeding seven years for the Head, Deputy Head and Provincial Heads of the Directorate. It also makes provision for the remuneration, allowances and other conditions of service for the Head, Deputy Head and Provincial Heads of the Directorate. (3) The Amendment Bill attempts to address concerns raised regarding the possible political interference in the Directorate through the Ministerial Committee in several ways. Through clause 12 of the bill, it is provided that the Ministerial Committee is no longer mandated to determine the (1) policy guidelines, (2) policy guidelines for the selection of national priority offences, and (3) policy guidelines for the referral to of cases by the National Commissioner. And also, that the Ministerial Committee may no longer oversee the functioning of the Directorate. Accordingly, almost all the functions and power of the Ministerial Committee is removed through the bill.

8. 8 Clause 1 & 2 The two clauses of the Bill seeks to amend section 6 of the SAPS Act by aligning the provisions in the Act (which provide for the appointment of the National Commissioner and the Provincial Commissioner) to sections 207(1) and 207(3) of the Constitution of the Republic of South Africa (1996) as opposed to the Interim Constitution as the Act currently stands. The White paper on Police scheduled for adoption in the next year will align the SAPS Act in its entirety to the Constitution.

9. 9 Clause 3: Section 16 – Authority of the Head Head of Directorate more responsibility –Secondment of personnel –Resources Authority of the National Commissioner of Police –Section 207 of the Constitution Dispute resolution –What process will be followed

10. 10 Clause 4: Section 17B – Location “...a directorate in the Service...” Not uncommon to have anti-corruption agencies established as units as part of law enforcement agencies. Directorate will form a separate program: Programme 6.

11. 11 Clause 5: Section 17C – Establishment and Composition Head appointed as Deputy National Commissioner Minister to appoint the Head of the Directorate with concurrence of Cabinet –Lack of criteria for appointment –Shared success of the unit and political elite –Minister must report to Parliament on the appointment –Recourse if members of Parliament are not satisfied? Head to appoint Deputy National Head and Provincial Head (no longer appointed by the National Commissioner) Specialised training

12. 12 Clause 6: Insertion of Section 17CA – Appointment, remuneration and condition of Service Provision made for the Head, Deputy Head and Provincial Heads –No provision made for rest of the ordinary members Term of contract –Does not provide for a minimum period of appointment Minister must report to Parliament on the appointment of the Head –Recourse if Parliament feels unfit person appointed –Appointment of executives of Chapter 9 institutions (President) Remuneration scale stipulated and can only be amended through the approval of Parliament.

13. 13 Clause 7: S ection 17D – Identification of priority crimes, mandate and policy guidelines Provision made for the Head to identify national priority offences. Policy guidelines to be drawn up by Minister and no longer Ministerial Committee –Parliamentary procedures –Policy guidelines to be approved by Parliament Reference made to Chapter 2 and 34 of the Prevention and Combating of Corrupt Activities Act, 2004 -To avoid unnecessary cross referencing between the Acts these offences should be clearly stipulated in the Bill

14. 14 Clause 8: Insertion of Section 17DA and 17DB – Loss of confidence in the Head of Directorate Removal from office −Pending an enquiry −No salary The wording “loss of confidence” could be subjective Parliament notified in writing regarding the removal Section17DA(3) −Incorrect use of terminology −Supersedes the provision made for an enquiry into the fitness of the Head to hold office.

15. 15 Clause 9: Section 17E – Security Clearance Internationally agreed appropriate for personnel to be subjected to security clearance investigations No recourse available if security agency denies or degrades clearance Oath or Affirmation −Not sufficient to legally bind members of the Directorate

16. 16 Clause 10: Section 17F – Secondment of Personnel Section 17F affords the Head of the Directorate substantially more influence in appointing his or her team in terms of the secondment of personnel to the Directorate. This is also in-line with international requirements to attract and appoint a wide pool of expertise and insider knowledge into a variety of government departments.

17. 17 Clause 11: Section 17H – Finances and financial accountability National Commissioner remains the accounting officer in terms of the PFMA −Control over finances −Earmarked funds −Consultation

18. 18 Clause 12: Section 17I – Ministerial Committee Removes virtually all powers previously given to the Ministerial Committee −No longer determines policy guidelines −No longer determines priority offences −No longer determines guidelines for referral of priority crimes Minister takes final responsibility for the Hawks Committee should be removed in its entirety −Minister could take responsibility for intersectoral collaboration during usual cabinet meetings. “Performance and implementation reports” should be defined

19. 19 Clause 13: Section 17J – Operational Committee It is unclear what the function of the Operational Committee is exactly. It states that the “Operational Committee shall review, monitor and facilitate the support and assistance of the respective Government departments or institutions to the Directorate and address problems, which arise regarding such support and assistance”. Thus its sole role is to ensure intersectoral operational coordination and cooperation. Additional motivation for the need for a structure of this nature should be provided.

20. 20 Clause 14: Section 17K – Policy Guidelines Separate programme in the SA Police Service −Same standard of oversight currently endowed to the Service through scrutiny of budget, strategic plan, annual performance plan and annual reports Deletion of 17K(3) which provides for the Directorate to report to Parliament Policy guidelines drafted in concurrence of Parliament instead of ‘approval’

21. 21 Clause 15: Section 17L – Retired Judge The proposed amendments to Section 17L of the Act seeks to provide the Directorate with a safeguard against undue political interference and allows the retired judge the conduct an investigation on alleged interference and further allows the judge to request and obtain information from the Director of Public Prosecutions in the event of such investigation. However, it is arguable that this safeguard does not prevent interference, but merely deals with such possible interferences after the occurrence of the incident.

22. 22 Clause 16: Insertion of Section 17M – Command and Control Members of the Directorate will remain members of SAPS “with all the same powers, duties and functions of other members of the South African Police Service” −They are still governed by the SAPS Act (no.68 of 1995), unless stipulated differently in the amendment act. −One might argue that this opens members to the same hierarchical structure of the Service, which might be deemed as a constriction to the structural independence of the Directorate and susceptible to undue interference and pressure from the top. The SA Police Service Act makes provision in Section 47(1) that a “member shall not obey a patently unlawful order or instruction” and may request that such order be given to the member in writing. Thus, if a member of the Directorate feels that he or she is intimidated, provision is made through the retired judge and when such member feels that they are given an illegal instruction, he or she may refuse to execute such order.

23. 23 Clause 17: Transitional Arrangements Provision for all investigations or prosecutions currently conducted or pending will not be affected by the amendment made to the Act and that it in no way affect the validity of said investigations. The currently serving Head, Deputy Head and Provincial Heads of the Directorate will serve in their current position until the proposed amendments to the Act commences and will be appointments will be made in terms of Section 17CA of the amendment act. Further clarity should be sought on how the stability of the unit, in terms of human resources, will be ensured once the bill is enacted. Although clause 17 makes provision for Transitional Arrangements, current serving members of the DPCI will experience a large degree of uncertainty regarding their futures.

24. 24 SUMMARY OF WRITTEN SUBMISSIONS

25. 25 Written Submissions A total of twenty-one (21) written submissions were received, of which ten (10) were substantial for oral presentations. All of the submissions, save one, indicated that the bill is inconsistent with the Glenister Judgement. Received a late submission from the Centre for Constitutional Rights, which will be considered for oral presentation. Oral Submissions: Prof. P de Vos Unisa College of Law Institute for Security Studies (ISS) IFAISA African Policing Civilian Oversight Forum (APCOF) Helen Suzman Foundation Prof. Mhango Collaboration between the Open Society Foundation, Legal Resources Centre and Corruption Watch Council for Advancement of the South African Constitution (CASAC) Association of Certified Fraud Examiners

26. 26 Prof. Pierre de Vos (DPCI/05) Bill inconsistent with Glenister Judgement: Duty of the State to set up a concrete and effective mechanism to fight corruption; Operational independence of the DPCI in that it should be free of undue political interference relating to the appointment of members, security of tenure and remuneration not attained; and Structural independence of the DPCI, which relates to the healthy relationship between the Directorate and the legislature and executive, oversight over the body and accountability to the two political branches of government not attained.

27. 27 Unisa College of Law (DPCI18) Bill does not address the notion of an independent, anti-corruption institution. 7- year non-renewable term is problematic. Head is a Deputy National Commissioner (DNC) yet other DNCs will have different terms and conditions of work. Different procedures for suspension and removal of the Head to other DNCs. Inappropriate to establish an institution within another institution. Unclear area of focus (too broad) i.e. serious organised crime, serious commercial crime and serious corruption. Unit should report directly to Parliament (and not to the Minister). Submission provides details of international anti-corruption agencies including: Hong Kong and Botswana (Universal model with investigative, preventative and communicative functions), Singapore (Investigative model), New South Wales (Parliamentary model), United States (Multi- agency model)

28. 28 Institute for Security Studies (ISS) (DPCI/17) Bill inconsistent with Glenister Judgement: Location of the DPCI within SAPS is a concern towards adequate independence; The Memorandum accompanying the bill argues that ‘the Constitution requires the creation of an adequately independent anti-corruption unit. It also requires that a member of Cabinet must be responsible for policing.” This statement conflates policing with the activities of an anti-corruption agency. It is argued that there exists no requirement why the Directorate must fall under the responsibility of the Minister of Police. The subordination of the Head as Deputy National Commissioner under the National Commissioner remains a concern. In addition, the fact that the National Commissioner remains the accounting officer of the directorate is raised as a major concern. Appointment and dismissal of the head and other staff of the directorate does not provide structural and operational independence is required by the Constitutional Court; Oversight and accountability of the directorate is undermined; and The mandate of the Directorate is not clearly defined.

29. 29 Institute for Accountability in Southern Africa (IFAISA) (DPCI/04) Bill inconsistent with Glenister Judgement: Independence not attained; Specialisation in corruption fighting not included; Proper resourcing of the specialist body created by way of a guaranteed budget not provided for; Appropriate training of personnel lacking; and Security of tenure to insulate against political interference not attained. The organisation states that the existence of an independent NPA in Chapter 8 of the Constitution will be complemented by an Anti-Corruption Commission (ACC) to be established under Chapter 9. The ACC not needed to be given prosecutorial powers, but a mechanism needs to be devised to resolve any possible disagreement between the NPA and the ACC on the fate of a corruption docket presented by the latter to the former.

30. 30 Institute for Accountability in Southern Africa (IFAISA) Continue...(DPCI/04) The submission makes mention of several international conventions ratified against corruption. It illustrates the link between corruption/organised crime and human rights violations. It further make mention to the impact of corruption and organised crime on human rights. It argues that the combating of corruption requires an independent body and lists the six international conventions signed and ratified by South Africa with an explanatory section of each. The organisation submitted a proposed Constitutional Amendment to establish an Anti-Corruption Commission, which prepares for the Constitutional amendment for this commission under Chapter 9 of the Constitution. The organisation furthermore submitted a replacement Anti-Corruption Bill as opposed to the current bill under scrutiny, for consideration. The replacement bill proposes the establishment of an anti-corruption agency as a Chapter 9 Institution.

31. 31 African Policing Civilian Oversight Forum (APCOF) (DPCI/16) Bill inconsistent with Glenister Judgement: The Head of the DPCI as Deputy National Commissioner remains subordinate to the National Commissioner of Police; Lack of financial independence as the National Commissioner drafts the budget ‘after consultation’ with the Head instead of ‘in consultation’; DPCI mandate too loosely defined; Veto right held by the Minister on the appointment of the Deputy Head of the DPCI; Removal of the Head through an ‘enquiry’ is too loosely defined; Possibility that the National Commissioner may transfer any individual or if such a person cannot be redeployed elsewhere and even may discharge such a person if his or her clearance is degraded, withdrawn or refused on “reasonable grounds” is a concern; Unclear whether all personnel of the DPCI must have security clearance and the reason for clearance not clear and note that nothing inherently related to national security in the investigation of corruption and the over-generalization of clearance requirement is unnecessary and may open system for abuse; and Removal of power from the Ministerial Committee to the Minister of Police does not address the threat of political interference.

32. 32 Helen Suzman Foundation (DPCI/11) Bill inconsistent with Glenister Judgement: To comply with the Constitutional Judgement and achieve adequate independence, the DPCI and its Head cannot fall under the control of the National Commissioner (SAPS); Legislation that brings into being a body within the SAPS that does not fall under the control of the National Commissioner is unconstitutional in terms of section 207 of the Constitution; The process of interviewing and recommendation for the position of the Head of the DPCI should be done by an independent body and referred to the relevant Minister for final decision, or the Head should be appointed by Parliament as with Chapter 9 Institutions; Security of tenure to protect the job security of the Directorate’s members’ can relatively easily provided by a fixed non-renewable term of employment, or an indefinite contract of employment; The Directorate should be solely responsible for determining which offences and cases should be investigated. And it is proposed that the Head should draft guidelines in this regard and Parliament should consider and approve them; The criteria for appointment of the Head of the Directorate should be vigorous and substantive; Financial management must be in the hands of the Head, not the National Commissioner; and The issue of security clearance is problematic and needs to be clarified and not subjected to the arbitrary exercise of power.

33. 33 Prof. Mhango (DPCI/14) Bill consistent with the Glenister Judgement: The location of the Directorate is irrelevant as long as it remains independent; Security of tenure addressed: The ‘renewable term’ in the Act is replaced by a ‘non-renewable term’; Statutory salaries for the Head and Deputy Heads of the DPCI included as required; Grounds for removal of the Head is redefined; and Oath of Office to be taken by members introduced which binds personnel to conduct their duties independently. Powers of Ministerial Committee reduced to prevent interference; and No need seen for the creation of a Chapter Nine Institution to fight corruption as the bill is sufficiently independent.

34. 34 Open Society Foundation, Legal Resources Centre and Corruption Watch (DPCI/12) Bill inconsistent with Glenister Judgement: Lack of security of tenure in terms of: Appointment and renewal of tenure Remuneration and conditions of service Discipline and removal Appointment and renewal of tenure Lack of accountability in terms of: The determination of police guidelines Reporting to Parliament Financial accountability Security clearance requirement

35. 35 Council for the Advancement of the South African Constitution (CASAC) (DPCI/15) Bill inconsistent with Glenister Judgement: Location of the unit within SAPS; Institutional protections of a general nature against political interference not sufficiently provided for; Mandate of the unit is not clearly defined; Criteria and procedure for the appointment of key and other staff is not provided for; Security of tenure not sufficiently provided for; Provisions and process of dismissal not sufficiently provided for; Lack of minimum secured remuneration levels; The role of the Ministerial Committee not clear; Sufficient accountability not secured; and Maintaining of budget and financial control in the authority of the National Commissioner inconsistent with adequate independence.

36. 36 Association of Certified Fraud Examiners (DPCI/19) Bill does not address the issues raised in the Glenister judgement: Insufficient independence (degree of management by political actors is a concern) Insufficient specialisation (not a dedicated anti-corruption entity) Insufficient security of tenure (in terms of appointment and discharge; secured remuneration levels, continued coordination by Ministerial Committee, potential low level of parliamentary oversight; complaints mechanism reactive rather than proactive). Recommends: Creation of a dedicated anti-corruption entity as a Chapter 9 institution A constitutional amendment to facilitate this.

37. 37 Thank you