Sunday, March 20, 2011

Scorpions disbanding unconstitutional

Scorpions disbanding unconstitutional

The Constitutional Court ruled on Thursday that sections of the Acts that disbanded the Scorpions and created the Hawks were inconsistent with the Constitution. It has given Parliament 18 months to rectify the legislation.

The ANC and its allies were cautious in their responses to the ruling but opposition parties expressed enthusiasm.

Deputy Chief Justice Dikgang Moseneke delivered the majority judgment, prepared with Justice Edwin Cameron, which ruled that "the Directorate for Priority Crime Investigation [the Hawks] is insufficiently insulated from political interference".

The judgment was a narrow majority one, supported by five of the court's nine judges.

Justices Johan Froneman, Bess Nkabinde and Thembile Skweyiya concurred with Moseneke and Cameron's judgment.

A minority judgment, prepared by Chief Justice Sandile Ngcobo, found that the Hawks' structural and operational autonomy was already secure.

Acting Justice Frederik Brand and Justices Mogoeng Mogoeng and Zakeria Yacoob concurred with him.

Moseneke said "it is the duty of the state to create a concrete, effective and independent mechanism with which to root out corruption", in line with the Bill of Rights and South Africa's international obligations.

His judgment does not disband the Hawks or reinstate the Scorpions, but it gives Parliament another opportunity to create a "constitutionally valid" independent crime and corruption-busting unit.

The Hawks is a unit in the South African Police Service that reports to the ministry of safety and security, and is therefore in effect directed by the executive.

The former Scorpions was a unit in the National Prosecuting Authority and so was nominally independent of the executive.

Hugh Glenister, a private citizen who brought the application before the Constitutional Court, said he was "elated -- ecstatic, in fact".

To date Glenister has spent R3.8-million in legal fees in opposing the Scorpions' disbandment. "In my view it’s money well spent," he said.

The Scorpions achieved a conviction rate of more than 90% and pursued high-profile cases, including the arms deal investigation that led to the conviction of Zuma’s former financial adviser, Durban businessman Schabir Schaik, on fraud and corruption charges.

The unit's "search and seizure" methods were bitterly opposed by sections of the alliance and it was formally disbanded in October 2008 after Parliament adopted the National Prosecuting Authority Amendment Act and the South African Police Service Amendment Act.

The Hawks, which has all but shut down the arms deal probe, said it welcomed the judgment and "will be taking the necessary steps under the guidance of Parliament to give effect to the judgment".

"Criminals should not be under the impression that the Constitutional Court judgment eliminates the work of the Hawks. The unit’s fight against corruption continues unhindered," said Hawks spokesperson McIntosh Polela.

The safety and security ministry said it would study the judgment in its entirety before commenting.

The justice department said it would do the same, but "steps will be taken to give effect to this judgment". Spokesperson Tlali Tlali said: "Parliament has been vindicated as the court did not find anything irrational in how it processed the legislation."

The ANC said it would consider how best to implement the judgment's findings, while alliance partner Cosatu called on Parliament and the government "to comply with the court’s instruction to remedy the legislation within the next 18 months".

The DA's shadow minister for police, Dianne Kohler Barnard, said the Scorpions should have been retained. Disbanding them "was designed to shut down investigations into ANC politicians and allow [them] to continue to dispense patronage, as well as engage in corruption", she said.

Cope spokesperson Philip Dexter said the judgment put an onus on the government to "do the right thing" and the closure of the Scorpions had left a void in corruption investigations.

He cited police National Commissioner Bheki Cele, who "is implicated in wrongdoing. How can the Hawks investigate their own commissioner?"

United Democratic Movement leader Bantu Holomisa said the onus was now on the "comrades to clean up their mess in the next 18 months ... We once warned the country that the Polokwane lynch mob that is currently running the country is taking us nowhere. They continue to loot the country right in front of the Hawks."

Mmanaledi Mataboge is a senior political reporter; Lionel Faull is a member of amaBhungane, the M&G Centre for Investigative Journalism.


Glenister ‘shell shocked’ by ruling
March 17 2011 at 09:39pm
By Jenni O'Grady



Hugh Glenister speaks to the media outside the Constitutional Court. Picture: Itumeleng English

Businessman Hugh Glenister was “shell shocked” by the Constitutional Court ruling that part of the legislation enabling the disbanding of the Scorpions and launch of the Hawks was constitutionally invalid.

“I am a little bit shell shocked. I was really not expecting this,” Glenister told Sapa.

The court ruled on Wednesday that the legislation was constitutionally invalid because it did not provide enough protection against political influence for the Hawks, a specialist investigative unit within the police.

It ordered that Chapter 6A of the South Africa Police Services Act 68 of 1995, as amended, be sent back to Parliament, with the order of constitutional invalidity suspended for 18 months, until it has been rectified.

Glenister took the case through the courts following a decision taken at the ANC's 2007 Polokwane conference that the Directorate of Special Operations, known as the Scorpions, be disbanded. The ANC had repeatedly accused the Scorpions of a political agenda as it tried to prosecute President Jacob Zuma for allegedly accepting a bribe facilitated by his former financial advisor Schabir Shaik and French arms company Thint.

After Shaik's conviction and sentence for corruption and fraud, the Scorpions pursued Zuma and Thint. This was however dropped due to interference in that investigation.

“I am full of the joys of spring,” said Glenister, who had cut a lone figure chain smoking during the court recesses of previous hearings on the matter.

He lost several times. Plans went ahead to disband the Scorpions, who fell under the National Prosecuting Authority and justice department, and form the Directorate for Priority Crime Investigation, (DPCI) otherwise known as the Hawks, within the structure of the police.

“I can only hope, but I cannot predict, that South Africans will now start tightening the reigns on their politicians at every level, from the municipal to national.”

At one point he considered giving up.

“But people were chirping in my ear and making me positive. When battling a lone battle there are times when you get despondent, you just want to walk away and say 'enough'. But human beings have the capacity to inspire others.”

A Hawks spokesman said they would comment after seeing the judgment.

In its ruling, the court explained that the Constitution, the Bill of Rights and international agreements on combating corruption, which had been approved by Parliament, required that states create independent anti-corruption entities.

The judges said the DPCI's activities must be co-ordinated by Cabinet, and that the statute provides that a ministerial committee may determine policy guidelines for the DPCI's functioning, and for the selection of national priority offences.

This makes the unit vulnerable to political interference, with inadequate safeguards.

“... Conditions of service of the unit's members and in particular those applying to its head make it insufficiently independent. Members thus have inadequate employment security to carry out their duties vigorously; the appointment of members is not sufficiently shielded from political influence; and remuneration levels are flexible and not secured. These aspects make the unit vulnerable to an undue measure of political influence.”

The judges also found the Constitution does not oblige Parliament to place a specialised corruption-fighting unit only within the National Prosecuting Authority (NPA), where the Scorpions had been situated.

During the Zuma investigation the NPA was dogged by controversy. One of its heads, Bulelani Ngcuka, eventually left after a long-standing impasse over a statement that although they had prima facie evidence Zuma was guilty, they would not prosecute him.

Another NPA head Vusi Pikoli was subjected to an inquiry over whether he was fit to hold office after the unit attempted to arrest former national police commissioner Jackie Selebi, who is now in the process of appealing a 15-year corruption sentence.

Although the inquiry concluded it could not find he was unfit to hold office, he was fired by former president Kgalema Motlanthe.

Selebi maintained he was the victim of a plot by the Scorpions. - Sapa
Hawks boss questions viability of arms-deal probe

The head of the Hawks, Anwa Dramat, on Wednesday questioned whether it was in South Africa's interest to pursue the only two remaining investigations linked to the arms-deal scandal.

Dramat told Parliament's watchdog public accounts committee, Scopa, that both cases were dependent on obtaining information from other countries, and could therefore take up to 10 years to conclude.

"These two legs await information from other authorities. But even with information from the said authorities, the question is whether it is in the best interest of the country to pursue these investigations, which will take at least five to 10 years and cost more than R10-million."

He added, to the outrage of MPs: "That is for Parliament to take an executive decision on."

Dramat was referring to investigations into claims that senior South African officials took bribes from German and British arms-makers who secured tenders to sell the country German warships and Hawk jet trainers.

He confirmed that a single investigator -- former Scorpions members Johan du Plooy -- has been working on the complex case involving the German Frigate Consortium.

In order to obtain the help of the German authorities, the Hawks asked the National Prosecuting Authority (NPA) to appoint a judge to issue a request for mutual legal assistance. The matter has since been referred to the Special Commercial Crimes Unit.

"Those dockets were presented to the NPA in June," Dramat said, adding that the Hawks had no choice but to wait for the NPA's next move.

The second case, involving claims of bribes from Britain's BAE Systems, appeared similarly stalled, with the police waiting for a decision from the NPA on whether or not to proceed with charges, or to request further investigation.

Dramat said together the two cases involved alleged illicit payments of about R480-million.

Dragging their feet
Opposition MPs charged that the state of play suggested authorities were dragging their feet and might be under political duress to drop any remaining probe into the scandal, which dates from more than a decade ago.

"It is my impression ... that what we've heard today [Wednesday] is that there is an investigation where there are 460 boxes of documents, 4,7-million computer-generated documents and one investigator apparently assigned to that investigation," David Maynier from the Democratic Alliance said.

"I conclude or infer from that that what we are dealing with here is a non-investigation. The inference is always that we are in a situation like this because there has been some kind of political interference."

He asked Dramat and NPA head Menzi Simelane whether President Jacob Zuma and current or former ministers had ever sought to influence the course of the investigations.

Both Dramat and Simelane strenuously denied any political meddling.

Dramat said he had only met Zuma in person on one occasion, "and there was no discussion of any investigation with the president at all".

"I can confirm that at least on my side there has been no pressure or undue influence that has been placed on me in terms of this investigation."

Simelane added: "The answer is no, I have never discussed any matter in the NPA with President Zuma."

He added that he would not rush the cases to suit the opposition either.

"The matter will be dealt with in accordance with the law and as reasonably and possibly as we can. We are not going to do anything that compromises any investigation just because it suits any individuals or parties that are interested in this matter."

Lack of foreign cooperation
Asked about his decision to order the Asset Forfeiture Unit (AFU) to abandon steps to freeze the foreign assets of former defence adviser Fana Hlongwane in the BAE investigation, Simelane again cited a lack of foreign cooperation among the obstacles encountered.

Maynier quipped that the snail's pace at which both cases were proceeding suggested the "Hawks need a strong dose of investigative Red Bull".

The arms-deal investigations go back to the mid-1990s. In 2008, the Scorpions reopened the case involving BAE's sale of Hawk jet trainers to South Africa and raided the offices of Hlongwane and BAE's Pretoria premises at the end of that year.

In February, Britain's Serious Fraud Office decided to settle bribery charges with arms manufacturer BAE Systems, raising concerns that the South African probe would hit a dead end.

In March, Simelane ordered the AFU not to pursue an attempt to seize millions of rands held in Lichtenstein by Hlongwane, saying he was not convinced by the evidence against him. -- Sapa


Scorpions challenge dismissed
2009-06-18 12:52

Related Links
Scorpions bid 'vexatious'
Scorpions 'were the best'
'No regrets' about Scorpions bid
Scorpions action renewed
Scorpions exodus hampers work

Cape Town - Businessman Hugh Glenister's latest bid to save the Scorpions has been rejected by a full bench of the Western Cape High Court.

In a ruling handed down on Thursday, Judge Siraj Desai said he would give reasons later, and that no costs order was being made.

Glenister had brought an urgent application to stop the transfer of the crime-busting unit to the SA Police Service, which was scheduled to happen at the beginning of June.

He maintained the move amounted to disbanding the unit in its present form. The respondents included the president, the ministers of justice and of safety and security, and the head of the National Prosecuting Authority.


However, the State legal team argued when the application was heard earlier this month that Glenister's campaign bordered on vexatious (legal action which is brought, regardless of its merits, solely to harass or subdue an adversary).

Last year he lost a bid to have the two bills scrapping the Scorpions declared constitutionally invalid before they were made law.

The Constitutional Court said then that it was premature to challenge the bills before they had been dealt with by Parliament and the executive.

In November Glenister wrote to then-president Kgalema Motlanthe urging him to submit the legislation for scrutiny by the Constitutional Court before he signed it into law.

Motlanthe rejected the request, and signed the bills in January.

Glenister's attorney Kevin Louis said after Thursday's ruling that his legal team would need to see the reasons before making any decision on an appeal.

"We will request those reasons as a matter of urgency and take it from there," he said.


No comments:

Post a Comment