Hawks power 'diminished' by police

14:30 (GMT+2), Fri, 23 August 2013

The Hawks investigative unit has to abide by police objectives under the SA Police Service Amendment Act, the Western Cape High Court heard on Friday.

David Unterhalter, for the Helen Suzman Foundation, argued that the act's guidelines aligned the unit's crime-fighting strategy with that of the police.

"It is trying to diminish the independence of the directorate by trying to force it into the strategic operational priorities of the police," he said.

"If you crowd the slate of the institution and insist it must do certain things, then its ability to focus on corruption is devalued."

The foundation is seeking an order declaring sections of the amended act inconsistent with the Constitution to the extent that they fail to secure adequate independence for the Hawks.

It wants the court to suspend the declaration of constitutional invalidity for 12 months in order for Parliament to remedy the defect in accordance with the court's judgment in the matter.

The amendments were drafted in reaction to a previous Constitutional Court victory by businessman Hugh Glenister, in which the executive was ordered to change the legislation to provide the Hawks with independence from political interference, among other things.

Glenister brought his suit following the dissolution of the Scorpions, an investigative unit under the National Prosecuting Authority, in 2008. The Scorpions were replaced by the Hawks, which fell under the SAPS.

Glenister and the Helen Suzman Foundation (HSF) approached the Constitutional Court separately in November last year to oppose the amendments, arguing they were still insufficient.

Direct access to the Constitutional Court was denied and the two parties agreed to appear before a full Bench of high court judges at the same time and present their arguments.

Unterhalter told the court one of the problematic sections related to the financing of the Hawks.

The Hawks head had to prepare and provide an estimated budget and present it to the police commissioner. In cases where there was disagreement over the amount, the police minister had the power to mediate.

He argued that the unit should be able to request a budget directly from Parliament, rather than from an accounting officer.

"There can't be a situation where the head must look to the commissioner as the accounting officer to procure. You don't want an independent body dependent on the commissioner for procurement."

Judge Siraj Desai said it was standard procedure for all commissioners in government departments to be accounting officers.

"The actual distribution of funds is by the national head [of the Hawks]," he said.

Sapa

http://www.ofm.co.za/article/135469/Hawks-power-diminished-by-police