The Watchdog over South Africa's Elite Police Unit is in Serious Need of Teeth

Organised crime emerged as a threat to the new South African state during the political transition from apartheid to democracy in the 1990s. As such, the new government, led by the African National Congress (ANC), was under pressure to address the growing problem.

During this transition period the then South African Police (SAP) changed from a police “force” that bolstered the apartheid state to a democratic “police service”.

Unfortunately, the new South African Police Service was not equipped to tackle organised crime. This prompted then-president Thabo Mbeki to launch a specialised law enforcement unit to investigate and prosecute serious organised crime. Launched in 1999, they were known as the Scorpions.

Ten years later the Scorpions were controversially dissolved and replaced by the Directorate for Priority Crime Investigation, known colloquially as the Hawks. The move, linked to a multi-billion dollar arms deal scandal which revealed systemic bribery and corruption that implicated top ANC politicians, pointed to the politicisation of law enforcement.

The establishment of the Hawks, as well as various oversight mechanisms, has failed to allay fears that the country’s security apparatus are being held to account. Shortcomings in one of the oversight bodies, the Office of the Judge, is of particular concern.

This much became obvious in a recent stand-off between Finance Minister Pravin Gordhan and the Hawks regarding investigations into the alleged rogue unit at the South African Revenue Services.

Overseeing the police

It was clear to the first post-apartheid government, headed by Nelson Mandela, that political influence would weaken specialised law enforcement institutions and undermine constitutional democracy. His government understood why powerful watchdogs were crucial.

In a bid to increase the legitimacy of the police, the government created oversight structures to hold them accountable. In 1997 the Independent Police Investigative Directorate, previously known as the Independent Complaints Directorate, was established to investigate serious complaints of abuse by the South African Police Service.

In 2010 another accountability mechanism for members of the Hawks was set up – the Directorate for Priority Crime Investigation Judge Complaints Unit, also known as the Office of the Judge.

The police minister is mandated to elect a retired judge to receive and investigate complaints from:

any member of the public who can provide evidence of a serious and unlawful infringement of his or her rights caused by an investigation by the Hawks; or
any member of the Hawks who can provide evidence of any improper influence or interference, whether of a political or any other nature, exerted upon him or her regarding the conducting of an investigation.

It was important to allow members of the public to lay complaints as the police service has struggled to overcome its apartheid legacy. Deputy police minister Makhotso Maggie Sotyu said as much when she commented that the Office of the Judge was important for the South African Police Services to gain legitimacy in the eyes of society:

We must create an environment in which the community can trust the police.

Apart from the presiding judge, the office has two investigators, a professional assistant and an administrator.

New mechanism, old problem?

The main criticism of the Office of the Judge is that it lacks the power to initiate investigations. Investigations only commence on “receipt of a complaint”. This is unlike another watchdog, the Office of the Public Protector, which has the authority to take up cases based on complaints, as well as to initiate investigations itself.

The recent controversial stand-off between Gordhan and the Hawks about investigations into the so-called rogue unit at South African Revenue Services highlights the limitations of the judge’s lack of powers to initiate investigations.

Gordhan claimed that the Hawks were being used to malign him over events that took place under his watch as the former head of the revenue body. At the time he was trying to reestablish confidence in the National Treasury following the “Nenegate scandal” amid allegations it had been targeted for state capture with the help of President Jacob Zuma.

In the absence of Gordhan laying a complaint, the judge’s hands were tied as he could not, off his own bat, investigate the minister’s claim. The fact that Gordhan did not complain to the Office of the Judge speaks volumes about the lack of confidence in its effectiveness. It also shows why it’s important that the office be able to initiate investigations.

Another problem is that the office receives too few complaints to be effective. Over the 2013-14 period it received only five complaints, one of which fell outside its mandate.

This may be due to the overlap between the mandate of the Office of the Judge and the Independent Police Investigative Directorate. As Judge Moosa said in an interview with the author in 2015:

There should be proper co-ordination and rationalisation between these structures in order to serve the public efficiently and effectively. The public should also be educated and informed of the mandate of these structures to empower them to lay complaints with the right institution.

Political interference and oversight

There are other shortcomings too. The appointment process does not provide sufficient safeguards against political interference. The judge is appointed by the police minister in consultation with the justice minister and the chief justice. It is not clear what form the consultation should take, nor how has veto power over whom.

The SAPS Act says the judge “shall report the outcome of any investigation undertaken by him or her or any referral to the minister”. This fails to clarify two important points that have an effect on the office’s functioning.

First, it is not clear how the results of the investigations will be determined.

Second, the judge has no powers to enforce findings and can only give the minister a report with recommendations. The inability to enforce its findings arguably makes the Office of the Judge a toothless oversight body.

The enabling act mandates the judge to report to parliament annually. Even though this may provide the opportunity for all political parties to debate the performance or non performance of the judge, they have no jurisdiction over the incumbent.

Another shortcoming is that the act does not specify the term of office for the judge. It also does not outline a procedure for the judge’s removal from office. This is highly disconcerting given the politicisation of law enforcement in South Africa.

Specialised law enforcement agencies such as the Hawks are invaluable in the fight against serious organised crime and corruption. But it is just as important that they go about their work in ways that are above board. It is thus crucially important to address the shortcomings of the Office of the Judge so that it can effectively carry out its oversight role.