Abstract
This article analyses the majority and minority positions in the Constitutional Court’s Glenister v President of the Republic of South Africa and Others decision. It will identify the main differences in approach to the issue of the political ‘independence’ of an investigative agency such as the Directorate for Priority Crime Investigation (the Hawks), and its predecessor, the Directorate of Special Operations (Scorpions). The article assesses what ‘room for manoeuvre’ in terms of possible legislation the majority judgment leaves to the South African parliament. The Court’s approach and these apparent requirements are compared with current provisions for political ‘independence’ of anti-corruption agencies in Australia and Indonesia, raising, in particular, an assessment of the arguments for and against (a) the need for an anti-corruption investigative agency to be separate from the ‘regular’ police and prosecution service; and (b) the proposition that an anti-corruption investigative agency requires a higher level of political independence than the ‘regular’ police service(s). It also looks at issues of cost and effectiveness in establishing and maintaining dedicated independent anti-corruption agencies.
Highlights
March 2012 fashion’ or ‘such other offences or categories of offences as determined by the President by proclamation in the Gazette’.3 Being located within the NPA, the Directorate was subject to the constitutional requirement that the NPA ‘exercises its functions without fear, favour or prejudice’.4 The courts interpreted this language to mean that the NPA was to enjoy political ‘independence’ in the sense that it would not be subject to political direction by government with respect to the exercise of its investigative and prosecutorial functions in individual cases.[5]
At its national conference in 2007, the African National Congress (ANC) resolved that the Scorpions should be disbanded[10] and their responsibilities transferred to a new unit within the South African Police Service, accountable to its Commissioner.[11]
In March 2011 the Constitutional Court, in a 5-4 decision, rendered its judgment, which upheld the appeal and declared the legislation establishing the Hawks unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.’[17]. The court gave the South African government 18 months in which to rectify this situation, during which time the Hawks could continue to operate.[18]
Summary
This article analyses the majority and minority positions in the Constitutional Court’s Glenister v President of the Republic of South Africa and Others[1] decision. In March 2011 the Constitutional Court, in a 5-4 decision, rendered its judgment, which upheld the appeal and declared the legislation establishing the Hawks unconstitutional and ‘invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.’[17] The court gave the South African government 18 months in which to rectify this situation, during which time the Hawks could continue to operate.[18] It is worth noting two features of the legislative mandates of these two units that are potentially of significance in appreciating the implications of the Constitutional Court’s decision in the Glenister case. We compare the Court’s approach with provisions for anti-corruption institutions in two other jurisdictions, Australia and Indonesia
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