Institutional Independence: Why it is Important and What We Are Doing

Wednesday, 10 February, 2016 – 10:19

In this article, the author provides an overview of the HSF’s continued fight to secure adequate independence for the institutions charged with protecting the constitutional rights of South Africans

Wednesday 10 February, 2016 – 10:19

Since its inception in 1993, the HSF has promoted the liberal democratic values that informed, guided and defined Helen Suzman’s work. The Helen Suzman Foundation (‘HSF’) has a particular interest in the values enshrined in the Constitution. Central to the freedoms conferred by the Constitution are checks and balances designed to guard against abuse of power. At the largest scale, these checks and balances are ensured by a division of functions between the Executive, Legislature and Judiciary. Within this framework, there are a number of institutions which need a considerable degree of independence from day-to-day political pressures if they are to serve and protect the public. The HSF maintains that the promotion of liberal constitutional democracy is maintained by strong constitutional institutions. And strong constitutional institutions require adequate independence and protection to safeguard our rights.

The HSF has found considerable cause for concern about such independence and we have been involved in court action to contend against its erosion and to obtain legal clarity about the applications of the general principle of independence to specific instances. We continue to witness these infringements extending beyond the Bill of Rights and into the very constitutional institutions that ultimately regulate interactions between government and citizens.

This article sets out the crucial issues which the HSF has and continues to engage. The court battles may seem far removed from each other, however, the war is against a political organisation which seeks to consolidate power at all costs and, in the process overriding checks and balances which protect the public.
The notion that the African National Congress (‘ANC’) is the ‘ruling party’ has itself become controversial. The former Governor of the Reserve Bank Tito Mboweni has responded to letters by Former President Thabo Mbeki in which he referred to the ANC as the ruling party. Mboweni’s response was as follows:

“Political parties, by their nature, cannot ‘rule’, but ‘govern’ based on the will of the people. They are voted into power. They can be removed by the voters, the people…So, the ANC in South Africa is the current ‘governing party’ not the ‘ruling party’[1]

That the consent of the people authorises government should never be forgotten, as retired Archbishop Desmond Tutu has warned [2].

The Hawks

In 2010, the HSF was granted leave to intervene as amicus curiae in the Constitutional Court proceedings instituted by Glenister. The proceedings concerned the constitutionality of the South African Police Service (‘SAPS’) Amendment Act which disbanded the Directorate of Special Operations (‘Scorpions’) and created the Directorate for Priority Crime Investigation (‘Hawks’). The HSF was of the view that the Amendment Act unjustifiably infringed upon a variety of basic human rights while breaching the State’s constitutional obligations to promote, protect and fulfil these rights. Furthermore, the Amendment Act severely hampered the State’s ability to deal effectively with the scourge of corruption and organised crime.

On 17 March 2011, the Constitutional Court ruled in favour of Glenister, in no small part as a result of the intervention of the HSF as amicus curiae. The Court made two key findings. Firstly, that the Constitution imposed a duty on the State to establish and maintain an independent body to combat corruption and organised crime. Secondly, that the creation of the Hawks did not meet the constitutional requirement of adequate independence.
With regard to concerns about corruption the Court held at paragraph 166 that:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

The Amendment Act was referred back to Parliament to make the necessary amendments, however, Parliament failed to incorporate any of the necessary amendments. As a result the HSF initiated court proceedings. The Western Cape High Court decided in favour of the HSF.

Subsequently, the HSF applied to the Constitutional Court to grant an order for confirmation. This is a necessary procedural step when constitutional matters are at stake. The Confirmation application was to be heard at the same time as the State’s application to appeal. The Court issued directions and the matter was set to proceed on 14 May 2014. The matter, however, was postponed as the President’s Counsel had been unable to provide their Heads of Argument timeously.

On 27 November 2014, the Constitutional Court ruled in favour of the HSF (‘November Judgment’). The Court held that the Amended Act did not ensure adequate independence for the Hawks. The November Judgment highlighted three concerns. The Court upheld the HSF’s challenge that sections 17CA(15) and (16) amounted to a renewal beyond the prescribed period of the Head’s and the Deputy Head’s terms of office. This undermines the operational independence of the head and deputy head of the Hawks.

Secondly, as to suspension and removal, the Court held that the Minister’s power to remove the Head from office in section 17DA(2) was a threat to his/her job security. Lastly, as to the content of Jurisdiction, the Court found that the State’s failure to provide a clear mandate to the Hawks to fight corruption and to provide for a dedicated anti-corruption agency was unacceptable. The Court deleted the offending provisions making any amendments only possible via legislative intervention.
The outcomes are numerous. The HSF introduced argument based on best international practice. The Court reaffirmed that provisions in the Constitution may be interpreted in light of international instruments, norms and values as long as they are consistent with the spirit of the Constitution. It also found that independence needs to be adequate so that institutions may perform as they are required to do for the realisation of the rights with which they are concerned.

Unfortunately, the Constitutional Court’s November Judgment was entirely disregarded by the Minister of Police, who relied on the grounds that had been excised from the Amended Act by the Constitutional Court, in his decision to unlawfully and, arguably, irrationally suspended the National Head of the Hawks in December 2014.

As a result, the HSF went back to court and on 23 January 2015 where the Pretoria High Court handed down judgment in favour of the HSF. The judgment vindicated the Constitutional Court’s November Judgment, reaffirming the content of ‘adequate independence’ as well the trite fact that Government is bound by the Constitution.

The Minister applied for leave to appeal, the effect of which would be to stay the order of 23 January. The HSF brought a Rule 49(11) as read with Section 18 application (‘Enforcement Order’) that sought to have the order of 23 January made enforceable, subject to the finality of any appeals in the future.

On 6 February, the Pretoria High Court handed down judgment, in which it, dismissed the application for leave to appeal with costs and granted the Enforcement Order. It is worth mentioning at this point that Rule 49(11) has subsequently been repealed from the law books [3].

This did not dissuade the Minister, or his legal counsel, from petitioning the Supreme Court of Appeal (‘SCA’). The SCA dismissed the matter on 7 May 2015.
In January 2015, however, the Minister of Police had appointed Lieutenant General, Berning Ntlemeza, as Acting Head of the Hawks, and reaffirmed same with a flimsy notice after having had the Court rule against him in January and February 2015. The new Head of the Hawks seems to continue his colourful history [4] into his present office [5]. At present, Lieutenant General Ntlemeza is not only occupying his position unlawfully but by continuing to do so is undermining the Constitution and its values [6].

The Judicial Service Commission (‘JSC’)

The HSF has always endeavoured to protect the Judiciary. Its work has ranged from the Justice Symposium Series [7] to publishing its view on the continued attacks on the Judiciary [8]. Given the important constitutional function of the Judiciary, it is crucial that it has the independence required to function as a constitutional check and balance between the various arms of government.

In 2013, the HSF instituted proceedings against the JSC. The case involves certain JSC decisions which expose deficiencies in the process being adopted for the nomination and selection of judges. The Constitution makes provision for the requirements that need to be considered in the appointment of applicants to the bench as follows in Section 174:

Appointment of judicial officers

Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen;
The need for the judiciary to reflect broadly the racial and gender composition of South Africa must be considered when judicial officers are appointed.

Both requirements matter. The need for the bench to ‘reflect broadly the racial and gender composition of South Africa’ cannot trump the need for ‘appropriately qualified’ women or men who are ‘fit and proper’. The processes of selection of Judges are crucial to the independence of the Judiciary. Accordingly, it needs great care.

The HSF launched an application which seeks to challenge the lawfulness of the current nomination processes with reference to the constitutional provisions
governing judicial appointment. The Review application was done in accordance with Rule 53 of the Uniform Rules of Court. As a result, the JSC handed over all publically available documentation but withheld the existence of transcriptions and recordings pertinent to the HSF’s case.

The refusal by the JSC to disclose certain documents necessitated the filing of an Interlocutory Application. The JSC’s refusal to disclose relevant documents constitutes a failure to comply with the Uniform Rules of Court and the HSF is seeking to compel compliance in terms of Rule 30A.

The HSF noted that the application directed the disclosure of transcripts and recordings of deliberations that preceded the decision under review. These deliberations, the HSF maintains, will serve as evidence of the procedures adopted and factors considered by the JSC during the decision-making process. The JSC responded by arguing that the deliberations were private and that the court rules do not require disclosure thereof. All previous litigation involving the JSC has increased transparency in the process.

The Application was dismissed and the HSF has successfully petitioned the SCA. The matter will be heard in 2016. The JSC as well as various amicae, arguably, continue to strongly oppose transparency in their arguments. The HSF is prepared for a major battle on the issues of transparency and non-politicized use of transformation, a battle that is likely to continue to the Constitutional Court in regard to both the interlocutory application as well as the application in main.

National Prosecuting Authority (‘NPA’)

The NPA is tasked with deciding to prosecute on the basis of evidence before it. This applies to local as well as international crimes; the latter as a result of, most notably, the Rome Statute. If the NPA is not sufficiently independent to adhere to its mandate in light of the Constitution then there is a problem. If the NPA is a political tool, corruption and human rights violations will surely follow.

Over the past four years the NPA has been headed by no less than three National Directors, excluding Acting Directors, a post which can be held for up to 10 years. The fact that the office has seen such turnover raises concerns. The latest departure was Advocate Mxolisi Nxasana. In March 2015, in response to the call for comment by the Cassim Inquiry into Nxasana’s fitness to hold office, the HSF put forward a submission highlighting the importance of the selection and dismissal processes as housed in both the Constitution and the NPA Act. In the Cassim Inquiry Order the HSF’s input was applauded.

However, the Cassim Inquiry was dissolved by the President at the 11^th hour and a severance package was agreed between the government and Nxasana. He left with a golden handshake of approximately R17 million [9]. His successor is Advocate Shaun Abrahams who took office on 18 June 2015. The appointment occurred at great speed and it is not clear that all the procedures, including correct security clearance, were complied with. This may ultimately create a situation in which Abrahams would be subject to an inquiry.

The following months saw the irrational withdrawal of charges against individuals such as the controversial Head of Prosecution Services, Nomgcobo Jiba [10]. All these actions call into question not only the independence of the NPA but the validity of the decisions within the NPA as a whole – an indictment against the State and a strike against our Constitution.

Independent Police Investigative Directorate (‘IPID’)

In February 2015 IPID came into the spotlight when the Minister of Police instituted Precautionary Suspension proceedings against the Head of IPID. The Minister intervened on the grounds that he was unhappy with the findings and decisions regarding the alleged involvement of senior Hawks officials in the unlawful rendition of Zimbabwean nationals back to Zimbabwe. The Final IPID Report, signed by McBride, found no case against most people involved, including the then Head of the Hawks. The Minister’s intervention involved a series of unlawful and irrational steps namely: having a private law firm review the IPID Reports; having terms of reference that afforded the parties involved no opportunity to present their evidence and argument; and last but not least paying the law firm for this review.

The lawfulness of the Precautionary Suspension was challenged on an urgent basis and the Court ruled in favour of the Minister only in so far as the matter was not urgent. The Court decided that the lawfulness of the decision, should it be taken by the Minister, would be dealt with at a later date.

On 24 March, the Minister suspended the Head of IPID. The HSF applied to be amicus curiae in the proceedings. Mr McBride consented but the Minister opposed the application vehemently until consent was given the night before the hearing. Resistance by government to allow any amicus intervention is inappropriate in matters dealing with constitutional norms and values.

On 27 August 2015, the date of the hearing, the HSF argued that the executive officer of IPID enjoyed even more protection than that of the Hawks as a result of not only international comparators but the very wording of the Constitution itself.

On 4 December 2015, the Court handed down judgment in favour of the Applicant and by extension the HSF. The HSF’s work in the area of the Hawks formed a substantial part of the precedent utilised in the judgment. The Judge confirmed the measure of independence to be granted to the Head of IPID and noted that because constitutional issues were involved the matter would be sent for confirmation by the Constitutional Court. Confirmation would validate the HSF’s ongoing fight for institutional independence.

Strengthening the Constitution in the Global Sphere

In June 2015, the South African Litigation Centre (‘SALC’) launched an urgent application to compel Government to effect an arrest warrant issued by the International Criminal Court (‘ICC’) against the President of Sudan, Omar al-Bashir (‘al-Bashir’). Al-Bashir prima facie appears to be guilty of murder, rape, torture, extermination, forced displacement and pillaging, which led to the death of more than 300 000 people and the displacement of over 2.5 million people.

The High Court granted the order but the State failed to enforce it. The State has appealed the High Court decision. The same attitude seems to have been adopted by the African Union (‘AU’) [11] and their displeasure with the manner in which the ICC is dealing with AU affiliates [12].
The State lodged the record in the proceedings and obtained an expedited date for the hearing of the matter by the Supreme Court of Appeal. The matter will be heard on 12 February 2016. On 24 December, the HSF requested the consent of the parties to be admitted as amicus curiae. It was given consent by SALC, but the State refused to give consent. The SCA has admitted the HSF as amicus curiae.

The HSF’s submissions address a discrete legal issue regarding the relationship between customary international law and the Constitution. The submissions concern the proper interpretation of the Diplomatic Immunities and Privileges Act, 2001 (‘DIPA’), taking into account the Preamble, Chapter 1, Chapter 2 and section 232 of the Constitution.

The HSF submits that section 4(1)(a) of DIPA does not operate as an absolute procedural bar – that is, it does not always afford immunity – to the detention, arrest and prosecution of heads of state who prima facie appear to have committed crimes against humanity, war crimes or genocide; and does not do so in this case. The State has a duty to detain, arrest and/or prosecute such persons. In the absence of immunity, the State cannot justify its failure to conform to this duty when al-Bashir visited South Africa in June 2015. Therefore, it is submitted, the leave to appeal application should be dismissed.

Conclusion

Through the HSF’s efforts in securing the independence of an anti-corruption fighting agency the rights of citizens enshrined in the Constitution should be more fully realised. Through the efforts of the HSF to strengthen the criminal justice system by means of intervention in the JSC, Hawks and IPID, the HSF helped ensure that those who seek to undermine the rights of South Africans can be held accountable.

Through the HSF’s intervention in the al-Bashir matter, we have sought to not only strengthen the Constitution but to show the world that our Constitution can influence the manner in which states, far removed from our corner of the world, interact with not only their citizens but within the family of nations as a whole.
The HSF will continue to fight in support of constitutional supremacy and institutional independence, a fight that will alone secure the democracy South Africans’ deserve.