Call to bring back Scorpions

The heat will be on in committee room No2 in parliament on Wednesday when the Hawks and the Civilian Secretariat for Police make their presentations on the South African Police Service Amendment Bill.

The bill was drafted after the Constitutional Court last year found that the Hawks - which replaced the corruption-busting Scorpions - was "inconsistent with the constitution and invalid to the extent that it fails to secure an adequate degree of independence".

The court ruled that the legislation that established the Hawks should be amended.

The ruling was in response to an application to the court made by businessman Hugh Glenister after the Scorpions were scrapped in 2008.

The bill was referred to the portfolio committee on police last week.

But it has already been torn to shreds by Glenister's counsel, advocate Paul Hoffman, and by the DA's Dianne Kohler Barnard.

They are in agreement that the bill - drafted by a team of officials from the Secretariat for the Police, the SAPS and the Department of Justice and Constitutional Development - will not pass constitutional muster.

Kohler Barnard has suggested that the Scorpions be reinstated instead of "fiddling with the Hawks".

The court found the fact that a ministerial committee - which must include at least the ministers of police, finance, home affairs, intelligence and justice - had direct oversight of the Hawks particularly problematic. This, according to the judgment, would make it easy for the government to interfere with the unit's investigations.

The ministerial committee had the right to, among other things, determine "policy guidelines in respect of the functioning of the [Hawks]" and which cases the unit would investigate.

But the bill has merely transferred most of the ministerial committee's powers to the minister of police.

Hoffman said: "The ministerial committee's oversight has been removed. However, it is now up to the minister of police to make policies. Relegating it from a ministerial committee to a minister is a distinction without a difference."

In addition, it has been proposed that the minister would have the power to suspend the head of the Hawks without pay "pending an inquiry into his or her fitness to hold such office as the minister deems fit".

Hoffman said that, according to the court judgment, the legislature and the executive should be given the opportunity to create a constitutionally compliant law.

"If . they produce a law which does not pass constitutional muster, the case will be taken back to court.

"The Constitutional Court will eventually be asked to decide whether tweaking [the legislation] for the Hawks was an adequate response to the Glenister case."