THE RULE OF LAW AND THE NATIONAL HEAD OF THE HAWKS 

The Helen Suzman Foundation has always sought to promote liberal constitutional democracy while recognising the importance of the transformative nature of the Constitution. Crucial in this project is the doctrine of the separation of powers and the importance of the identities and functions of these powers.

In this, the courts, the executive and the legislature are the servants of the state, carrying out their duties as prescribed by the Constitution. On this basis, the HSF, in January, took the decision to contest, in the courts, the arbitrary and unlawful intervention by the Minister of Police, a servant of the state. Our legal intervention was premised on the findings of the Constitutional Court's ruling of 27 November 2014 which dealt with the independence of the Hawks.

The decision to go to court was not taken lightly. But given the HSF involvement over a five year period in its struggles to ensure the independence of the Hawks, the Minister's unlawful suspension of the national head of the Hawks amounted to an extraordinary disregard of the Constitutional Court's judgment and a violation of the Rule of Law.

In two successive court cases, heard in the North Gauteng High Court, Judge Prinsloo ruled that the Minister's action had indeed been unlawful in the exercise of its powers, and restored the national head of the hawks to office. The Minister had, in the meantime, approached the parliamentary Police Portfolio Committee and sought its assistance in the matter of lawfully suspending the national head of the Hawks. This matter was then referred to the Speaker of the National Assembly for guidance.

The HSF has since learnt that the national head of the Hawks has indicated his willingness to vacate his position (see report). While this must still be confirmed by the Minister, it is important that all involved - including servants of the state - should be mindful of their constitutional and legal obligations in carrying out their tasks.  Throughout these proceedings the HSF has always maintained that its position is guided by the Constitutional Court's November 2014 decision, and was centred on upholding the Rule of Law.

With Mr Dramat's likely resignation, it would not be unreasonable to suggest that what has now materialised is something akin to a performance of Hamlet without the prince. But this conclusion is only plausible if it is believed that the objective of the HSF's intervention primarily related to Mr Dramat's personal position. It wasn't.  

It was to insist on the Rule of Law.  It is Mr Dramat's decision, in the light of circumstances he faces, whether to remain in office or vacate it.  But the office is more than the incumbent, and the Minister is, we trust, now more aware that civil society, and organisations such as the HSF, will continue to monitor how the executive behaves and how they may be called to account for themselves.

Statement issued by Francis Antonie, Director, Helen Suzman Foundation, February 10 2015

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