THE HAWKS : PLACING THEMSELVES ABOVE THE CONSTITUTION

The recent Constitutional Court judgment that the establishment of the Hawks, which fall under the control of the National Commissioner of SAPS, lack the independence from political interference required by the Constitution, is both welcome and opportune. While KZN Monitor was the first to draw attention, in 2000, to abuses by the erstwhile Scorpions, it also subsequently argued (in submissions to the Khamphepe Commission and to Parliament) that it should not be disbanded, but that the problems with the unit as then structured should be addressed. It was obvious at the time that situating the new unit within the police would lead to further problems – which is exactly what has happened. Since the inception of the Hawks it has become clear that this unit is another instance of ‘old wine in new wineskins’, in that a number of its staff members have not shed the habits they acquired under apartheid, and, like the SAPS of which they are part, regularly flout the Constitution by engaging in gross human rights abuses.

Members of the police are not only, on occasion, killing innocent people, but they are also, regularly, engaged in acts of abuse and torture, including the notorious ‘tubing’, i.e. near suffocation of victims.  Members of the unit now termed Organized Crime have long been among those associated with such abuses.[i] Organised Crime now falls under the Hawks, and members have wide discretion about which dockets they will take over (and it is by no means clear what the connection is between some of the dockets they take and ‘Organised’ crime). Some of these members are also alleged to collude with certain taxi factions against their rivals, who are then targeted by the police.

One particularly serious case currently being followed up by MERAN (Medical Rights Advocacy Network), which is closely associated with KZN Monitor, involves the detention and torture of Inspector Vinod Maharaj, At the time of his arrest on 6 May 2010  Maharaj was working at the Newcastle SAPS. He was arrested in connection with a serious case, the bombing of an ATM in Mpumalanga province, in which three police members had died – Amerfoort CAS 96/04/2010. He was apparently arrested on the basis that a suspect in Soweto had said that a certain ‘Jimmy Maharaj’  (not his name) had been implicated in this crime. Maharaj and others claim that, given the distance between Newcastle and Amersfoort, and the fact that he was present at events attended by many other people on the days he was supposedly planning and implementing the crime, he could not have been involved in the events described in his ‘confession’ which – as will become evident – was signed under extremeduress (documentation in this case also raises questions about competency levels of those forming part of this supposedly elite unit)

At the time of his arrest, and following thereon over a period of time, Maharaj was severely assaulted and tortured by a number of police members whom he and others have named, all of whom appear connected with either Organised Crime or the Hawks.  Among the methods of torture named are assault, tubing, electric shock treatment, and the placing of a gun in his mouth. He was very badly injured, and his left arm was fractured. While he was being transported around by the police, including to Pretoria, he reported his injuries to other police members, but was denied medical treatment. It was only when his brother insisted he receive medical attention that we saw a doctor (on 13 May). He underwent emergency surgery which necessitated placing a seven screw pin and plate in his arm. He claimed that the police started assaulting him again soon after the operation.  It was while being subject to continuing torture that he signed a ‘confession’, allegedly written by one of the police members who had been abusing him.

Other alleged irregular and illegal conduct on the part of the police members involved include :

– Theft of personal items from his home at the time of arrest, including contents of a safe which included jewellery, and the falsifying of information recorded by the police concerned

– Refusing him permission to have his lawyer present while he was being questioned

–  Extorting money from him

–  Misrepresenting the date and circumstances of his arrest

–  Instructing those responsible for detaining him to put him in the worst cell, and tell the prisoners he was a police member and they should assault him

When Maharaj appeared in court on 10 May in Middelburg he reported his injuries to the magistrate, and, according to the court notes, all five suspects showed  obvious signs of torture. During the next court appearance on 17 May with other the suspects all complained of abuse, but no record appears to have been made. If allegations made by Maharaj are true, it appears that at
least one of the magistrates before whom he has appeared accepts his confession and thinks he should plead guilty. Clearly that magistrate should recuse himself from any further hearings. Surely officers of the court are aware that a confession obtained as a result of torture is not admissible in court? Why is the Middelburg court failing to take action when it is brought to their attention that suspects have been tortured?

There is no good reason why Maharaj should have been refused bail, but he has experienced problems in securing reliable legal assistance (the family has had to report a lawyer to whom a large amount of money was paid,
allegedly for work not done, to the Law Society). Based on the account of events during the past ten months, and observations by those who have followed them closely, the power wielded by the Hawks –  manifest
in the use of threat and brute force and threat –
is highly intimidating to
those they deal with. While the doctor who treated Maharaj appear to have acted in an unethical manner by releasing Maharaj from hospital prematurely, he reports that there were at least a dozen policemen with huge guns around his rooms intimidating patients. Are the courts also being intimidated?

The Constitutional Court has given the government eighteen months to
re-establish an independent unit. However, abuses by the Hawks go well beyond their lack of independence to investigate corruption.  The need
to do something about their gross abuse of
power is urgent.  What is needed, immediately, is the establishment of an oversight body, chaired by a Judge, to which complaints can be addressed – a body which does not report to the Minister of Police[ii].

 



[i] Cases of abuse dealt with by Monitor include members from SAPS stations, National Intervention Unit , Dog Unit, and Public Order Policing as well as Organised Crime

[ii] A fundamental problem with new ICD legislation is failure to remove oversight from Ministry of Police