There is no law or anything else in the constitution that empowers the Hawks to have “summoned” Finance Minister Pravin Gordhan, respected retired justice of the Constitutional Court Johann Kriegler has said.
“Let’s start at square one. Do the Hawks have any power to summons? That is a big no,” he told The Citizen. “There is no power under our law and constitution to summons someone.”
He also said that the method used by the Hawks, by which it made public its intention to have Gordhan appear at its offices on Thursday, was a device used to intimidate someone. “It’s usually a device used to intimidate and frighten people. It’s also a device used to humiliate the person even more.”
Kriegler said, however, the Hawks did have the authority to invite a person to speak to them, but they were “certainly not obliged to”.
“And certainly they do not splash it across the media, as in this instance,” he added.
“So that points to number one. I have seen the alleged charges and the minister dealt with each one in detail, refuting them in law, and in fact.
“I don’t know their motives.”
Kriegler said the Hawks, in contrast to the Scorpions, “are not entirely independent of political influence. The current head was appointed under questionable circumstances.”
Legal expert Cliff Alexander agreed there was no legal obligation to agree to signing a warning statement. “They will probably now go to the NPA. Then they institute proceedings, but only if there is prima facie evidence. They will be reckless if they were to arrest him. And they [the Hawks] don’t have a right to summons him.”
Meanwhile, the Presidency said although President Jacob Zuma expressed his full support and confidence in Gordhan, he “does not have powers to stop any investigations into any individual/s”.
Constitutional Law expert Pierre De Vos said be that as it may, with the Hawks being independent, the president could instruct the police minister to suspend the head of the Hawks if he was believed to have abused his power – or was guilty of misconduct. An inquiry could also be instituted to sack him, he added.
“If it is clear the head is abusing his power and acting lawlessly, the Cabinet member under guidance of the president can suspend and remove him.”
De Vos added on his website that “where there is no evidence that the conduct being investigated constitutes a criminal offence”, “where the facts on which the investigation is purportedly based have mostly been discredited”, and “where the investigating body pursues suspects without providing any legal or factual basis for what, from afar, looks suspiciously like a politically motivated witch-hunt, platitudes about the law having to take its course will not do”.
“In such a context, an insistence that ‘the law must take its course’ becomes an empty cliche, a cliche that is probably being deployed with the aim of shutting down discussion about the nefarious political shenanigans that the Hawks appears to be involved in,” he said.
Until the Hawks identified the crime that was allegedly committed and could produce credible evidence, ordinary citizens would be justified in assuming that this case had nothing to do with the law taking its course, said De Vos.