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An anti-corruption court and a TRC for the corrupt – really?

It is reported that the Catholic Bishops Conference favours the establishment of a specialised anti corruption court, while the SA Council of Churches is flirting with the idea of a TRC type process for the corrupt. Both of these proposals have the constitutionalists reaching for the eau de pippleparrot.
Proposals that are not carefully thought through can complicate the solution to what, in essence, is a simple problem. It does not suffice to seek to treat the symptoms in the hope that the scourge of corruption will not, in the words of the Chief Justice, “graduate into something terminal”. Our economic relegation to junk status, the poor state of the infrastructure of the country and the profligacy of the state owned enterprises many of them now mere piggy banks for the captured elite, all point toward South Africa become a failed state sooner than everyone hopes. The #Guptaleaks confirm the betrayal of the promise of a new order infused with dignity, equality and freedom for all under leaders of probity and integrity. 

The cause of the problem is an ever widening culture of corruption, one that has taken root and flourished as more and more malleable and immoral chancers climb on the bandwagon of impunity from punishment for their corrupt activities.

This phenomenon does not occur because there is no specialised anti-corruption court (in fact there are) nor will it end just because a TRC type process is put in place for the purposes of absolution, after which the rot will simply continue. 

Corruption with impunity, our new national professional league sport, will only be properly dealt with when the failure of the state to prevent and combat, investigate and prosecute the corrupt is brought to an end.  

The courts have recognised this self-evident fact.

In a country committed to the justiciable delivery of the human rights guaranteed to all in the Constitution the incidence of corruption is a human rights issue. Diverting public finds to the corrupt means that the poor have to wait longer for jobs, an escape from grinding poverty and the promotion of equality through improved education, better health care services and the provision of adequate housing and sanitation. Corruption exacerbates inequality, a huge problem in SA, and it makes it impossible for honest civil servants to perform to the high standards set in the Constitution. 

An efficient and effective anti-corruption entity, the missing ACE, is what is actually required. Without it, the anti corruption courts will (and do) sit idle, corruption goes unpunished. Any TRC type process will undermine the rule of law and the right of all to equality before the law. 

Corruption in a modern constitutional state is unforgivable. The corrupt must be brought to book if the culture they embody is to become less popular than it evidently is at present. Equality before the law must be protected and respected, the mere notion of a TRC type solution falls foul of the equality provision in the Bill of Rights and would be open to constitutional attack on the basis that the whole scheme is inconsistent with the right to equality before the law and is accordingly constitutionally invalid. A TRC for the corrupt would not be a reasonable or justifiable limitation on the right to equality before the law. 

The required ACE has to be established, and established soon. Its characteristics have been set out in binding terms by our highest court. The ACE must have specialised and properly trained personnel. It must enjoy structural and functional independence that enables the ACE to function without fear, favour or prejudice. The resources of the ACE must be guaranteed and they must be adequate for the task at hand. Importantly, given that the Scorpions were not so characterised, the staff must enjoy security of tenure of office. All of these features of the ACE should already be in place simply because this is what the Constitutional Court has ordained in a manner that binds the state.  

The Hawks are our current ACE. 

Anyone who thinks that the Hawks are the embodiment of the criteria laid down by the court has simply not been paying attention. Their work rate shrinks year on year, the value of goods and other proceeds of crime seized by them lessens and not a single big fish has been brought to book by them, not even Pravin Gordhan, on whom they misspent an inordinate amount of time and energy. Some say – with justification – that the Hawks have deteriorated into the dirty tricks department of the Zuma faction of the ANC. Hence the excessive hounding of PG and others like him by the misguided Hawks who turn a blind eye to the Guptas and their fellow travellers. 

The faith-based organisations and civil society need to apply themselves to solving the lack of an effective ACE if the problems of corruption are to be sustainably solved. Having spent some time and effort on this thorny task, Accountability Now proposed, as long ago as 2012, to the Constitutional Review Committee of the National Assembly, that the establishment of a new Chapter Nine Institution, the Integrity Commission, be considered. In April 2016 a hearing was afforded by the committee, which is still pondering the idea.

There exists, available on the Accountability Now website, a draft enabling amendment to the Constitution and the draft legislation required to bring into existence the type of ACE that complies with all of the criteria laid down by the court, the new Integrity Commission, which will supplement the work of the Public Protector on maladministration and follow up on the many red flags raised by the Auditor General. Unlike these two existing Chapter Nine Institutions, the Integrity Commission will have the power to prevent, combat, investigate and prosecute corruption in the private sector as well as the public sector. 

It is suggested that all right-thinking voters should be encouraged to insist that the political party of their choice embrace , as part of the relevant election manifesto, the idea of establishing an Integrity Commission. This demand should pertain also in December , when delegates vote for candidates at the ANC conference. 

There is nothing wrong with the existing courts when it comes to countering corruption. There is no good in the idea, however popular it may be with the unthinking, of an unconstitutional TRC type process. The correct approach, it is respectfully suggested, is to translate the law laid down by the Constitutional Court, into an institutional framework for the ACE that handsomely complies with the required criteria highlighted by the court in its March 2011 judgment in the Glenister case. The public has suffered long enough under the spread of corruption, which now, in the words of the court in that case “threatens to fell at the knees” much of what we hold dear in our nascent constitutional democracy. The state has been allowed to dilly dally endlessly with the Hawks. The corrupt have been getting away with their nefarious activities for too long. 

It is now time to bring pressure to bear to establish the Integrity Commission or Eagles, as they have been dubbed; because Eagles fly higher, see further and go after bigger prey than Hawks. DM 

Paul Hoffman SC is a director of Accountability Now and author of Confronting the Corrupt. 

Article published in the Daily Maverick on 19 October 2017

 

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