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AMENDMENTS TO THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA

CONSTITUTION EIGHTEENTH AMENDMENT BILL

Constitution Eighteenth Amendment Bill, 2021  –  proposed by Accountability Now

To be read with:  Integrity Commission Bill, 2021  –  proposed by Accountability Now

GENERAL EXPLANATORY NOTE:

[                      ]        Words in bold type in square brackets indicate omissions from existing enactments.

____________         Words underlined with a solid line indicate insertions in existing enactments.

BILL

To amend the Constitution of the Republic of South Africa, 1996, so as to establish an Integrity Commission within Chapter 9, to further regulate the jurisdiction and accountability of the Public Protector, the police service, the prosecuting authority, and to provide for matters connected therewith.

Parliament of the Republic of South Africa enacts, as follows:—

Amendment of section 179 of Constitution

  1. Section 179 of the Constitution of the Republic of South Africa, 1996 (hereinafter referred to as the Constitution), is hereby amended by substituting the following section for section 179:

National Prosecuting [a]Authority

179.      (1)       There is a [single] national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of—

                (a)     a National Director of Public Prosecutions, who is the head of the national prosecuting authority, and is appointed by the President, as head of the national executive; and

                (b)      Directors of Public Prosecutions and prosecutors as determined by an Act of Parliament.

(2)       The national prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings, except where the Integrity Commission established in section 181 has the exclusive jurisdiction to institute legal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting those legal proceedings, in respect of serious corruption, and to the exclusion of the national prosecuting authority, which shall refer all matters within the jurisdiction of the Integrity Commission to that Commission.

                          (3)       National legislation must ensure that the Directors of Public Prosecutions—

                                                    (a)      are appropriately qualified; and

                                                    (b)      are responsible for prosecutions in specific jurisdictions, subject to subsection (5).

                                        (4)       National legislation must ensure that:

(a)       the national prosecuting authority is independent and subject only to the Constitution and the law; and

(b)       exercises its functions without fear, favour or prejudice[.]; and

(c)       that other organs of state through legislative and other measures, assist and protect the national prosecution authority to ensure its independence, dignity and effectiveness.

                                        (5)       The National Director of Public Prosecutions—

                                                    (a)      must determine, [with the concurrence of the Cabinet member responsible for the administration of justice, and] after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;

                                                    (b)      must issue policy directives which must be observed in the prosecution process;

                                                    (c)      may intervene in the prosecution process when policy directives are not complied with; [and]

                                                    (d)      may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

(i)        The accused person.

(ii)       The complainant.

(iii)      Any other person or party whom the National Director considers to be relevant; and

                                      (e)      must fulfil these responsibilities only in respect of criminal proceedings falling within his or her jurisdiction, to the exclusion of matters relating to serious corruption falling within the jurisdiction of the Integrity Commission.

                                        (6)     No person or organ of state may interfere with the functioning of the national prosecuting authority. [The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.]

                                        (7)     The national prosecuting authority is accountable to the National Assembly, and must report on its activities and the performance of its functions to the Assembly at least once a year.

                                        (8)[(7)]          All other matters concerning the national prosecuting authority must be determined by national legislation.”

Amendment of section 181 of Constitution

  • Section 181 of the Constitution is hereby amended by the insertion in subsection (1) after paragraph (f) of the following paragraph:

“(g)      The Integrity Commission.”

Amendment of section 182 of Constitution

  • Section 182 of the Constitution is hereby amended by the substitution of the following subsection for subsection (1)(a):

“(1)(a)             to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice[;], except where the Integrity Commission established in section 181 has the exclusive jurisdiction to institute legal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting those legal proceedings, in respect of serious corruption, and to the exclusion of the Public Protector, which shall refer all matters within the jurisdiction of the Integrity Commission to that Commission;”

Insertion of sections 192A of Constitution

  • The following section is hereby inserted after section 192 of the Constitution:

“                                              Integrity Commission

Functions of Integrity Commission

192A.              (1)       The Integrity Commission, structured in terms of an Act of Parliament, consists of:

  • a National Commissioner, who is the head of the Integrity Commission, and is appointed by the President, as head of the national executive; and
  • Commissioners acting as deputies to the National Commissioner within each province,

together referred to as the members of the Integrity Commission.

                        (2)       The Integrity Commission has the power, as regulated by national legislation:

                                    (a)          to prevent, combat, investigate and prosecute any conduct that is alleged, reported or suspected to involve serious corruption, being conduct by a person holding public office or any other person, that, as a result of corrupt activities, as further defined in national legislation:

(i)        deprives a particular social group or substantial part of the population of the Republic of a fundamental right; and/or

(ii)       causes loss or damage that in the estimation of the Integrity Commission is greater than the sum of R5 million and/or

(iii)      threatens the security of the Republic;

                                    (b)          to institute legal proceedings on behalf of the state in respect of such conduct; and

                                    (c)          to carry out any necessary functions incidental to investigating serious corruption and instituting legal proceedings with the aim of eventually eradicating serious corruption,

                                    in the Republic.

                        (3)       The members of the Integrity Commission are appointed for a non-renewable period of:

                                    (a)        10 years if that member is the National Commissioner; and

                                    (b)        12 years if that member is a Commissioner.

                        (4)       The Integrity Commission shall not investigate and litigate matters falling within the exclusive jurisdiction of the Public Protector, the police service or the national prosecuting authority, and shall refer such matters to the Public Protector, the police service or the national prosecuting authority as appropriate. In all matters in which the alleged, reported or suspected serious corruption is accompanied by other crimes, the Integrity Commission shall have jurisdiction to prosecute the entire case, unless the National Commissioner decides otherwise, in which event the national prosecuting authority will prosecute all charges including those of serious corruption.

                        (5)       The National Commissioner:

                                    (a)        must determine, after consulting the Commissioners, investigation and prosecution policy in respect of serious corruption, which must be observed in the investigation and prosecution process;

                                    (b)        must issue policy directives which must be observed in the investigation and prosecution process;

                                    (c)        may intervene in the investigation and prosecution process when policy directives are not complied with;

                                    (d)        may review a decision to prosecute or not to prosecute, after consulting the relevant Commissioner and after taking representations within a period specified by the National Commissioner, from the following:

(i)          The accused person.

(ii)         The complainant.

(iii)        Any other person or party whom the National Commissioner considers to be relevant.

                        (6)       Each year, from 2023, the National Commissioner must require, in a format determined by him or her, that all organs of state, state owned enterprises and municipalities furnish a written report to the Commission, by 1 March each year, reflecting measures taken by them for the prevention, combating and eradication of corruption, during the preceding calendar year.

                        (7)       In addition to the reporting described in section 181(5), the Integrity Commission shall report to the National Assembly on its decisions to prosecute or not to prosecute.

                        (8)       National legislation must provide a cooperation framework to govern the interaction between the Integrity Commission, Public Protector, the police service and the national prosecuting authority, and to prevent jurisdictional conflicts.

                        (9)       The Integrity Commission has the additional powers and functions prescribed by national legislation.”

Amendment of section 193 of Constitution

  • Section 193 of the Constitution is hereby amended—

(a)       by the substitution of the following subsection for subsection (4):

“(4)      The President, on the recommendation of the National Assembly, must appoint the Public Protector, the Auditor-General and the members of—

            (a)       the South African Human Rights Commission;

            (b)       the Commission for Gender Equality; [and]

            (c)       the Electoral Commission[.]; and

            (d)       the Integrity Commission.”

(b)       by the substitution of the following section for subsection (5):

“(5)      The National Assembly must recommend persons—

(a)       nominated by a committee of the Assembly proportionally composed of members of all parties represented in the Assembly; and

(b)       approved by the Assembly by a resolution adopted with a supporting vote—

(i)         of at least 60 per cent of the members of the Assembly, if the recommendation concerns the appointment of the Public Protector, [or] the Auditor General, or the National Commissioner of the Integrity Commission; or

(ii)        of a majority of the members of the Assembly, if the recommendation concerns the appointment of a member of a Commission, excluding the National Commissioner of the Integrity Commission.”

(c)        by the insertion of the following subsection after subsection (6):

“(7)      When appointing members of the Integrity Commission fit and proper persons who are duly qualified and experienced in law, law enforcement and the forensic countering of corruption must be appointed.”

Amendment of section 194 of Constitution

  • Section 194 of the Constitution is hereby amended by the substitution of the following subsection for subsection (2):

“(2)      A resolution of the National Assembly concerning the removal from office of—

(a)       the Public Protector, [or] the Auditor-General or the National Commissioner of the Integrity Commission must be adopted with a supporting vote of at least two thirds of the members of the Assembly; or

(b)       a member of a commission, excluding the National Commissioner of the Integrity Commission, must be adopted with a supporting vote of a majority of the members of the Assembly.”

Amendment of section 205 of Constitution

  • Section 205 of the Constitution is hereby amended—
  • by the substitution of the following subsection for subsection (3):

“(3)      The objects of the police service are to prevent, combat and investigate crime, excluding any conduct that is alleged, reported or suspected to involve serious corruption, which falls within the jurisdiction of the Integrity Commission, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law.”

  • by the insertion of the following subsection after subsection (3):

“(4)      The police service shall refer any conduct that is alleged, reported or suspected to involve serious corruption to the Integrity Commission.”

Amendment of section 206 of Constitution

  • Section 206 of the Constitution is hereby amended by the substitution of the following subsection for subsection (2):

“(2)      The national policing policy may make provision for different policies in respect of different provinces after taking into account the policing needs and priorities of these provinces, and shall make provision for the referral of any conduct that is alleged, reported or suspected to involve serious corruption to the Integrity Commission by national, provincial and municipal police services.”

Short title and commencement

This Act is called the Constitution Eighteenth Amendment Act 2021, and takes effect on a date determined by the President by proclamation in the Gazette.

To find more information on the proposed anti-corruption constitutional amendment, please enjoy the full details available here

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