It is a given that success in countering grand corruption is a major factor in the future viability of SA. Recovery from the ravages of the pandemic and, before that, from the state capture project operated by the Zuma and Gupta families, among others, as well as honouring the constitutional commitment to upholding the supremacy of the rule of law in the way prescribed in the Constitution are all dependent upon government’s treatment of the high levels of grand corruption abroad in the land.
A snap-shot of developments during August 2020 is useful in analysing progress toward restoring the rule of law when it comes to dealing with corruption. There have been significant steps forward and dithering steps backward during the month.
The month started with a massive step forward on the part of the National Executive Committee of the ANC. A media release given after its meeting over the first weekend of the month includes an encouraging instruction to the national cabinet, which, with the exception of Patricia de Lille, is made up of ANC members. The words of the NEC, as reported in the press, bear repeating:
“The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice,”
This clarion call gives clear direction on the way forward: firstly, the matter is rightly regarded as urgent; secondly, the long debate concerning the use of multiple agencies vs the single permanent agency approach is put to bed and thirdly the need for independence in anti-corruption work is acknowledged, having been smothered in the Zuma era. Fourthly, a permanent agency is required, not one dependent upon the whim of the executive and also not one that could in the future be easily closed down by a simple majority in parliament, which was the fate of the Scorpions.
It seems the NEC has learned from the missteps taken at Polokwane in 2007 (both in relation to urgently dissolving the Scorpions and in relation to electing and protecting Zuma). The NEC’s commitment to the idea that corruption busters must be given the space to operate without fear, favour or prejudice aligns with the Constitution, the law and the binding judicial precedents set in the Glenister litigation.
[A reminder to policy makers and legal drafters: The Constitutional Court has set the basic criteria for the type of agency now envisaged by the NEC. It must operate on a specialised basis (no hiding corruption related files at the bottom of the in-tray on the desks of the officials) that is dedicated to corruption busting only. The personnel need to be trained properly unlike the Hawks who are generally “station detectives” who have been promoted without the type of highly focussed training that was given to the Scorpions by Scotland Yard and the FBI. The independence of the agency is of the essence of its efficacy – it must have the legislated space to function both structurally and operationally without influence or interference by politicians. This notion was heartily embraced by President Ramaphosa during his parliamentary question time in August when he rightly admonished the interim leader of the opposition to “run for the hills” when the time comes that presidents are allowed to interfere in the workings of the criminal justice administration. Adequate resources for the agency are required. Lawson Naidoo, executive director of CASAC, went on television in August to encourage parliament to take this aspect seriously when voting on the budget for the new agency. Without petrol in its tank, artificial intelligence in its arsenal and suitably competitive salaries the new agency will not attract the right personnel and will flounder. The final criterion set by the Constitutional Court is the one that the Scorpions did not possess: secure tenure of office. The new agency cannot merely be a creature of an ordinary statute, as was the case with the Scorpions, a legislated unit in the National Prosecuting Authority that served at the pleasure of a simple majority in parliament. The Scorpions were obliterated by the ANC majority in the first Zuma parliament despite the valiant opposition of civil society, the main opposition parties and Glenister himself. The best practice location for the new agency is in the architecture of Chapter Nine of the Constitution. There it will be protected against closure by a simple majority in parliament. The new Investigative Directorate of the NPA is in a similar boat: it serves at the pleasure of the president, hardly a recipe for security or permanence.]
In short, the NEC has wisely created the space to enable parliament to give favourable consideration to a constitutional amendment needed to house the agency in Chapter Nine and to pass enabling legislation that respects and implements the binding STIRS criteria described above.
The urgent action required by the NEC has not yet taken shape in the corridors of the national cabinet, the justice and security cluster and the office of the minister of justice. Hopefully, “urgency” will be their watchword.
Immediately after the NEC’s resolution was announced the NPA suffered a serious set-back when investigative journalist Jacques Pauw revealed, probably via the records of the Zondo Commission, that the NDPP, Shamila Batohi, is harbouring senior personnel known to have participated in the dirty tricks campaigning that was a hallmark of the Zuma years. Advs Noko and Maema were clearly fingered as criminals in a report more than a year ago. They stand accused of gross criminal conduct in that confidential report prepared under leadership of Adv Rodney de Kock, now a deputy to Batohi. Maema claims he has a version which he has not been asked to share and Noko slams down the phone when queried by the media. Batohi initially said that she was awaiting the report of the Zondo Commission before acting, but later her spokesman indicated steps are in train. At the time of writing, a month later, neither Noko nor Maema is on precautionary suspension, nor are either facing any announced criminal or even disciplinary steps. Formal written queries are not responsively and accountability addressed by Batohi or anyone on her behalf.
Civil society has not been slow to react to “covidpreneurism”. Corruption Watch and PARI have penned a joint letter to the president in which they call for suitable and necessary reforms to the tender system. This step was felt necessary in the light of reports of massive corruption in the awarding of tenders for PPE to cope with the pandemic. The letter does not directly address the main cause of the problem which, quite obviously, is that impunity for corrupt deeds has spread like a virulent cancer during the Zuma era due to the inability of the criminal justice administration to act decisively against the corrupt.
No amount of tender law reform can do more than address the symptoms of corruption, If the cause, that pernicious culture of impunity nurtured by Zuma, is not addressed in the manner set out by the NEC then the tender law reform will fall on barren ground. Conversely, with proper law enforcement, it could be a game stopper for those who regard the public purse as their personal piggy banks.
Accountability Now, partnering with Koogan Pillay, has written to the president and to his minister of justice offering to “thuma mina” with the updating of its draft legislation and a draft constitutional amendment. Interactions with Treasury, the Department of Public Enterprises and the Department of Public Service and Administration have taken place in the wake of the game-changing NEC resolution.
Professor Thuli Madonsela, Tembeka Ngcukaitobi SC and retired top prosecutor Willie Hofmeyr, participating in a CASAC webinar, all acknowledged the need for the new agency envisaged by the NEC. Madonsela has long advocated the housing of the new agency in Chapter Nine of the Constitution, as has Archbishop Emeritus Desmond Tutu, who is patron of Accountability Now.
They were joined by current Anglican Archbishop of Cape Town Thabo Makgoba at the end of August when he issued a clarion call for the establishment of a Chapter Nine Institution during a sermon delivered at a service of the SACC organised to mark its anti-corruption campaign. He said, in the course of the sermon:
“To hold the corrupt to account, we need urgently to transform our corruption-fighting agencies, both by urgently cleaning out and strengthening existing agencies, and adding a Chapter 9 institution to fight corruption which is independent of the control of the Executive. Such a body needs a toll-free number to enable whistle-blowers to report corruption, and we need more robust protection for those whistle-blowers. We have seen too much interference with the investigative and prosecution arms of government over the past two decades to depend only on the Executive to ensure justice.”
The Ahmed Kathrada Foundation and a phalanx of civil society organisations, including OUTA (famous for holding Dudu Myeni to account for her SAA shenanigans), are organising protest action as are members of the trade union movement.
In parliament the Constitutional Review Committee has under consideration a submission made by Accountability Now that includes drafts of the remedial legislation and constitutional amendment required. During presidential question time the president expressed his support for the resolution of the NEC. However, an answer he gave to Narend Singh, IFP Chief Whip, was a little equivocal on the need for a Chapter Nine Institution to house the new agency “at this stage”. If not now, when, Mr President?
The hard truth is that, in the design of the SA Constitution, there is no better place than Chapter Nine for the agency that the NEC has called for as a matter of urgency. Anything less would threaten the permanence that is an express requirement of the NEC resolution quoted above.
The signs are, on balance, good that the government of SA will shortly move to effect urgently needed reform in the manner set out in that resolution, a potential game changer if ever there was one. The new institution will be able to assist in cleaning house in the hollowed out existing institutions, some of which will have to be re-purposed in the reform process aimed at rendering the criminal justice administration fully functional.
Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
7 September 2020.