Bill to make Investigating Directorate permanent is flawed, parliament hears

by | Oct 26, 2023 | Chapter 9, General | 0 comments

The proposed amendments to the National Prosecuting Authority Act will leave a new, permanent investigating body within the NPA as vulnerable to political whim as the now defunct Scorpions, Accountability Now argued on Wednesday in public hearings on the bill.

“All we are doing now is turning the clock back to where we were before the Scorpions were closed down,” the director of the nonprofit group, advocate Paul Hoffman, told parliament’s portfolio committee on justice.

He said the problem with the bill tabled by Justice Minister Ronald Lamola in August was linked to the intrinsic lack of independence of the NPA itself because the legislation locates the proposed Investigating Directorate Against Corruption (IDAC) within the prosecuting authority.

Among the problems this implied was that it would, like the rest of the NPA, rely on a ministerial allocation of funds.

“Because the NPA is not independent, as a unit within the NPA, the IDAC will not be independent.

“Enjoying guaranteed resources? Nothing about that,” Hoffman said, adding that neither did the provisions of the bill guarantee security of the tenure for the body envisioned to fill the void left by the shuttering of the Scorpions in the early days of the Jacob Zuma administration, in line with a resolution adopted at the ANC’s elective conference in Polokwane in 2007.

It had been the most successful corruption fighting body in democratic South Africa, and secured a string of convictions of high-profile figures, among them former national police commissioner Jackie Selebi.

The disbandment of the Scorpions and its substitution with the Directorate for Priority Crime Investigation, prompted a legal review of the constitutionality of the legislative amendments that allowed for the creation of the directorate better known as the Hawks.

The constitutional court, in a 2011 judgment referred to as Glenister II, held that the Constitution and binding international law agreements placed a pressing duty on the state to set up an effective and independent mechanism to combat corruption.

It found that the enabling legislation was invalid because it failed to safeguard the independence of the Hawks by properly insulating it from political interference.

Hoffman said the bill now before parliament did not meet the criteria laid down in that majority ruling by justices Dikgang Moseneke and Edwin Cameron, namely that the relevant organisation must be specialised, trained, independent, resourced and have security of tenure.

He called on the committee to send the department back to the drawing board.

“The duty of this committee is to [say] thank you dept of justice, this is not what the law and the Constitution requires.”

The bill seeks to make good on President Cyril Ramaphosa’s promise, in response to the Zondo report on state capture, to convert the Investigating Directorate into a permanent body. Accountability Now insists that a better alternative would be to establish “a new Chapter Nine institution to prevent, combat, investigate and prosecute serious corruption and organised crime”.

That proposal has the support of the Democratic Alliance, which is preparing to table two private member bills, one to amend the NPA Act and another to amend the Constitution.

A raft of presenters concurred with the concern that the amendment now under consideration does little to shore up the independence of the NPA, and by extension fails to guarantee that of the proposed IDAC.

In his official response to the Zondo report, Ramaphosa gave a cryptic undertaking to resolve concerns about the justice minister’s role vis-a-vis the prosecuting authorities.

He said: “Work will be undertaken to clarify the minister’s ‘final responsibility’ over the NPA as set out in section 33 of the NPA Act and settling aspects related to the NPA’s financial and administrative independence.”

But whereas the undertaking to make the ID a permanent structure is now enshrined in the bill before the committee, this second commitment appears to have fallen away.

Nonprofit organisation Open Secrets submitted that the bill should be rejected for failing to entrench the overarching independence of the prosecuting authority, saying: “We believe this bill should be an opportunity to address the NPA as a whole.

“We leave the NPA in a position where other parts of its mandate is left by the wayside and that unfortunately speaks to the way in which its independence is …. vulnerable.”

Jean Redpath, a senior researcher at the Dullah Omar Institute, said this was the time to amend the bill in a way that addresses longstanding concerns about the independence of the NPA.

“It does not fall to the NPA itself to draft a budget, there is no budget vote that is for the NPA itself.

“We think this is a problem and it has been a problem. The insufficient resources and the inability to work with those resources has clearly been a problem within the National Prosecuting Authority, particularly over this time where there has been a concerted effort to try to turn around the situation in our country.

“We are at a fulcrum point where things can get better or they can get worse, and if we are able to turn things around then they may get better. At the moment the NPA is hamstrung by having to go cap in hand to the department of justice to do what it needs to do, and the most important part there is the specialist skills they need.”

This applied not only to state capture and money-laundering cases but affected the authority’s ability to successfully handle ordinary criminal cases.

“We think this has been a problem, not only for political reasons but it is a bureaucratic step in the process and we know that ministers are busy, have many things to do and if the minister has to be consulted at every point this is obviously going to slow things down.”

Advocate Anton du Plessis, the second-in-command at the NPA, acknowledged concerns that the bill failed to address these concerns.

“We do believe that this is not a stop-gap measure perhaps but a very important step toward securing the independence of the Investigative Directorate in line with constitutional court judgments as well as the other legal obligations under the NPA,” he said.

“We believe that it is that step which is required now, which is realistic now and we are totally comfortable with whatever broader reforms have to happen down the line, but we believe that this is an important step in strengthening the NPA’s independence and ability to deal with complex corruption corruption, in a way that we know works and in a way that is aligned with international best practice and a prosecution-led model.”

He said he believed bringing the ID under a legislative framework was significant in terms of permanence and that this dealt with questions about security of tenure.

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