By Paul Hoffman 27th May 2019
It has been suggested in the media coverage of the establishment of an Investigative Directorate (ID) for state capture and serious corruption offences that the ID is the “New Scorpions”. Some useful lessons can be learned from a comparison of the Scorpions of old with the features of the new unit.
While it is so that both the Scorpions and the ID are housed within the National Prosecuting Authority and both are tasked with countering corruption by investigating and prosecuting the corrupt in high places, there are some important differences in their make-up that need to be scrutinised for the purpose of determining the efficacy of the ID as compared to the efficacy of the Scorpions or Directorate of Special Operations as the long dissolved unit was called.
The Scorpions were a creature of statute. They were formed by parliament via the amendment of the NPA Act after an exhaustive process piloted by then Minister of Justice Penuel Maduna and the then National Director of Public Prosecutions, Bulelani Ngcuka. A full public participation process preceded the promulgation of the new statute and parliament played its role in polishing the terms of the amendment. As a creature of statute, the Scorpions enjoyed the protection, such as it turned out to be, of having to involve parliament in their dissolution as a corruption-busting entity of state. Once again the law-making process was involved and full public scrutiny, including that of our impartial and independent courts was given to the dissolution of the Scorpions of old. This feature gave rise to what is known as the Glenister litigation, originally aimed at saving the Scorpions and later used to set the standards the law requires.
The ID is not a creature of statute. It owes its existence to the decision of the president to invoke a provision in the NPA Act which allows him to appoint, all on his own, investigative directorates which may be needed from time to time by the NPA. Constitutionally speaking, while it may be perfectly in order to create an ID for child trafficking, rhino poaching or gang-busting, since the Glenister litigation it is unconstitutional to have our anti-corruption machinery of state under executive control. This development of the law was ignored during the Zuma years for reasons that stick out like a dog’s tail each day that evidence is presented to the Zondo Commission. It is to be hoped that, as a constitutionalist, the current president will not be equally remiss.
It is important to note that the NPA was stripped of its investigative capacity in respect of corruption by the decision of parliament to dissolve the Scorpions. Incomplete investigations were handed to the police via its new Directorate of Priority Crime Investigation more commonly known as the Hawks. The role of the NPA in respect of tackling the corrupt was confined to prosecutorial functions after the disbandment of the Scorpions.
Because it is within the gift of the president to establish any investigative directorate, it is the president who determines the parameters of its mandate, selects its leadership and chooses its duration in office. The first leader of the ID, Advocate Hermione Cronje, has been given a five year appointment. The duration of her appointment may suggest that the president feels that the work of the ID can be completed within that five year period, or perhaps within such further period as is needed in five years from now. It is hopelessly optimistic to imagine that grand corruption can be eradicated in five years, yet that is the period that the president has prescribed.
The ID head, Advocate Cronje, will be without a job in the NPA in five years from now unless she is able to persuade the president to extend her term of office then. The undesirability of this type of situation has recently been graphically illustrated in the handling of the renewal of the term of office of Robert McBride as head of IPID. His shockingly inappropriate and legally irrational treatment (he was removed because he was doing his job too well – much like the Scorpions) ought to have served as a warning that a single non-renewable appointment for a suitable fixed term (usually ten years, as is the case with the NDPP) is preferable by far to the term arrangement made for the ID leader. Advocate Cronje cannot function optimally if she does not enjoy suitable security of tenure of office. That is lacking in the five year stint she has accepted, not only because she serves at the pleasure of the president, but also because the term is too short. Renewable terms are inimical with independence, a necessary feature of corruption busting.
It is difficult at this stage to compare the operational capacity of the ID with that of the Scorpions. There is no budget allocation and no personnel, other than the leader, are known to the public at this stage. The Scorpions were a long time coming. Their recruits were sent on training courses to the FBI in the USA and to Scotland Yard in the UK. No such forward planning was made for the ID. It is not even clear that the ID will be capacitated to live up to the “Investigative” aspect of its title. Adv Cronje is applying for funding, whether she gets it remains to be seen. This simply ought not to be the case as guaranteed and adequate resourcing should be in place for any anti-corruption entity worthy of the name.
The Scorpions worked on the “troika” system in which intelligence driven investigators, including forensic experts, led by prosecutors were all housed within the unit – a one-stop unified anti-corruption entity of the kind later contemplated by the Constitutional Court in the memorable words of the Chief Justice who, speaking for the majority of the court in the last Glenister case said:
“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. This, in a way, is the issue that lies at the heart of this matter. Does the South African Police Service Act, as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?”
When these words were spoken back in 2014, the Court answered its question in the negative and then proceeded to “edit” the “amended again” legislation creating the Hawks (or DPCI) in an effort to render the Hawks compliant with the earlier requirement that the Court had set in similar litigation in 2011, namely, the constitutional obligation to establish an adequately independent anti-corruption agency.
With the benefit of the hindsight available to objective observers in 2019, it is now pellucid that the Hawks have not succeeded as an “adequately independent” unit in SAPS in that their mission to counter corruption has been a failure. Indeed, corruption stalks the senior personnel of the Hawks, the shenanigans used to dislodge its leader, Anwa Dramat and the abuse of the unit in ANC faction fighting, which saw Pravin Gordhan charged on trumped up offences as well as Johann Booysen hounded out of office as KZN Hawks commander, have left the Hawks well out of the anti-corruption planning of the Ramaphosa administration. Good riddance.
The fundamental structural difficulty with the Hawks has always been that, as a police unit, it is answerable to the National Commissioner of Police and to the Minister of Police in a direct and unavoidable fashion. The ID is subject only to the “final responsibility” of the Minister of Justice and as a unit within the NPA is constitutionally enjoined to act “without fear, favour or prejudice.” In this it is indistinguishable from the Scorpions.
It seems that in persisting with the Hawks, instead of insisting that they be moved out of SAPS, the Constitutional Court in 2014 failed to attach sufficient weight to the admonishment in the earlier 2011 Glenister judgement.
On 17 March 2011, in that case, the Constitutional Court found that corruption is a human rights issue. It reasoned that the duty to respect and promote human rights cannot be properly performed by the state if theft from the poor, which is what grand corruption amounts to, is the order of the day. Additionally, the court laid down, for the guidance of the executive and legislature, the criteria by which effective and efficient anti-corruption machinery must be established. In the course of a learned and lengthy judgment it held ( at para ) that:
“…[on] a common sense approach, our law demands a body outside executive control to deal effectively with corruption”
The Court gave Parliament 18 months to devise remedial legislation aimed at turning the sow’s ear Hawks into a silk purse. That proved impossible due to the absence of political will within the ANC to implement the finding quoted above. Turkeys in parliamentary committees do not vote for a Christmas dinner at which their leaders are on the menu. The 2014 litigation then followed, leaving SA without adequate anti-corruption machinery of state due to the willingness of the Court to allow the continued existence of the Hawks within the SAPS.
While a full parliamentary process was needed to close down the Scorpions, the ID can be closed down at the stroke of the presidential pen. This feature is of little assistance to those who long for security of tenure of office (one of the criteria set in the 2011 judgment) for the anti-corruption entity. It is a racing certainty that the president will come under pressure to wield his pen if the ID gets to investigate well-placed friends and associates of the president. The Scorpions were closed, admittedly after the necessary parliamentary process, because they were doing their job too well by investigating senior ANC politicians in the course of their anti-corruption work. Gwede Mantashe, then Secretary General of the ANC, complained to Helen Zille, then leader of the opposition, about this early in 2008. That a similar fate may befall the ID, via closure at the stroke of the presidential pen, renders the ID an inadequately independent body which is not fit for purpose and not compliant with the law laid down in the Glenister litigation.
Rather than place himself in the type of bind that would arise as a consequence of the ID investigating, for example, Bheki Cele (current Minister of Police) or other senior members of the ANC like Bathabile Dlamini, Gwede Mantashe, DD Mabuza and Malusi Gigaba, the president should give consideration to properly implementing the findings of the Constitutional Court in the Glenister litigation.
This can be achieved by removing the anti-corruption entity from executive control.
There is, by constitutional design, no executive control over any of the Chapter Nine Institutions. They are accountable and report to parliament and their independence is constitutionally protected and guaranteed.
Any persons under investigation who may be aggrieved by the actions of the corruption busters would have to take up their gripes with our multi-party parliament, rather than whisper furtively to the president in an opaque and unaccountable interaction. The president could, if approached, simply shrug and say – take your complaints to parliament because our new anti-corruption entity reports only to parliament, not to the executive branch of government. That is not the way in which the ID is structured.
The courts have set out five basic criteria for anti-corruption entities. They are specialisation, training, independence, resourcing that is guaranteed and security of tenure of office. The Scorpions and now the ID are both lacking in sufficient independence and security of tenure of office. A mere simple majority in parliament ended the life of the Scorpions because they were a creature of statute. A stroke of the presidential pen will bring the ID to a similarly sticky end. In this sense it is easier to dissolve the ID than it was to dissolve the Scorpions.
However, had the Scorpions been a Chapter Nine Institution rather than a statutorily created unit within the NPA, it would have been necessary (and politically impossible) to amass a two thirds majority in parliament in order to close the Scorpions down. It is by locating the anti-corruption entity in Chapter Nine that it is possible to assure the entity of the constitutionally necessary security of tenure of office. That is not the stuff of which the ID is made.
Advocate Cronje should be pondering her structural and operational hurdles before she starts on mission impossible. To her credit, she has noted the need to get her “house in order”. She would be well advised to draw the unconstitutional aspects of the ID to the attention of the president and to ask instead for the protection that location in Chapter Nine would bring the ID. The courts have long required a single entity that is adequately independent to prevent, combat, investigate and prosecute corruption. It is high time that executive control, influence and interference are ended and that the structure and operations of the anti-corruption entity be freed from the current constraints put upon both the ID and the ineffectual Hawks.
It would be ironic if the “new Scorpions” suffer the same fate as the old Scorpions did when they were disbanded. Doing the job at hand well ought not to be a career-limiting activity. The ID was greeted by Richard Poplak, usually a sharp commentator, in effusive terms:
“… the National Directorate for Prosecutions (NPA) will soon set up its own Scorpions-style standalone State Capture investigation and prosecution unit. This, especially for those who have campaigned against the ANC’s rotten patronage network, should be worthy of unambiguous celebration, especially if the NPA goes after corporate criminals and apartheid cold files at the same time. This could start ushering real justice into our accountability-free culture, and should make everyone deliriously happy.”
The way in which to reach the felicitous outcome that Poplak, together with all right-thinking compatriots, envisages is not via the precarious creation of the ID, it is via the establishment of a Chapter Nine Institution that investigates and prosecutes state capture, grand corruption and kleptocracy without fear, favour or prejudice.
The necessary legislation and amendment of Chapter Nine are in draft form on the Glenister page. The missing ingredient is the political will to get serious about countering the corrupt. Here’s hoping that Adv Cronje and her advisors are able to do whatever is necessary to generate the political will to get serious about countering corruption.
Comparing the ID to the Scorpions is a salutary means of examining how the executive may be setting the ID up for failure, a failure that will see it dissolved just as it closes in on the corrupt, in the same way as the Scorpions were closing in on Jacob Zuma when they were closed down in the face of strong opposition from civil society and all political parties other than the ANC.
- Paul Hoffman SC is a director of Accountability Now.