In his recent State Of The Nation Address, President Cyril Ramaphosa admitted that the Zondo Commission has exposed a weak and compromised criminal justice system. Ramaphosa went on to point out that the newest hotbed of corruption, that of Covid-19 procurement, had been decisively dealt with by a ‘fusion centre’ of key law enforcement agencies. Paul Hoffman argues that the planned appointment of a National Anti-Corruption Advisory Council will slow the wheels of justice even further. Hoffman suggests that the council should not be necessary and that the fight against corruption should be led by the Constitutional Court. He adds that the criteria for effective anti-corruption bodies have already been laid out and that no statutory body can uphold them, as long as a simple majority vote in parliament can threaten it’s existence. – Melani Nathan
Creating constitutionally compliant anti-corruption machinery of state
By Paul Hoffman*
The anti-corruption announcements during the presidential state of the nation address on 11 February 2021 are a disappointment to the constitutionalists who wish to see the democratic project envisaged in the SA Constitution turn out more successfully than is currently the case.
The nub of the president’s position is best set out in his own words: “We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.”
These words do not stand up to careful scrutiny when constitutional standards are applied to them. The cabinet accepted a National Anti-Corruption Strategy (NACS) late last year without any help from a National Anti-Corruption Advisory Council. It relied on working groups to produce the strategy and rubber-stamped their work. This step has been criticised previously. It is not necessary to repeat the detail of the criticism. In a nutshell, the multi-agency approach adopted by NACS and cabinet is not legally appropriate, does not work in practice in SA and is not in place in most countries in which corruption is successfully contained and combatted via the single agency approach, spurned by cabinet but apparently favoured by the NEC of the ANC is in place.
The only reason for the establishment of the “Advisory Council” is to resolve the tension between the position of the cabinet – which supports the Zuma-era thinking that went into the NACS it adopted last year and the position of the NEC – which has adopted a more constitutionally compliant best practice model by calling for a specialised, single, stand-alone entity to “deal with” corruption.
The deliberations of the advisory council announced by the president will be a typical illustration of the tendency to kick the can down the road that is the hallmark of bad governance in states that are not capable. There is no need for any advice in a situation in which the law has been spelt out clearly by the highest court in the land in a decision that binds government.
The only sound advice the proposed and intended “Advisory Council” can properly give is that the decisions of the courts are binding and must be implemented by government. This simple conclusion follows from any proper reading of section 165(5) of the Constitution. All organs of state must ensure the effectiveness of the courts and section 237 obliges the president and government to perform all constitutional obligations “diligently and without delay”. Neither of these criteria is served by establishing the council. If its members are true to their task they will have one meeting only and immediately resolve to advise government to stop procrastinating on the proper and wholehearted implementation of the criteria set in the Glenister litigation ten years ago and confirmed by the Constitutional Court in 2014.
The criteria for effective and efficient anti-corruption machinery that have been prescribed by the courts have become known as the STIRS criteria and have been adopted in the resolution of the NEC of the ANC announced on 4 August 2020. STIRS is an acronym for Specialised, Trained, Independent, Resourced and Secure in Tenure of Office. The website of Accountability Now is replete with discussion of these criteria which are based on the work of researchers in the employ of the OECD who seek to establish best practice in countering corruption.
It is alarming that the president seems to think, from the words quoted above, that a statutory body that reports to parliament will fit the bill. While it is so that a reporting line to parliament is a feature of the operational and institutional independence of Chapter Nine Institutions and the National Prosecuting Authority ( the latter subject to the controversial “final responsibility over the prosecuting authority” reserved to the Minister of Justice in section 179(6) of the Constitution), it is not a sufficient solution to the current lack of STIRS-worthiness in the criminal justice administration of SA.
The “secure tenure of office” criterion in STIRS cannot possibly be met by any statutory body, no matter how carefully crafted its mandate. The history of the Scorpions teaches us this simple truth.
The brainchild of the then Minister of Justice, Penuel Maduna, and the then NDPP, Bulelani Ngcuka, the Scorpions were a statutory body within the prosecution service tasked with investigating and prosecuting corruption. Although it derived its mandate from the Constitution, which provides that the NPA has the power to “carry out any necessary functions incidental to instituting criminal proceedings” this fact did not save the Scorpions from a fate which is a possibility applicable to any statutory body. As a creature of a mere statute, created by a simple majority in parliament, it can be, and was, closed down by a simple majority in parliament.
In the face of opposition from all other political parties and much of civil society too, the Scorpions were ignominiously terminated by the Zuma-inspired vote of the ANC members of parliament who were prepared to follow the party line on disbanding a well-functioning effective and efficient unit that would have been equal to the task of nipping state capture in the bud.
To his everlasting credit, Professor Kader Asmal resigned from parliament rather than vote in favour of the demise of the Scorpions. Within a month of the March 2011 decision of the Constitutional Court in Glenister II, Asmal had already publicly pointed out that there are three likely locations for the anti-corruption unit – the National Prosecuting Authority (NPA) (politically somewhat unlikely, given the history of the Scorpions and the current “hollowed out” status of that institution), the Office of the Public Protector (OPP) (this would involve an expansion of mandate and the possible watering down of the efficacy of the OPP in its other valuable work) and a new stand-alone unit – accountable, to civil society via its representatives in Parliament and to the Courts via its work in prosecuting the corrupt among us. Asmal was a constitutionalist on whose kitchen table an early draft of the Bill of Rights was prepared. He also advised the ANC to abandon its national democratic revolution. Advice that was not taken, as can be seen from the recently written ramblings of Jessie Duarte, the deputy secretary general of the ANC.
The point is that a mere statutory body is vulnerable to sharing the fate of the Scorpions and is accordingly not secure in tenure of office. This means that the STIRS criteria can never be fully satisfied by a statutory body and that the creation of such a body would offend against the criteria set by the Constitutional Court in a manner that would amount to a violation of its decision in breach of Section 165(5) of the Constitution.
Much ink is currently being consumed on the perfidy of Jacob Zuma defying the order of the Constitutional Court that he appear before the Zondo Commission. His stance is legally indistinguishable from the position of government on the implementation of the STIRS criteria. Zuma is just openly defiant, while government prefers a more obfuscatory approach to its constitutional delinquency. Splitting the responsibility for investigation of the corrupt off to the police and reserving prosecution to the NPA is at the heart of the obfuscation and of the dysfunction in the criminal justice administration.
It also bears mention that had the Scorpions not been closed down, it is probable that Jacob Zuma would have spent 2009 in the dock in a criminal court facing the charges he is only now facing in the High Court in Pietermaritzburg, instead of which he moved into the west wing of the Union Buildings. Disbanding the Scorpions was step one in the state capture project that so nearly succeeded during the two Zuma presidencies and which is still pursued by elements within and outside the ANC and the public administration.
How then, within the structures of the Constitution, is government to comply with the “secure tenure of office” requirement of the STIRS criteria? Our Chapter Nine institutions, all six of them enjoy a status that is currently envied by the NPA. The enviable position is derived from two sub-sections of the governing principles set out in section181 of the Constitution.
Firstly, sub-section (2) says “These institutions are independent and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice”.
Secondly, sub-section (5) says “These institutions are accountable to the National Assembly and must report on their activities and the performance of their functions to the Assembly at least once a year.”
Any amendment of these provisions and any proposal to close down a Chapter Nine institution must enjoy the support of two-thirds6tt of the members of the National Assembly and six provinces in the National Council of Provinces under section 74(3) of the Constitution.
Put simply: the new statutory body envisaged by the president during SONA, as the product of his new Advisory Council, may, if established, be closed by a simple majority in parliament, but this fate would not be possible if it is housed in Chapter Nine as a new constitutional (not statutory) institution that enjoys secure tenure of office. In short, it would be just as vulnerable to closure as the Scorpions were when Zuma swept to power. We ought, as a nation, to learn from that experience and take steps to ensure it is not repeated.
Without the anti-corruption machinery of the kind envisaged by the binding rulings of the Constitutional Court, the downward trajectory of SA as a state will continue toward ultimate failure, which will occur when there is nothing left for the kleptocrats to steal.
The country does not need the envisaged anti-corruption Advisory Council, it already has all the advice it needs from our highest court. The statutory body the president has in mind will not pass constitutional muster; a constitutionally protected body is required. The hollowing out and compromised status of the National Prosecuting Authority make it unsuitable as the home of the new entity; far better to start from scratch with a new Chapter Nine institution that is constitutionally compliant with all aspects of the STIRS criteria set out in the Glenister litigation. While this does not appear to accord with what cabinet wants and with the outmoded position taken in the NACS which cabinet has adopted, it appears that the NEC of the ANC has embraced the single stand-alone solution that, given the current state the OPP and NPA are in, is the best practice means of achieving compliance with the court’s criteria encapsulated in the STIRS acronym.
If the president is serious about countering the corrupt he will rethink the words quoted at the beginning of this article, take better advice on his obligations to implement the STIRS criteria and announce the scrapping of the idea of having an Advisory Council and unveil the legislation and constitutional amendment needed to establish a new Chapter Nine institution to investigate and prosecute corruption.
In this way, he may restore the trust of the people he leads, inspire business confidence (currently at it lowest ebb in decades), restore the rule of law, attract new investment and enable the creation of jobs that will address the poverty and inequality that invariable dog states in which a culture of corruption with impunity has kleptocrats in its grip.
The president already knows that the necessary draft legislation and a suitable constitutional amendment await the attention of his government on the website of Accountability Now. If he is not distracted or paralysed by efforts to manage factionalism within the ANC, it is high time he leads from the front on countering the corrupt. His current alternative, as spelt out by him during his SONA, is too ghastly to contemplate.
- Paul Hoffman SC is a director of Accountability Now.