By Paul Hoffman
24 Aug 2022
Paul Hoffman SC is a director of Accountability Now.
The Constitutional Court has ordered Parliament to put in place effective, efficient and independent anti-corruption machinery. Evidently Justice Minister Ronald Lamola didn’t get the memo.
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The Minister of Justice, Ronald Lamola, who is also a likely candidate for the deputy presidency of the ANC in December, told the National Council of Provinces on 23 August 2022 that Cabinet is not considering the establishment of a new Chapter Nine entity to prevent, combat, investigate and prosecute serious corruption cases in SA.
This development is a most unfortunate announcement which his right-thinking fellow South Africans must ask him to retract and rethink. More of the same and throwing money at the manifest problems in the current system simply won’t work. Here’s why:
The Constitutional Court has ordered Parliament, in a matter in which its findings are binding on government, to put in place effective and efficient anti-corruption machinery of state that is adequately independent to enable it to counter corruption. That order has not been properly implemented, so much so that the National Prosecuting Authority (NPA) leadership estimates that it has to face a backlog of over 10 years of work on corruption.
And the Chief Justice has let it be known that an army of prosecutors is needed to process his recommendations in the State Capture Commission report. Quite obviously those prosecutors will need to be of a calibre that is able to take on the seasoned silks the corrupt will brief. Such talent does not grow on trees and will not be available to the limping NPA for years.
In terms of the Constitution, Parliament exercises oversight over the executive of which Lamola is a member and it has the power to initiate legislation without any help from the Cabinet.
The National Executive Committee of the ANC, its highest decision-making body between conferences, has instructed the Cabinet, in which Lamola serves, to establish as a matter of urgency a new, permanent, stand-alone specialised anti-corruption entity that is able to function without fear, favour or prejudice in the anti-corruption field.
This resolution was passed as long ago as August 2020. It has not been acted on by Cabinet and the NEC has apparently not followed up with Cabinet and other structures in which the work required to give effect to the NEC resolution has to be done.
A year after the NEC so resolved, Accountability Now sent a memorandum, with executive summary and draft legislation, including a constitutional amendment, to the executive, the legislature and to the NPA. The NPA blandly acknowledged receipt as did the Presidency by way of an automated response. The Department of Justice has offered no response at all until the minister spoke in the Ncop on 23 August.
On the other hand, Parliament has shown appreciation for the efforts of Accountability Now. In June 2022 its Constitutional Review Committee unanimously resolved to invite Accountability Now to make a comprehensive presentation to it in relation to the proposed Chapter Nine Integrity Commission (Ch9IC) which is regarded as the best-practice means of implementing the court orders and judgments of the Constitutional Court issued in 2011 and 2014. The presentation will be made shortly.
It is plain to any objective observer that the corruption-countering capacity of the state is gutted, hollowed out and infested with saboteurs whose function it is to ensure that no one involved in State Capture ever wears orange overalls.
The purported implementation of the court orders has not worked and Parliament is now obliged (there is really no choice in the matter) to make the reasonable decision of a reasonable decision-maker in the circumstances that currently prevail in SA.
These are the circumstances as set out in the reports of the Zondo, Nugent, Mpati, and Moloi Commissions and in the reports/work of the SIU. The SIU has no role in the criminal justice administration. Currently, investigation of corruption for the purpose of criminal prosecution is exclusively the work of the Hawks. The NPA is required to prosecute in those investigations in which it considers it has a reasonable prospect of securing convictions.
The Investigating Directorate of the NPA is a legal and constitutional anomaly. Brought into being by presidential proclamation in 2019, it seeks to plug the gaps in the standard of service delivered by the Hawks.
The ID is neither permanent (secure in tenure of office) nor independent (it serves at the pleasure of the president). Its first leader, Hermione Cronjé, clashed with top management of the NPA and was asked to leave, which she did.
Her successor, Andrea Johnson, is unable to answer a simple query regarding the status of a complaint against Bheki Cele, who was found to be “dishonest and incompetent” by the Moloi inquiry on which Anthea Platt and Justice Mbuyiseli Madlanga served.
Johnson has failed to honour not one, but two deadlines for a reply that she imposed on herself. The fact that the Hawks have to answer to Minister Cele tells you all you need to know about their structural and operational independence.
The law as passed by Parliament reserves investigation of corruption to the Hawks. The NPA has no business doing investigative work. The ID is not only ineffective, it is also unconstitutional.
Minister Lamola may also have missed the work being done by the Defend Our Democracy campaign in this sphere. It has thrown its not inconsiderable weight behind the Accountability Now advocacy of a Ch9IC as a best practice solution to the challenges of corruption of a serious nature.
The organisations aligned to DOD have been asked to support the work of Accountability Now aimed at securing the reform of the criminal justice administration to render it more effective and efficient in its countering of the corrupt.
The submission that Accountability Now will shortly make to the Constitutional Review Committee of the National Assembly is all but complete; a draft is on its website.
The minister is respectfully urged to peruse and consider it and to respond to it and to the NEC resolution mentioned above. He should know that both the DA and the IFP support the notion of a Ch9IC. It is likely that the smaller constitutionally aligned parties will do likewise out of their respect for the binding nature of the court findings in the Glenister litigation.
While the government remains in default of properly implementing the decisions of the Constitutional Court as regards the criteria by which SA’s anti-corruption machinery must be designed and measured, it is vulnerable to an application to the Constitutional Court to enforce proper compliance with the “loud and clear” criteria it has set.
Throwing money at the dysfunctional NPA and Hawks is not a solution to the problem. The capacity of both to see off the expert defences that will be advocated by senior counsel seasoned in representing allegedly corrupt operatives is simply not in existence and won’t be for many a long year. The NPA lacks the firepower, gravitas and experience to do so. Due to its hollowed-out status, it is incapable of recruiting the expertise it requires. The same considerations apply to the Hawks.
The proposals made by Accountability Now put flesh on the bones of the ideas that inform the urgent resolution of the NEC of the ANC. Parliamentary legal drafting staff are already working on a private members’ bill which will see the DA’s version published of its proposed solution to the structural and operational problems of countering corruption.
It is not a propitious time for the executive to close its eyes to the reforms needed. The Financial Action Task Team of the OECD is breathing down the necks of those in government in SA and has threatened a greylisting which will have disastrous economic consequences for job creation and poverty alleviation.
Corruption and the desire to enjoy the fruits of corruption with impunity informed the attempted insurrection in July 2021. The last thing SA needs now is a repeat of that fiasco.
Minister Lamola, please engage with the ideas put forward by Accountability Now. Did you not get the memo last August? DM