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Email to the President dated 25 March 2019, concerning the establishment of an Integrity Commission under Chapter Nine of the Constitution.

Dear Mr President,
According to media reports, you have established
an Investigative Directorate (the Unit) within the
National Prosecuting Authority (NPA) to deal with
grand corruption.
We have publicly expressed our reservations about
the constitutionality of this tactic in the war on the
corrupt:
www.accountabilitynow.org.za/?s=Poplak”s&submit=Se
arch.
www.accountabilitynow.org.za/can-shamila-batohi-
revive-a-dying-npa/.
www.accountabilitynow.org.za/why-cyrils-state-
capture-squad-will-almost-certainly-fail/.
Our main concern around the constitutionality of
the Unit is that it is under executive control and
accordingly unable to exercise the type of
independence of action that the law requires in
accordance with the criteria set by the courts.
In this regard we refer you to the decisions of the
Constitutional Court in the cases generally known
as Glenister II and Glenister III. For present
purposes it is sufficient to say that for the purpose of

preventing, combating and investigating corruption,
a single unit that is “STIRS compliant” is required
by law.
This STIRS acronym refers to the qualities of the
required mechanism. It must be specialised, well
trained, independent, properly resourced and
secure in its tenure of office.
The Unit is not independent, it lacks resources and
by its nature it does not enjoy security of tenure of
office as its members will serve at executive
pleasure. The Unit’s mandate is also limited by
what the President includes and excludes from the
scope of its work. There is also no evidence of a
budget for training personnel. The only one of the
five criteria the Unit notionally satisfies is
theoretically that of specialisation, but the new
National Director of Public Prosecutions (NDPP)
has her reservations about the quality of the
prosecutors who are supposed to deal with grand
corruption: www.citypress.news24.com/News/npa-
boss-batoyi-questions-prosecutors-skills-ability-to-
deal-with-corruption-cases-20190318.
In these circumstances, the constitutionality of what
you propose is highly questionable for the reasons
set out in the preceding paragraphs.
Accordingly, given the reservations of the official
opposition and the NDPP, we respectfully suggest
that the new Unit be dissolved and that the
legislature should establish a new Chapter Nine
Institution to prevent, combat investigate and
prosecute grand corruption. You were apparently

considering such a body favourably after Narend
Singh MP raised this at question time in the
National Assembly earlier this month. You referred
to the notion as “refreshing”.
The ANC has its own integrity committee, and the
country also needs an Integrity Commission
urgently. We have long advocated the establishment
of the commission as can be seen from the
“Glenister case” page of our website
www.accountabilitynow.org.za.
Serious practical difficulties will arise if the current
plan is put into operation. As you know, the Moloi
Board of Inquiry into the fitness for office of Bheki
Cele, your minister of police, found him
“incompetent and dishonest”. It also recommended
that he be investigated for corruption. This
recommendation, which has not yet been acted on,
should form part of the work of the Unit you
propose. In similar vein, Michael Masutha, your
minister of justice, signed off on the termination of
the services of former NDPP Mxolisi Nxasana in
circumstances that amount to a corrupt activity
which has already been found to be illegal in civil
proceedings that culminated, on appeal, in the
Constitutional Court. The criminal complaint we
have lodged against him has languished in the
bowels of the criminal justice administration since
July 2015 despite being drawn to the attention of
the then Secretary General of the ANC. We resorted
to this step as the politicians implicated are
deployees of the ANC and the criminal justice
administration is dysfunctional as was pointed out
by Johnny De Lange MP during the debate on the

dissolution of the Scorpions at a time when he was
deputy minister of justice in the Mbeki government.
See: www.accountabilitynow.org.za/email-to-
gwede-mantashe/.
Accountability Now and numerous other
organizations including the Economic Freedom
Fighters and the Democratic Alliance have also all
separately complained about the criminality
manifest in the Nkandla debacle. Our complaint
dates back to 2013. No apparent progress has been
made by the criminal justice administration in any
of these matters.
An independent mechanism would be astute in
swiftly tackling these long outstanding matters.
We reserve the right to move the High Court to
declare the Unit unconstitutional, and to give the
Legislature a reasonable period of time to establish
a constitutionally compliant anti-corruption
mechanism.
An Integrity Commission of the kind which you said
you were prepared to consider would be superior by
far to the limping, unbudgeted for and under-
resourced Unit. We can only assume some of those
who have been advising you are acting under a
serious conflict of interests. The trajectory of the
ANC on the issue of grand corruption is quite clear
as appears from the Nasrec resolutions quoted by
Ferial Haffferjee in her response to calls by ANC
elders for an ethical approach to the compiling of
party lists. See:

www.dailymaverick.co.za/opinionista/2019-03-25-
dear-elders-the-anc-wont-listen-to-anyone.
An early announcement of your commitment to the
idea of an Integrity Commission will demonstrate
your genuine commitment to the rule of law and
illustrate the desire of your government to walk the
walk of its anti-corruption talk and to disengage
from executive control of the anti-corruption
machinery of state so as to enhance its structural
and operational functioning.
Moving swiftly to establish the Integrity
Commission will help restore business confidence,
save the nation from “junk status”, renew interest
in investment in the SA economy, help create jobs
and restore the badly shaken trust which the public
once placed in government. This trust has been
badly undermined by corruption and incompetence,
“load shedding” and illegal cadre deployment
during what you have correctly called the “wasted
Zuma years” and it is incumbent upon you to work
hard to restore it.
As you know, the true test of good leadership is the
ability to make unpopular decisions. The
establishment of an Integrity Commission is bound
to be unpopular with those who are involved in state
capture, grand corruption and kleptocracy. All the
more reason for establishing it.
Of high importance is that the Integrity Commission
could be capacitated and assisted to recover the
loot of state capture wherever it may be in the
world. Nothing has been done yet to do so, despite
Minister Gordhan’s estimate that the amount
involved could be as high and one and a half trillion

rand. Even if only half of this amount is recovered,
it will do a power of good to the solvency of the
country.
It is a well-established academic and scientific truth
that corruption and kleptocracy are absolute and
corrosive obstacles — anywhere in the world that
they occur — to peace, social justice, good
governance, economic development, reconstruction,
redistribution and population health and well-being.
It is now emerging that perhaps one-third (1/3) of
South African Gross Domestic Product (GDP) — in
other words over 30% of the total South African
economic “pie“ — has been wasted, stolen and
consumed by grand corruption, state capture and
kleptocratic crime in our young democratic country.
This situation has already had devastating socio-
economic impacts on our people, especially among
those who are poor. This impact will be felt for
decades to come. It is thus hard to conceive of a
more urgent and greater priority for your focused,
determined and constitutionally lawful action as our
President.
If you require further information from us, we are
happy to oblige.
Kindly acknowledge receipt of this communication,
and let us know what you plan in the light of the
submissions we have made above. Within the limits
of our capacity, we are happy to “Thuma Mina”.

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