The Glenister Case: what next? It is admirable that the Sunday Times has published varied views on what is now becoming known as the ‘Glenister Case’ – a David and Goliath campaign against legislation which Hugh Glenister considered unconstitutional. After a long struggle in three different courts it was accepted that he was right when he took the case, uniquely so, to the Constitutional Court for the second time.
Last week Mandla Seleoane commented on the two previous reactions from Professors Ziyad Motala and Kader Asmal, noting that in academic debate “it is hard to find a person you agree with completely”.
In the Glenister case, academic debate and opinion may be useful, but it is now certainly advisable to encourage civil society to voice democratic opinions as to what the ordinary people would like the serving government to do to comply with the Court’s finding, as it must in our new constitutional order in which parliament is no longer sovereign.
After what must have been much deliberation, independence was the Court’s core focus issue, both as regards the international treaty requirements and the actual freedom of the Hawks operatives to perform without fear, favour or prejudice.
From a practical perspective the reference in the majority judgment to the Hawks operatives having to fear some form of career sanction, for ‘upsetting’ someone, somewhere in an undefined organizational system, should be of grave concern to all South Africans, and a serious indictment of all leaders, political and others who, after seventeen years of democracy, should be using every opportunity to build our constitutional democracy, not undermine it through intimidation.
Structuring effective organizations is not difficult. Organization is the systematic planning of jobs in relation to one another in a decision system, to create a living social organism empowered to perform its mandate and to react to relevant operational circumstances.
It is internationally recognised that an independent corruption fighting unit is a necessary element of any successful campaign to root out corruption, one supported by an independent judiciary and a functional criminal justice administration, that respects and implements the sentences of the independent courts. A tried and tested ‘blueprint’ of the structural requirements of independence exists.
A critical success requirement for corruption busting, is the political will to fight for it.
The manner in which the executive and legislature respond to the requirements of majority judgment in Glenister’s case could see the start of the development of this political will, and a civil society groundswell of demand and vigilance could see that the right steps are taken to cure the cancer of corruption now rampant in South Africa.
Given that there are existing structural blue-prints, and civil society is entitled to a serving government that is committed to fighting corruption, the focus of creating an independent anti-corruption strategy must then shift to defining who are ‘fit and proper’ individuals to drive it. These individuals must be empowered by the law and the Constitution to operate within a dedicated unit that is supported by a broader organisational system that will be free of any form of influence, interference and sanction.
One of the justifications for disbanding the Directorate of Special Operations (Scorpions) was the claim that some individuals in it abused their power. The use of the word ‘power’ creates the wrong impression, as individuals are empowered through transparent and logical systems of structural (delegated) authority or alternatively personally through their professional scopes of practice.
Our Constitution recognises and requires that public servants be administered according to these sources of authority and other established management practices. Accordingly, if there was evidence of the abuse of power a far more cost effective solution would have been to identify the problems and address them – we have to ask ‘what has been the cost of this unconstitutional exercise, and who will be held accountable for it?’
Properly structured organisations include sufficient checks and balances to ensure that problems are identified much sooner than we are accustomed to in South Africa. Perhaps the majority judgement in the Glenister case has been a timely reminder that the Constitution is the highest source of empowerment and where organisations are not delivering on their requirements, an organisational audit should be the first step to take.
The direct and indirect costs to South Africa of incorrect structures and appointments, is huge. The Scorpions were disbanded, the Hawks were created to replace them, but they do not meet the Constitutional requirements, and must be restructured – it is now imperative to work towards correctly implementing the judgment without wasting further time and resources both human and financial.
Professor Kader Asmal has 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), 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 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.
The formation of an all new Anti-Corruption Commission (ACC) as a new Chapter Nine institution is the solution favoured by IFAISA. The ACC will have to be led by a judge or retired judge and its staff complement will have to be imbued with the skills, experience and sapiential authority, or clout, that enables them to remain at least one step ahead of the organised, well resourced, politically connected and innovative criminals who are involved in corrupt activities, especially those in high places.
The Constitutional amendment and enabling legislation for the ACC will have to be meticulously drafted to ensure accountability to Parliament (not the Executive), transparency and independence for the new corruption busters. It is only with these features that the ACC will be responsive to the need for ordinary people to be free of the debilitating effects of rampant corruption.
Political corruption is nothing more than theft from the poor. The ability to fight corruption without fear, favour or prejudice, in much the same way as judges dispense justice, has to be legislatively and structurally ensured. This entails that institutional, financial and personal independence must be built into the laws that govern the effective and efficient replacement of the dissolved Scorpions.
The proposed ACC will have to enjoy independence akin to that of the judiciary to operate properly. As with pregnancy, it is impossible to be “a little bit” independent in matters of this nature. The ACC ought to have powers of investigation and prosecution. The methodology of the Scorpions was so successful as to warrant emulation, without the “law unto themselves” features that led to the demise of the Scorpions. The talent exists within the NPA and the Hawks, it simply has to be appropriately relocated in the ACC. All ACC staff will have to swear sole allegiance to the law and the Constitution.
The Hawks can be retained within SAPS to attend to a priority crimes mandate that expressly excludes combating corruption. This amendment is probably all that is needed to enable the Hawks to continue with the good work they do.
Corruption fighting will become the sole preserve of the ACC – its specialised and focused efforts can best conquer the scourge of corruption. IFAISA is ready and willing to assist in debating and preparing the changes that the Constitutional Court requires, in a constitutionally compliant and suitably swift manner. Any half baked attempt to satisfy the prescriptions of the judgment will surely be met with a further constitutional challenge, if not by opposition political parties, then by the doughty Mr Glenister. The judgment he won has to be respected in the interests of conquering corruption and promoting our constitutional democracy in which the final word on the meaning of the Constitution is that of the majority of the Constitutional Court.
Institute for Accountability in Southern Africa