By Paul Hoffman

The end of the Scorpions marked the beginning of the State Capture project undertaken during the two Jacob Zuma presidencies. No one today seriously regards the Hawks as any part of the solution to the challenges of grand corruption.

The scourge of corruption in all its forms is an existential threat to peace, progress and prosperity in the world. Because of the effects of corruption, states fail, and funds intended for the upliftment of the poor through the achievement of equality are diverted to the corrupt.

Vast malign networks enjoy their “turn to eat”. Democracy is put in peril by those who loot the public purse. The phenomenon is worldwide – not even the Vatican is spared the corrosive effects of grand corruption.

The international arms trade accounts for about 40% of corrupt transactions at a time when ordinary citizens long for the safety and security which flow from the guns falling silent. The military/industrial complex holds sway.

Integrity Initiatives International (III) is an NGO that champions the establishment and enablement of an International Anti-Corruption Court (IACCourt) as a means of combating corruption worldwide. The need for an IACCourt is apparent from the failure or unwillingness of governments around the world to put in place machinery that is up to the task of countering the corrupt.

III observed in 2024 that:

“Grand corruption is a global problem that undermines citizens’ trust in democracy and institutions. Abuse of public power for personal gain is detrimental to society and empowers autocrats. It siphons off the finance needed to meet the Sustainable Development Goals (SDGs), respond to the climate crisis, and all other manner of global challenges.

“Several mechanisms, including the universal UN Convention against Corruption (UNCAC), are already in place, but there is a need to strengthen the enforcement of criminal laws to hold public officials, bribe payers, and money launderers accountable.

“To fill the crucial accountability gap in the global effort to fight corruption, growing coalitions of governments and civil society support the creation of an IACCourt to hold accountable corrupt public officials and private enablers when governments are unable or unwilling to enforce the mandatory crimes in the UNCAC. III is focused on promoting the IACCourt by coordinating a diverse range of civil society organisations, experts, and governments.

“Additionally, III’s Youth Leaders Network (YLN) aims to give voice to and empower youth from around the globe both within the IACCourt campaign and more broadly. The YLN is a peer-to-peer learning and support platform where members from Lebanon to Venezuela to Uganda share their success stories and challenges in fighting corruption in their communities and regions. These young leaders actively engage in identifying and addressing corruption and rely on the platform to gather support, raise awareness and feel empowered as a community.

“A growing number of governments, including Canada, Ecuador, the Netherlands, Nigeria and Moldova have publicly committed to working to create the IACCourt, while the European Parliament has issued a resolution calling for the court. The UK Labour Party is committed to championing the IACC. The work of III and the Youth Leaders Network (YLN) has significantly contributed to these developments, and they continue to promote democracy, transparency, accountability and good governance, while creating a strong sense of solidarity.”

One of the projects of III is the formulation of a draft statute for the IACCourt. A group of experts from around the world, led by Justice Richard Goldstone, a member of the original Constitutional Court in SA and now a vice chair of III, is preparing a draft which will be available for public comment in 2026.

The jurisdiction of the IACCourt will extend to countries in which the court is recognised and in which looted assets are hidden, whether or not the looters are within the jurisdiction in which the loot is found.

It will, unlike other international criminal tribunals, have an assets division in addition to the criminal division. Both divisions will be authorised to freeze, seize and return the loot they identify. The jurisdiction to do so will prove a major disincentive to those who indulge in the crime of corruption, a calculated, deceitful and secretive form of crime which, despite claims to the contrary, is not victimless.

Following the money is an effective deterrent to corrupt activity. The assets division of the IACCourt will also be authorised to resolve disputes that will inevitably arise relating to the ownership and disposition of the stolen assets. It would also be responsible for safeguarding and administering those assets.

Anti-corruption machinery shambles

In South Africa, at national level, the anti-corruption machinery of state is currently in disarray.

The Constitution makes no mention of corruption; crime in general is a topic dealt with in Section 179 of the Constitution, which creates a single National Prosecuting Authority with “the power to institute criminal proceedings on behalf of the state”.

The SA Police Service, one of the security services provided for, has the objectives set out in Section 205(3), of being “to prevent, combat and investigate crime…”.

The minister of justice has “final responsibility over” the NPA while the minister of police is “responsible for policing and must determine national policing policy” in terms of ss 179(4) and 206(1). Enabling legislation for both NPA and the police exists in the form of the NPA Act and the Police Act [Act 32 of 1998 and Act 68 of 1995, both as amended, respectively].

South Africa is a party to various anti-corruption treaties at UN, AU OECD and SADC levels. These treaties oblige the country to establish and maintain its own anti-corruption body, which must be adequately independent and appropriately resourced to combat corruption.

Scorpions

To meet obligations at the international level, the Directorate of Special Operations (or Scorpions as they were popularly known) was created. It worked so well on the investigation of political crimes in the arms deals, the Travelgate saga and in general, that it was closed down summarily in 2009.

It is now apparent that the end of the Scorpions marked the beginning of the State Capture project undertaken during the two Jacob Zuma presidencies. In their place came the Directorate of Priority Crime Investigation (or Hawks), a police unit tasked with priority crime investigations that included the investigative work previously done by the Scorpions.

The Hawks have not been a success, and no one today seriously regards them as any part of the solution to the challenges of grand corruption in South Africa.

The closure of the Scorpions was challenged for its unconstitutionality by Bob Glenister, a Johannesburg businessman who took his quest to the Constitutional Court three times between 2008 and 2014.

The upshot of the three cases is that the court has so interpreted the Constitution to mean that “our law demands a body outside executive control to deal effectively with corruption”. [Glenister Two para 200]  The court also found that the new body should be marked by certain express criteria.

The main criteria – there are others, set out in the majority judgment (Appendix Two of the free ebook, Under the Swinging Arch, paragraph 166 onwards) – have become known as the STIRS criteria. This acronym identifies:

• Specialisation in the sense of being dedicated to the issues around corruption to the exclusion of all else;
• Training for recruits to empower and enable them to match the wiles of cunning corrupt operators;
• Independence of the institution at both structural and operational levels to ensure that political influence and interference are not brought to bear on anti-corruption personnel and that they are able to function without fear, favour or prejudice;
• Resources that are adequate to the reasonable needs of the corruption-fighting functions and are guaranteed so that their non-payment cannot be used as a means of stifling their functioning and performance; and
• Secure tenure of office for all corruption-fighters so as to remove the threat of dismissal or disbandment, such as happened to former NDPP Vusi Pikoli, and the entire Scorpions unit of his NPA, which was dissolved immediately when Jacob Zuma came to power.

Had the Scorpions enjoyed the protection of Chapter Nine status under the Constitution, they would still be in existence and the whole trajectory of State Capture would have been less unfortunate for the people of South Africa. This happy state would have been due to the fact that a two-thirds majority in Parliament would have been needed to close them down had the Scorpions enjoyed Chapter Nine status.

Instead, they were a mere creature of ordinary legislation and could be dissolved with a simple majority. This in fact happened when, in the face of all parliamentary opposition and widespread public misgivings, the ANC used its simple majority to dissolve the Scorpions.

The findings in Glenister Two were confirmed resoundingly in Glenister Three paras 1 and 2 in the following words:

 “All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal. 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 the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The legislature was ordered, in Glenister Two, to pass remedial measures; it has never done so properly. The Hawks have proved to be inadequate, and the new 2024 version of the Scorpions, called the Investigating Directorate Against Corruption, is not a constitutionally compliant body.

The failure to comply properly with the binding court decisions in the Glenister litigation is the subject matter of a complaint to the Public Protector, whose investigation is ongoing. She may choose to await developments in Parliament.

The co-chair of the Justice Portfolio Committee in the National Assembly, Glynnis Breytenbach, a former prosecutor, in November 2024, introduced two private member’s Bills in Parliament to establish and enable a constitutionally compliant new body to deal with serious corruption.

Back in August 2020, the National Executive Committee of the ANC instructed Cabinet to take urgent steps to establish a body that answers to the STIRS criteria. Cabinet has, until now, ignored the instruction.

Advisory council report

Instead, the President appointed a National Anti-Corruption Advisory Council (Nacac) in August 2022, which produced an as-yet unpublished report of an interim nature last year. The report is not yet in the public domain because it is under scrutiny by public servants in the Departments of Justice and of Police. It has been publicly foreshadowed by the vice-chair of Nacac and criticised in the press.

The publication of the Breytenbach Bills has overtaken the unpublished report by Nacac and, if passed, the new laws will replace Nacac’s recommendations too. However, without the support of the ANC in Parliament, the Bills will not become law as a two-thirds majority is needed to amend the provisions of Chapter Nine of the Constitution by the creation of a new Anti-Corruption Commission.

The ANC has good reason to support the Bills with its 40% of the seats in the National Assembly. Recent polling indicates that should it decline to do so, it will be signing its political death warrant.

The voters of SA have had enough of the ANC’s 31-year quest for revolutionary hegemony. More than half of the people continue to live in, or below, relative poverty. Stunted and starving children dot the landscape in rural areas.

Service delivery in education, housing, healthcare and social services is severely challenged. SA has the highest Gini coefficient in the world. This coefficient of .63 in 2024 means that out of the 130 nations that measure economic inequality, South Africa is the most unequal, despite the constitutional promise that the state must promote human rights and the achievement of equality.

Respect for human dignity remains in short supply, notwithstanding the electoral dominance of the ANC during the first 30 years of constitutional democracy in SA.

South Africa needs to adopt the Breytenbach Bills and support the establishment of an IACCourt. DM