By Paul Hoffman

In many countries around the world there is no shortage of laws against corruption. The challenge is to create a governance framework that is itself corruption-resilient, so the laws can be enforced efficiently and effectively by personnel of impeccable integrity acting without fear, favour, or prejudice. What looks good on paper does not always work in practice, often because the wrong people find their way into positions of responsibility in the criminal justice system and succumb to interference or influence by the corrupt, whether in government or not.
Now that the work of Integrity Initiatives International (III) is reaching the stage at which a draft treaty that establishes and enables an International Anti-Corruption Court (IACCourt) is to be circulated for consideration and acceptance, the doctrine of complementarity, on which the new court is to be based, comes into sharp focus. This is especially so among political leaders of countries that jealously guard their sovereignty and would prefer to avoid having to turn to the IACCourt seeking remedies against the corrupt, both in terms of civil and criminal law.
For countries to avoid turning to an international court, it is necessary that their domestic governance frameworks are up to the task of dealing with corruption itself, whenever and wherever it occurs. The characteristics of a body specialising in anti- corruption work in a functioning constitutional democracy came up for consideration in the Glenister trilogy of cases in South Africa’s Constitutional Court in 2010-11. These cases are discussed by the lawyers involved in them in an e-book called Under the Swinging Arch, which is freely available for download by Googling its title.

[In Hugh Glenister vs President of the Republic of South Africa and others, “the Constitutional Court of South Africa declared legislation which disbanded and replaced an anti-corruption body constitutionally invalid. The applicant, South African businessman Hugh Glenister, successfully argued that the South African Constitution imposed an obligation on the state to establish and maintain an independent anti-corruption body, and that a recently formed body lacked sufficient independence”. – Human Rights Law Centre, 2011]

The three cases challenged the adequacy and constitutionality of reforms to South Africa’s criminal justice administration that were brought in at the beginning of Jacob Zuma’s first presidency in 2009.

The court’s reasoning in the litigation was based on international treaty obligations undertaken by the South African state at the United Nations, African Union, OECD, and SADC levels and on the justiciable Bill of Rights that is Chapter Two of the country’s constitution. Accordingly, this reasoning is of use in any jurisdiction where an independent and impartial judiciary can consider and adopt the reasoning in the Glenister litigation. In a sense,
the Glenister trilogy is a gift to any public-interest litigant in any constitutional democracy that has a justiciable Bill of Rights.

The gist of the point Glenister raised in respect of South Africa’s international treaty obligations was simply that undertakings solemnly given to establish and maintain independent anti-corruption machinery of state ought to be respected and implemented. The court found that these obligations can be relied on by a public-interest litigant who considers that implementation of the relevant international obligations is lacking.

The rationale for the court’s reliance on the Bill of Rights was based on a provision that obliges the state to respect, protect, promote, and fulfil the rights guaranteed to all. However, the court reasoned, these obligations cannot be performed in a state where the corrupt are looting the public purse and undermining the tenets of good governance. Reaching deep into the heart of the South African Constitution, the court concluded that a body outside executive control is the appropriate vehicle for dealing with corruption. Accordingly, it was unconstitutional and invalid to design an anti-corruption body under the control of the executive branch of government.

The criteria by which such a body must be judged are spelled out clearly in paragraph [166] in the judgment of the majority of the court in Glenister Two [appendix two in Under the Swinging Arch]. They are based on OECD research, made available to the court during argument, and on the constitutional requirement that public administration in South Africa should make effective, efficient, and economic use of resources. Any anti-corruption body that aspires to comply with the Glenister criteria must be designed to be:
• Specialised: A full-time focus on anti-corruption work to the exclusion of all else.
• Trained: To match the considerable forensic firepower of the corrupt. The FBI in the United States and Scotland Yard in the United Kingdom offer training of this kind.
• Independent: Free of political influence, control, and interference.
• Resourced in a guaranteed fashion: There is always funding available to it.
• Secure tenure of office: To remove the fear of being closed summarily, a factor that can, and does, inhibit the activities of many anti-corruption bodies.
These criteria have become known as the STIRS criteria.

In appendices to Under the Swinging Arch, suggested draft legislative instruments to establish and enable a STIRS-compliant body are set out, and are the basis for two private members’ Bills currently pending in the South African parliament. These Bills aim to comply with the Glenister rulings and set a reporting line directly to the country’s
multi-party parliament.

The South African Constitution provides for various “Chapter Nine Institutions” to support constitutional democracy. These bodies all report to parliament and are accorded constitutionally entrenched independence and protections under the provisions of chapter nine of the Constitution. Chapter nine is accordingly an appropriate “home” for an anti-corruption body outside the control of the executive.

How personnel are appointed to work in an anti-corruption body like this is vital to its independence, requiring a system that sifts applicants carefully, tests their integrity, and verifies their probity. That system should also be in the hands of impartial and independent people who have a good grasp of the delicacy and centrality of finding the right personnel.

In Glenister Two, the court drew attention to the dire consequences of not having STIRS- compliant anti-corruption machinery of state. The majority judgment of Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron found that: “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote, and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And, in turn, the stability and security of society is put at risk.”

No more need be said to justify the fashioning of STIRS-compliant systems of governance for dealing with corruption worldwide.

Read the full special edition here: file:///C:/Users/jessi/Downloads/Africa_in_Fact_IACCourt_Special_Edition.pdf