(Notes for an address to the Cape Town Press Club on 15 May, 2012)
Hawks and Eagles are both raptors. They are birds of prey that live off the live victims of their predatory non-vegetarian appetites. Hawks are small, scarce and susceptible to poisoning. Eagles see further, fly higher and go after bigger prey than Hawks. Crowned Eagles have a specialised technique for catching monkeys, Fish Eagles enjoy dive bombing for big fish while Hawks prefer to prey on mice and the occasional rat.
“The Hawks” is the official nick-name of the Directorate of Priority Crime Investigation, a unit of SAPS, led by a Divisional Commissioner, Anwa Dramat. “The Eagles” is the unofficial nick-name of a proposed new Chapter Nine Institution to be called “The Anti-Corruption Commission” which has been suggested by the Institute for Accountability, which I represent. I am here to persuade those of you who may need persuading that Eagles are infinitely preferable to Hawks and that South Africa deserves to have them in addition to (not instead of) the Hawks.
The context in which the question: “which of these does SA deserve?” is posed is well known and need not be dwelt on now. Poverty, joblessness and inequality are the major problems SA faces. Basic education, the creation of employment opportunities and the implementation of sustainable strategies to address the disadvantages spawned by our past so as to promote the achievement of equality before the law are the critical challenges of SA today.
The biggest single enemy of all of these challenges is corruption. There is endemic and systemic corruption abroad in SA today. The amount of money lost to corruption in the last year has been estimated at R675 billion by Tendersure www.tendersure.co.za (an innovative IT solution to eliminate corruption and rigging from the Tender Procurement Process). If that sounds overly high, consider that in the Western Province alone illicit drugs valued at R13 billion have been seized by SAPS in the last year.
In the words of the Constitutional Court:
“[C]orruption 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 fraudulenceâ€¦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.”
A more emphatic and wide ranging condemnation of corruption is hard to imagine.
The Hawks were conceived in the small and red dust encrusted town of Polokwane in December 2007. Large tents were set up in the town, an armada of wabenzi and shiny 4 x 4’s arrived to fill the tents with ANC delegates and a conference resolution demanded the urgent dissolution of the Scorpions and the creation, within SAPS, of their successor, the Hawks.
When the following conference comes to town in Mangaung in December this year, delegates will want to know whether the box opposite this resolution can be ticked. Luthuli House, where the policies of the ANC are formulated, will apparently want that tick to appear.
The resolution to disband the Scorpions, the independent investigative arm of the equally independent National Prosecuting Authority, was not universally popular as they were efficient and effective in their anti-corruption work despite an inclination to over-zealous “Hollywood cop” type activity and a weakness for political manipulation on the odd occasion.
Bob Glenister, a Johannesburg businessman, campaigned relentlessly to save the Scorpions. Eventually, he failed in that mission, but he did succeed in persuading the slimmest of majorities of the Justices in the Constitutional Court to order Parliament to remedy the defects in the Hawks by September 2012. The law that created the Hawks was declared inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Hawks.
The reasons given for this decision were twofold: SA can not successfully create the culture of human rights promotion it has set its heart on in a murky sea of corruption. Secondly, SA has undertaken treaty obligations which require it to maintain an independent anti-corruption entity able to effectively counter corruption.
So, what does “sufficiently independent” mean in the context of anti-corruption state machinery? The ability to withstand political interference and influence on the operations and structures of the entity tasked with fighting corruption is the short answer. Political will to deal properly with corruption is at the core of any successful initiative to counter corruption. That political will needs to come from active and engaged citizens when it is absent in career oriented or venal politicians.
The research of the Organisation for Economic Co-operation and Development (OECD) reveals that there are five main criteria according to which the success of an anti-corruption entity can be predicted. I have reduced these to a simple acronym which I implore you to remember and repeat. STIRS is the acronym and its letters stand for Specialization, Training, Independence, Resources and Security of tenure of staff.
It ought to be obvious that anti corruption work is a full time job, not an occasional interest of those dealing with all kinds of priority crime investigation. Spreading anti-corruption work across a plethora of agencies also doesn’t work well, too many cases fall between the cracks and too much time is wasted on turf identification or worse, turf wars such as those waged between Jackie Selebi’s SAPS and Vusi Pikoli’s Scorpions. The Hawks do good work on all manner of priority crimes; they do not shine at anti-corruption work not only because of their lack of independence, shortage of clout and lowly status in the SAPS pecking order, but also because of their pre-occupation with other, possibly less contentious priority crime.
The type of training that a corruption buster needs in the information age in which a lot of corruption is intelligent, sophisticated and cyber-based is very different to spending time in the hierarchical and somewhat dated SAPS training institutions.
Independence or “sufficient independence” ought to signify the ability to operate without fear, favour or prejudice. The courts have equated this phrase with independence. It connotes without fear of the powerful, without favour to the friendly and without prejudicing the public interest. Sufficient independence implies the capacity to see off any attempt at political interference in operational activity of the corruption busters.
The guaranteed and proper resourcing of any anti-corruption agency is a sine qua non for its success. If politicians are able to turn off the water or stand on the oxygen pipes then resource scarcity can hobble anti corruption work. The experiences of the Office of the Public Protector (OPP) and the National Consumer Commission are salutary examples of this.
Security of tenure of staff implies that the way in which hiring and firing takes place has to be sufficiently circumscribed to prevent the Eagles from suffering the same fate as the Scorpions – who were in essence fired or “redeployed” en masse for doing too much to make political big wigs uncomfortable with the investigations they mounted.
The response of the Executive to the order in the Glenister case has been singularly underwhelming. A Bill, called the SAPS Amendment Bill 2012, is in the process of being considered by Parliament, which is the body ordered to take the remedial steps the Court requires. This Bill is aimed at “tweaking” the Hawks as little as possible in a misguided attempt to render them compliant with the judgment and the constitutional values that underpin it. The process is reminiscent of rearranging the deck chairs on the Titanic, after the iceberg was struck. There is very little that STIRS in the Bill, nor has the debate of the committee resulted in any positive changes. It is, in the view of many experts, unconstitutional and is therefore open to challenge if made law in its present form.
All of the public participation process input on the Bill, with only one exception, has been critical of its constitutionality and its effectiveness. Unfortunately, the ANC parliamentarians are under instructions from Luthuli House to toe the line taken by the Executive which prepared the Bill. As Ben Turok will tell you, they dare not refuse to toe the party line. The ultimate sanction is expulsion from the party and then loss of the lucrative seat in parliament follows as a matter of law.
The Eagles, on the other hand, are designed to satisfy all that STIRS in the vital field of anti-corruption endeavour on the part of the state. All chapter nine institutions are notionally independent and all are there to advance the democratic project of the new SA. It is suggested that the Eagles be led by a retired judge, that there be an Eagles office in each province, either at the seat of a High Court or at a major town if there is no High Court seat. The functions of the Eagles will be to prevent and combat corruption, to educate the public on the nature and evils of corruption and to investigate all instances of serious corruption either as a result of complaints made or at its own instance.
The budget of the Eagles will be either a fixed percentage of GDP or of the national budget for the previous year and Eagles staff will have to go mad or bad before they can be lawfully dismissed.
The Eagles will be free of executive supervision and will report directly to Parliament at least annually, or more frequently when the need arises. Their training will be modelled on worldwide best practice and their work will relate to corruption alone.
In any instance in which the prosecution service declines to prosecute on a docket presented to it by the Eagles, it will be possible for the Eagles to mount the prosecution themselves once satisfied that the reasons for so declining are not adequate justification for so doing.
With an eye on 18 September, 2012, when the court imposed deadline expires, Bob Glenister has issued a challenge to the people of Africa: to come up with the best practice suggestion for implementing the judgment he won and win a prize. A sum of R300,000 has been staked in three categories, one for universities, one for non-university teams and one for individual entrants.
The Institute for Accountability is not eligible to enter the competition. It believes that the winning entries will contain refinements of the suggestions it has already made by presenting Parliament with a draft constitutional amendment and with a draft “Eagles” bill for consideration. May the winning entries be worthy of the title “The Eagles”.
Recent developments such as the Mdluli affair, the e-tolling debacle, the welcome change of heart on the Secrecy Bill and the ever more open succession race in the ANC, all suggest that major changes are in the offing. It is the duty of all active citizens in SA to decide for themselves whether they prefer positive and constructive changes and to work toward them in the spirit of our Constitution which contains the blue print that was agreed by the overwhelming majority of the representatives of the people when the race based parliamentary sovereignty of old was replaced by constitutional democracy under the rule of law.
Whatever choices are democratically made, the future success of the country depends upon the slaying of the enemy of the people that corruption has become. Public sector corruption is no more than theft from the poor and its presence precludes the peace, progress and prosperity for which all people of goodwill long.
An effective, efficient and sufficiently independent corruption fighting entity is clearly needed. Heaven knows we all need an Anti-Corruption Commission. Nkosi sikeleli South Africa with superb Eagles.
Paul Hoffman SC
15 May 2012.