Investigating Directorate Against Corruption does not cut the constitutional mustard

by | Jun 28, 2024 | Chapter 9, General | 0 comments

The opinion piece by Lauren Kohn and Theunis Roux, “Embracing the IDAC: A critical step in South Africa’s fight against corruption” (Mail & Guardian, 14 to 20 June 2024), requires a response both on the law and the facts.

The law is quite simple: the anti-corruption machinery of the state, among other attributes, is required to be independent of executive interference and influence. The constitutional court so held in Glenister  II and reinforced its findings in Glenister III when the then chief justice opened the majority judgment with the phrase “[T]he [anti-corruption] entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.” (The Sonke Gender Justice case is not about any anti-corruption entity; it is about the role of the inspecting judge of prisons.)

The entire judiciary is required to be independent and impartial in terms of section 165(2) of the Constitution. The independence requirement is not a “nice to have” to which to aspire incrementally; it is a binding requirement of the law. Government is bound by the Glenister findings but has behaved as if it is not so bound by enacting the Investigating Directorate Against Corruption (IDAC) bill.

The core mandate of the Hawks is to investigate “priority crimes”, which include corruption; that of the National Prosecuting Authority (NPA) is to institute criminal proceedings. Both mandates were previously the task of the Scorpions. The new IDAC Act now gives limited investigative powers to the NPA due to the obvious and sustained failure of the South African Police Service (of which the Hawks are a part) to get to grips with serious corruption and organised crime.

The NPA has been gutted by state capture and has a putrid record on prosecuting the corrupt. This failure is due in large part to the presence of what its leadership refers to as “saboteurs” in its own ranks. The NPA, like the police service, is not an independent body in any way, shape or form. Its policies must be concurred in by the minister of justice who has “final responsibility over” the NPA in terms of section 179 of the Constitution.

The NPA is run as a programme in the department of justice and its accounting officer is the director general of justice. These facts, taken cumulatively, are not the stuff of which independence is made.

The requirements of “efficiency and effectiveness” are drawn from the provisions of section 195(1)(b) of the Constitution, which sets out details of the values and principles applicable to the public administration of which the police service and the NPA are components.

Before the advent of the government of national unity (GNU), this section has been a dead letter — sunk by a horde of deployed cadres of the national democratic revolution with no conception of what the Constitution requires of public servants and indeed those employed in public enterprises. The GNU should correct this sad situation.

The facts are also not complicated: the state has, since the demise of the Scorpions in 2009, proved itself incapable of countering the culture of corruption with impunity which took root when South Africa was “Zuptarised” during Jacob Zuma’s presidency and which continues.

The legal structure of the new IDAC is indistinguishable in law from that of the Scorpions, meaning that it is equally vulnerable to summary closure because it is the creature of an ordinary statute. This feature alone, on the “once bitten, twice shy” principle of self-preservation, will discourage those with the necessary skills and experience from joining the IDAC to help recover the loot, which is estimated to be between one and two trillion rand.

These facts are also common cause: in 2019 the Inkatha Freedom Party (now a GNU partner) called on the government to establish a new anti-corruption entity as a chapter nine institution. The call fell on deaf ears. In August 2020, the ANC national executive committee instructed the cabinet to establish a stand-alone, independent, permanent and specialised entity to counter corruption and organised crime. The cabinet did not do so in that IDAC is not stand-alone, independent or any more permanent than the Scorpions were.

In 2022 the Democratic Alliance (DA) embraced the chapter nine institution route and in 2024 gave official notice of its intention to move private member’s bills to achieve this end within 100 days of the commencement of the seventh parliament. Most of the small parties in parliament support the chapter nine solution to the endemic and systemic serious corruption problems of South Africa.

The DA’s bills will be the acid test of the longevity of the government of national unity. If they are supported by the ANC, as they must be to achieve the necessary two-thirds majority vote, the GNU will thrive, if they are not, it will probably collapse.

No task facing the unity government is as urgent as getting to grips with corruption. New investment, business confidence and jobs, not to mention proper service delivery by the state in all spheres, are dependent upon ending the reign of the corrupt.

Your readers may wish to google “Under the Swinging Arch” to read its Appendix Six from page 295 on the topic of the long-overdue establishment of the much-needed chapter nine entity the DA seeks.

The IDAC is neither permanent nor independent, it is manifestly not a constitutionally compliant body and, if the DA bills are rejected by the ANC, the IDAC will have to be impugned in court in public interest litigation.

Paul Hoffman SC is a director at the Institute for Accountability in Southern Africa.

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