On 29 August 2023 the ministry of justice unveiled the text of its answer to the ongoing scourge of serious corruption in SA. What it calls the Investigating Directorate Against Corruption (IDAC) is designed to make the existing ID obsolete by replacing it with what is called a “permanent” constitutionally compliant structure. Any new laws, indeed all laws, are required to be consistent with the Constitution. If they are not, they are liable to be struck down as invalid in court.

At this stage it is not clear whether the IDAC bill enjoys official certification as constitutionally compliant. No reference to certification is included in the media release which accompanies the bill.

In order to obtain clarity on this vital aspect, an enquiry in the following terms has been directed to the Office of the Chief State Law Advisor on 5 September 2023 by Accountability Now:

“A bill emanating from the national cabinet (via the department of justice) and purporting to introduce an Investigating Directorate Against Corruption within the NPA was apparently tabled in Parliament last week. https://www.justice.gov.za/m_statements/mst2023.html

We write to enquire whether the said bill has been certified as constitutionally compliant by your office in terms of the obligations of the Chief State Law Advisor as they relate to the introduction of new legislation?

If so why?

If not, why not?

We respectfully submit that if the bill has not been so certified, it ought not to be for want of compliance with the criteria laid down in binding terms by the Constitutional Court in the decision of its majority on 17 March 2011 in “Glenister 2”.

The Honourable Minister of Justice, Ronald Lamola, has defended the constitutionality of the bill in his media release announcing the bill in which he stoutly, but misguidedly, insists that the STIRS criteria set in the “Glenister” case have been met. He has tried, unsuccessfully in our respectful view, to justify his stance in an interview he gave Chris Barron of the Sunday Times published last Sunday. https://www.timeslive.co.za/sunday-times/opinion-and-analysis/2023-09-03-qa-with-justice-minister-ronald-lamola-on-npa-amendment-bill/

We contend that the minister has misconstrued the applicable judicial precedent that is binding on cabinet. We respectfully suggest that the correct type of reform is foreshadowed in our submission made to parliament on 17 March 2023 which you can review here https://accountabilitynow.org.za/submission-to-the-constitutional-review-committee/.

The private members bills of the shadow minister of justice, The Honourable Glynnis Breytenbach, which seek to establish a new Chapter Nine Anti-Corruption Commission, are also constitutionally compliant, unlike the IDAC bill.

As regards the minister’s interview, we respectfully point out that:

Before 29 August, cabinet’s plans for reforming the anti-corruption capacity of the state were shrouded in mystery. Now the IDAC bill has been published and justice minister Lamola has explained it to Chris Barron in his Q&A Sunday Times column.

The honourable minister projects magical attributes on the use of the word “permanent” in the bill. IDAC will not be permanent. It will, if it ever sees the light of day, be structurally indistinguishable from the Scorpions – an NPA unit created by an ordinary statute that can be closed via a 50% plus one vote in parliament. Its “permanence” is all smoke and mirrors.

The NPA itself does not, despite its unheard pleas, enjoy independence: it is run as a programme of the department of justice with the director general of justice as its accounting officer. Policy is determined with the concurrence of the minister and he “must exercise final responsibility over the prosecuting authority” in the words of section 179 of the Constitution. These features are not the stuff of which independence is made. The minister seeks to wish them away in his Barron interview.

IDAC’s tenure cannot be secure when a simple majority in parliament will see its demise; that is exactly what became of the Scorpions in a legally indistinguishable way.

Few, if any, badly needed specialist prosecutors worth their salt will sign up for IDAC for fear of being sidelined like the Scorpions. Without guaranteed resourcing and suitable training, IDAC is doomed to fail. If the IDAC bill is made law, it will not pass constitutional muster for want of proper compliance with the applicable Glenister 2 criteria.

The minister is plain wrong to insist, as he does, that the IDAC bill is constitutionally compliant. It is not – by a country mile.

We look forward to hearing your justification for the status of the certification of the bill by your office.”

This still unanswered enquiry was copied to the spokesperson of the minister of justice who should know the answers to the two questions posed by Accountability Now, and to the shadow minister of justice Glynnis Breytenbach whose views on the ID are well known to the “biznews tribe”.

https://www.biznews.com/interviews/2023/08/29/breytenbach-anti-corruption-inestigating-directorate.

A battle royal is looming if the ANC is serious about its IDAC bill. It is quite possible that the bill is a ploy on the part of a cabinet that is under considerable pressure, in the pre-election period, to show that the ANC government is not soft on corruption and indeed prepared to turn a blind eye to corrupt activities on the part of well-connected politicians, public servants, SOE employees and their cronies in business. If a ploy is in play, it can be expected that the bill will be quietly scrapped after the elections irrespective of who wins them. If SA’s luck holds, then the Breytenbach private members bills will come into their own and constitutionally complaint reforms improving the capacity of the state to prevent, combat, detect, investigate and prosecute serious corruption will be introduced.

The minister has conceded that in formulating the bill cabinet is bound by the Glenister criteria laid down by the Constitutional Court. The concession is rightly made. He also, by necessary implication, concedes that the Hawks are not up to the task of investigating cases involving serious corruption. He is right to do so.

The main binding criteria have become known by the acronym STIRS for specialised, trained, independent, properly resourced in guaranteed fashion and secure in tenure of office.

The very notion of locating IDAC within the NPA condemns it to non-compliance with all of the STIRS criteria. The NPA is plainly not an independent body. It is currently broken, saboteur infested by the admission of its own leadership, and gutted by state capture. It looks to the director general of justice for its funding and is under the “final responsibility” of the minister who must also concur in all policy for the NPA. This is not the stuff of which independence is made.

• Few, if any, properly trained specialist prosecutors, of the calibre to match the legal firepower the corrupt can and do muster when charged, will put their hands up to serve in IDAC given the sad fate of the Scorpions who were promptly closed when Jacob Zuma came to power. Their dissolution paved the way for the Zuma era heights of state capture with impunity, an impunity that continues to this day. The loot of state capture, running into trillions of rand has still not been recovered more than five years after Zuma resigned.
• The necessary independence can not possibly be achieved within NPA structures for the reasons sketched in the email to the Chief State Law Advisor, quoted above.
• There is no provision for guaranteed resources in the IDAC bill. In Hong Kong, for example, its commission against corruption receives a set percentage of the budget every year with no questions asked.
• Secure tenure of office eluded the Scorpions and brought about their demise after a simple majority in parliament voted to dissolve them in 2009. Their investigators were moved to the SAPS, where the Hawks (officially the Directorate of Priority Crime Investigation) have not risen to the occasion to clamp down on serious corruption. The operations and structure of the new IDAC are legally indistinguishable from those of the now defunct Scorpions. IDAC is vulnerable to the same fate, the minister’s reassurances notwithstanding.

It is interesting to note that the National Advisory Council Against Corruption (NACAC) has maintained a stony silence on the IDAC bill. Appointed exactly one year before the publication of the IDAC bill, NACAC was heralded in glowing terms in a media release:

“President Cyril Ramaphosa has strengthened South Africa’s fight against fraud and corruption with the appointment of members of a National Anti-Corruption Advisory Council (NACAC), which brings together representatives from civil society, including business, who will work alongside government to prevent and stamp out wrongdoing.

The Council will advise the President on matters related to fighting corruption, in line with the National Anti-Corruption Strategy 2020-2030. Among other areas of focus, the Council will advise the President on effective implementation of the anti-corruption strategy by government and civil society, including the private sector.

The Council will also provide advisory input on matters related to government’s comprehensive response to the recommendations of the Judicial Commission of Inquiry into Allegations of State Capture.”

Patriotic South Africans who respect the Constitution can only hope that NACAC will strongly condemn the IDAC bill for its lack of constitutional compliance and will take government back to the drawing board on which it has been devising compliance with the recommendations of the Zondo Commission for more than a year.

At this stage, ranged against the IDAC bill are the official opposition (punting the Breytenbach bills) the IFP (which accepted the proposals of Accountability Now in 2019). The Defend Our Democracy campaign, the Catholic Bishops Conference and the Anglican Archbishop, Thabo Makgoba,  [ see the video clip at www.accountabilitynow.org homepage ] are also in favour of the Chapter Nine solution to ongoing serious corruption. Only the national cabinet supports the IDAC bill. The NEC of the ANC asked it for something quite different back in August 2020. https://accountabilitynow.org.za/paul-hoffman-has-anc-finally-had-its-eureka-moment-on-corruption/.  That instruction has been ignored.

Business and civil society need to take a stand against the unconstitutionality of the IDAC bill.

Paul Hoffman SC is a director of Accountability Now

7 September 2023