Opinionista • Paul Hoffman • 18 November 2019
We don’t often see the activities of three arms of government on the same page at the same time. This felicitous alignment is taking place in relation to the combatting of serious corruption – and it is not a moment too soon.
For the judiciary, Chief Justice Mogoeng Mogoeng, in his public utterances has long been outspoken about the need to deal with the scourge of corruption, describing it trenchantly:
“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.”
The expressed willingness of President Cyril Ramaphosa to consider the establishment of a new Chapter Nine Integrity Commission has been supplemented in recent days by his Minister of Justice, Ronald Lamola, who observed that professionals – business and political operators – are responsible for state capture. He went on to remark:
“Based on evidence before the Commission of Inquiry into State Capture, it is clear that politicians could not have done it on their own. All South Africans have a role to play in ensuring that it never happens again because, if it did, it would not only be the government or state-owned enterprises such as SAA which would collapse, but all of us are going to collapse.”
The minister’s words echo the oft-quoted finding of the Constitutional Court in the seminal “Glenister II” case:
“…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.”
On the legislature’s side, it is reported that Dikeledi Mahlangu, a member of the National Council of Provinces, was heard to point out during a debate on appropriations that:
“It is frustrating when a municipality is taking the municipal infrastructure grant to pay salaries. You were given resources to spend on the departments and those commitments were made to the public. The only thing we are lacking is consequence management.”
Indeed. The problem that built up during “the wasted Zuma years” is that the corruption-busting capacity of the state has been fragmented and clogged with personnel in the Hawks (investigations) and the National Prosecution Authority (NPA) who are either unable or unwilling to do the heavy lifting required to prevent, combat, investigate and prosecute serious forms of corruption.
The former, single-agency approach of the Scorpions was deliberately broken down into the separation of functions between the Hawks and prosecution service.
The Hawks were placed firmly under executive control and the NPA was mercilessly undermined by the Zuma administration. The Hawks are neither structurally nor operationally equipped to investigate grand corruption properly and the prospects of the NPA doing the necessary complex prosecutions soon are “bleak” in the opinion of the new head of the NPA, Shamila Batohi. The Hawks are under executive control and report to the Minister of Police, while the Minister of Justice has “final responsibility” for the NPA.
It is noteworthy that reporting lines of all Chapter 9 Institutions are to the legislature and that the executive is only involved in appointment and dis-appointment of key personnel. There is no executive control over Chapter Nine Institutions.
It is plain that urgent bypass surgery is required to enable the state to fulfil its international treaty obligations properly and to discharge its duty to the people to “respect, protect, promote and fulfil” their human rights by creating and maintaining anti-corruption machinery of state that is up to the task at hand – in short, there must be proper consequence for management, both in respect of malfeasance and misfeasance involving public funds, via efficient and effective investigation and prosecution of wrongdoing.
The current “multi-agency” approach doesn’t work and hasn’t for years. It is one in which the Special Investigating Unit does investigative work on serious corruption which the President (executive control) proclaims it must do. The Hawks have overall responsibility in respect of investigating “priority crimes” including corruption and many others. The Anti-Corruption Task Team (an unlegislated administrative body) cherry-picks cases involving more than R5-million, but never takes them to trial other than by way of plea bargain; while the new Investigative Directorate of the NPA, of dubious constitutional pedigree, does, well, nothing discernible … yet.
The single-agency approach embodied by the Scorpions did work, save that the Scorpions were, as a creature of an ordinary statute, easily closed down when they began to breathe down the necks of too many prominent politicians and their associates in business and the professions.
Ever since Glenister II, the law has been clear as regards the attributes of the anti-corruption machinery of state: a specialised body, dedicated to confronting the corrupt, made up of well-trained operatives who enjoy secure tenure of office, are properly resourced in guaranteed fashion and, most importantly, are independent of political influence and interference both by the executive and those involved in corruption. These are known as the Stirs criteria – for specialised, trained, independent, resourced and secure.
The best-practice means of achieving that which the court requires, in binding fashion, is the establishment of a Chapter Nine Integrity Commission, or Ch9IC, to investigate and prosecute the seriously corrupt.
The decision of a reasonable decision-maker regarding this best practice must eschew the multi-agency approach, not only because it hasn’t worked, but also because it is too expensive for our beleaguered fiscus to afford.
Arguments in favour of a Ch9IC may be summed up as:
* The Stirs criteria are a given because that is how section 165(5) of the Constitution and Glenister II affect the state when it seeks to make a reasonable decision of a reasonable decision maker in the circumstances applicable when reforming the limping and semi-captured criminal justice administration.
* The state of the Hawks and NPA is such that bypass surgery is required to address the serious mischief of grand corruption, so long neglected in the system as it exists at present, and, obviously, during the Zuma years.
* The talent is available (SIU, selected NPA staff, PSC, ex-Scorpions and private sector) to populate the structure needed and to operate it in a STIRS compliant fashion, and
* Security of tenure (the last S in Stirs) is best accomplished by housing the unit in Chapter Nine so that constitutionally guaranteed independence (as set out in section 181 of the Constitution) is in place and a special majority is required to close the unit down, a possible scenario after the CR presidency ends. (When that occurs and by whom he is succeeded is anyone’s guess; one thing is for sure – anti-corruption policy strategy does not have prospects of more propitious circumstances for sensible reform of the strategy than now, as illustrated by the recent utterances of Lamola and Mahlangu.)
It is possible to effect the changes needed with the minimum of disruption. The Hawks could remain in place to deal with other priority crimes; the SIU could be disbanded with its personnel re-assigned either to the Ch9IC or to the Hawks. The NPA, relieved of a task it is currently ill-equipped to carry out, can concentrate on rebuilding and on prosecuting common law crimes such as murder, rape and other gender-based violence.
The necessary draft legislation and constitutional amendment await the scrutiny of the legislature and the executive. The offering of Accountability Now is on the “Integrity Commission” page of its website, in among the various forms the advocacy of a Ch9IC has taken over the years since the judgment in Glenister II was handed down by brave justices at a time when Zuma was at the height of his powers.
The establishment of a Ch9IC will enable the recovery of the loot of state capture. It will restore business confidence, establish trust in the economic future of the country, attract new investment and thereby kick-start the economy so that much-needed jobs are created for the millions of work-seekers currently idle and roaming the streets.
The bypass surgery is urgently required, lest the ministerial prediction of state (heart) failure comes to pass. Now is a good time to announce the decision to establish the Ch9IC. DM
Paul Hoffman SC is a director of Accountability Now.