The response of President Cyril Ramaphosa, tweeting from Brazil, regarding the revelations made public by KwaZulu-Natal police commissioner Nhlanhla Mkhwanazi, was instructive.

Ramaphosa hastened to invoke the rule of law. If only the rule of law had been respected and upheld by the ANC government in 2011 when the Constitutional Court ordered parliament to cure the constitutional defects in the original legislation creating the Hawks, which it declared “invalid to the extent that it fails to secure an adequate degree of independence for the [Hawks]”.

To enjoy adequate independence the body dealing with corruption in SA ought to be one “outside executive control to deal effectively with corruption” as was explained in paragraph 200 of the joint majority judgment in the matter, now known as “Glenister Two”. The characteristics of the body required by the court include specialisation, training for expertise in anti-corruption work, independence in structure and operations, guaranteed resources and secure tenure of office. These have become known as the Stirs criteria. They are all currently conspicuously absent.

The existing criminal justice administration in SA has Hawks investigating and the National Prosecuting Authority prosecuting the corrupt. Their respective structures and operations, including the new Investigating Directorate Against Corruption, do not measure up properly to any of the single agency Stirs criteria, as set by the court in terms that bind government.

Had the body envisaged by the court been established in compliance with the court order quoted above, there would have been no ministerial involvement, no shuffling of dockets and no media conference last Sunday complaining of ministerial interference in the anti-corruption efforts of the SA Police Service. The body outside executive control would have been reporting directly to parliament regarding the startlingly irregular relationships complained of by Mkhwanazi. The minister would have had no role to play, legally speaking, in the entire drama.

It is now appropriate to invoke the rule of law by supporting and accelerating the bills pending in parliament for the establishment and enablement of a new Chapter Nine anticorruption commission. It is not a moment too soon to do so. The bills comply with the standards set by the court. The nonbinding suggestions of the National Anti-Corruption Advisory Council made thus far miss the constitutionally compliant mark by a country mile.

A commission of inquiry is not indicated.

Paul Hoffman
Director, Accountability Now