16 October 2022 – 19:07
While it is good news that the justice minister is considering reform of the criminal justice administration aimed at better capacitating it to deal with corruption, it would be a terrible mistake to locate the envisaged new entity in the National Prosecuting Authority (NPA).
The NPA remains hollowed out, gutted and wrecked by malicious deployment of cadres whose main task it is to ensure kleptocrats and state capturers never see the inside of a courtroom, let alone a prison cell. It will take years to correct the deficiencies; these are years we do not have available in our likely-to-be greylisted country.
We are already saddled with the job-killing downgraded “investment status” determined by the ratings agencies. Poverty, inequality and joblessness will persist while corruption with impunity remains the order of the day in SA. Greylisting will make matters worse for everybody, not just investors.
The justice minister has “final responsibility” over the NPA. Its accounting officer is the director-general of justice. No national director of public prosecutions has seen out their term of office in SA. The NPA is accountable to the executive. The Scorpions were disbanded because they did not enjoy secure tenure of office.
These features all militate against achieving the type of independence that is adequate for countering corruption. They scream “no!” to locating the envisaged new body in the NPA. The executive is littered with people who should be charged for their involvement in corrupt activities but are not so charged.
A constitutionally compliant anti-corruption entity should report to parliament, (as promised by the president) not the executive. Its leadership should be appointed according to objective criteria, not party loyalty, and should enjoy secure tenure of office.
From a proper human resource management perspective it will be impossible to attract personnel with the sort of skills and experience that are required to get on top of corruption if the new entity is located within the NPA as currently configured.
The cabinet should look again at the proposals of Accountability Now — they represent the best practice way forward toward compliance with the binding criteria laid down in the Glenister litigation and still not properly implemented by successive administrations. Options are limited by the need to comply with the court orders and rulings that require an entity that is specialised, trained, independent, fully resourced and secure in tenure of office.
If constitutionally compliant steps are not taken to effect reforms congruent with the court orders, litigation looms. If, on the other hand, a commitment to establish a chapter nine body is made now, greylisting may be averted and litigation avoided. Best of all, corruption with impunity will end.
Paul Hoffman, SC
Director, Accountability Now