While it is encouraging to learn from a fresh media release by the National Prosecuting Authority (NPA) that its Investigating Directorate (ID), found to have bungled the Nulane prosecution by an acting judge in the Free State, will apparently be appealing the discharge of the accused, it is fallacious to suggest — as the NPA does — that the lack of permanent status of the directorate is somehow to blame for the fiasco in the case against Gupta cronies.

Wishing for what government calls “permanent” status for the ID will only put a little lipstick on this pig. The ID exists at the pleasure of the president, who created it by proclamation as a stopgap measure to counter the ineptitude of the Hawks. Changing the ID’s precarious tenure of office to one under which it serves at the pleasure of a simple majority in parliament will not have any material effect on its efficiency and effectiveness as a corruption-fighting unit. The Scorpions were such a unit. They succumbed due to the repeal of their enabling legislation after a hard-fought battle in parliament and the courts.

Genuine permanence implies secure tenure of office of an independent anti-corruption entity. As part of the NPA, the ID is not properly independent due to the “final responsibility” of the minister of justice over the NPA, and to the fact that its accounting officer is the director-general of justice. As a “permanent” feature of the NPA, the upgraded ID will be not better off than the Scorpions were, irrespective of the number of times the word “permanent” is used in the legislation apparently, but invisibly, under consideration by cabinet.

Thus far, whether by design, neglect or inattention, government has remained delinquent in its implementation of the criteria set by the Constitutional Court for the proper constitutionally compliant functioning of our anti-corruption machinery of state. As a result, state capture has devastated the finances and moral fabric of SA. Proper implementation of the specialised, trained, independent, resourced, secure (Stirs) criteria is long overdue.

The defence advocates in Nulane are doubtless sharpening their legal eagle claws with a view to shredding the application for leave to appeal currently under preparation by the ID. It is worrying that the leadership of the ID thinks permanent status of the kind envisaged will be some sort of panacea. It will not.

Paul Hoffman

Accountability Now