A statutory, anti-corruption body of the kind envisaged by the president cannot enjoy the legally required security of tenure of office
12 February 2021 – 15:16 https://spkt.io/e/1552879
While President Cyril Ramaphosa is to be congratulated on the breadth and scope of his state of the nation address (Sona), and for concentrating on the burning issues of the day, he has unfortunately stumbled at the fence marked “corruption” with these exact words:
“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to parliament.”
The president is being poorly advised by those who appear not to understand (or choose to ignore) the thrust of the findings in the Glenister litigation concerning the inadequacy of the Hawks.
A statutory body of the kind envisaged in the Sona cannot enjoy the legally required security of tenure of office. Excellent statutory bodies can be, and indeed are, disbanded at the instance of a rogue executive supported by a meek, simple majority in parliament. This fate befell the Scorpions when they were lamentably removed from the statute book the moment Jacob Zuma occupied the presidential office at Luthuli House.
Avoiding the Scorpions’ sad fate is possible via the establishment of a new Chapter 9 institution that answers to parliament. Unfortunately, the body envisaged in the Sona is vulnerable to the same fate as the Scorpions, while Chapter 9 institutions cannot be terminated by a simple majority and are accordingly both operationally and structurally independent in much more than name.
The envisaged “independent statutory anti-corruption body” will not pass constitutional muster. An urgent rethink is indicated. The August 2020 resolution of the ANC national executive committee presents a better starting point for compliance with the binding findings in the Glenister litigation.
Paul Hoffman, SC