Only a Chapter Nine Integrity Commission can counter the corrupt

by | Jul 28, 2021 | Chapter 9, General | 0 comments

Paul Hoffman | 23 July 2021

Paul Hoffman says the five criteria of specialisation, training, independence, resourcing and security need to be applied

The jury may still be out in relation to responsibility for the riots, looting, protests and pillage that marred the run up to Nelson Mandela’s 103rd birthday. However, there can be little doubt that fear of an end to the corruption with impunity, which kleptocrats enjoy in SA, was a key motivating factor in the minds of the organisers who fomented the nefarious activities at malls and elsewhere in KZN and Gauteng.

The trail of state capture is long and twisted with the majority of the corrupt still wandering free from prosecution. What will ultimately counter corruption and bring the criminals to book? Is the establishment of a dedicated Chapter Nine Integrity Commission, to investigate and prosecute the rampant corruption in South Africa, the solution?

Since 2013, charges against ex-President Jacob Zuma, of theft and fraud in relation to the upgrade of Nkandla have been under investigation; since 2015 Zuma has faced a complaint that his decapitation of the NPA via the side-lining of then National Director of Public Prosecutions, Mxolisi Nxasana, amounts to a corrupt activity and an attempt to defeat the ends of justice; since 2017 the longstanding charges of corruption, fraud, money laundering and racketeering against him have been revived despite his long drawn out Stalingrad strategy in that matter. The matter of Zuma’s involvement in state capture was under investigation by the Office of the Public Protector until 2016 and has been ever since by the State Capture Commission.

The current incarceration of Zuma is entirely the work of the SCC and the Constitutional Court in civil proceedings. Apart from effecting the arrest and imprisonment at the last possible moment, the criminal justice administration has played no part in the dramatic events leading up to the imposition of the sentence of 15 months incarceration. Herein lies the rub.

At its 2017 conference at Nasrec, the ANC officially turned itself against the widespread corruption in its own ranks. In August 2020, its National Executive Committee passed a resolution calling for the establishment of a new corruption busting body of the kind envisaged by the Constitutional Court in the Glenister trilogy of cases. Nothing effective has been done to comply with the resolutions of the conference in 2017 and the NEC in 2020.

Instead, President Cyril Ramaphosa announced in the course of his February 2021 state of the nation address that:

“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.”

Quite apart from the fact that a statutory body won’t cut it as it will not enjoy the security of tenure of office that is required in terms of the Glenister criteria and the NEC resolution, nothing further has been heard of the advisory council since it was heralded by the president.

The unfortunate truth is that the ANC has such large patronage networks and is so infested with corruption (both pre and post Nasrec) that it remains irresolute when it comes to countering the corrupt. The covidpreneurism that manifested during 2020 is an example of the ongoing corruption in high places during the Ramaphosa administration. The task of bringing the corrupt to book, has been kicked kicked into touch again and again.

The failure of the criminal justice administration to deal with the corrupt is directly attributable to the fear that to do so would be a career limiting move. Just ask former NDPP, Vusi Pikoli who was suspended by then President Thabo Mbeki for charging Jackie Selebi, chief of police, with corruption and was dismissed by President Kgalema Motlanthe for charging Zuma with corruption. Selebi was convicted, Zuma remains on trial in a case that resumes in the KZN High Court on 10 August 2021, having been started by Pikoli in 2007.

Other examples abound: Bheki Cele was dismissed as commissioner of police after he was found to be “incompetent and dishonest”. The Moloi board of inquiry recommended that he be investigated for corruption. Nothing has been done about this recommendation. Several cabinet ministers should be in the dock for perjury (Gigaba and Dlamini, for example) and for assorted other corrupt activities. They are not. Zweli Mkhize is on gardening leave while his involvement in covidpreneurism is investigated by a body with no prosecutorial powers, the Special Investigations Unit. The scandalous arms deals, Sarafina Two, Travelgate fraudsters, the Hitachi Power Africa deal and assorted other procurement frauds as well as state capture remain largely untouched by the criminal justice administration as it limps from excuse to excuse for not being able to do its work.

In order to be efficient and effective, the anti-corruption machinery of state that the NEC called for in 2020, needs to comply with the criteria originally laid down in the Glenister cases. An Integrity Commission based on Chapter Nine of our Constitution, would have to be specialised and dedicated to dealing with corruption to the exclusion of all else.

For a Chapter Nine Integrity Commission to be effective, personnel would need specialised training, the independence of the institution on a structural and on an operational level would have to be secured, it would need to be well resourced, and unlike the Scorpions, it would have to enjoy secure tenure of office. Freedom from executive influence and interference would be required in order to counter the corrupt without fear, favour or prejudice.

The five criteria for such a Chapter Nine Integrity Commission – specialisation, training, independence, resourcing and security – have become known as the STIRS criteria. Even the new Investigating Directorate of the NPA is not STIRS compliant, as it serves at the pleasure of the president in terms of a proclamation he made without due regard to the binding nature of the STIRS criteria laid down by our highest court.

NPO Accountability Now, has long advocated the establishment of a new Chapter Nine Institution to counter grand corruption, kleptocracy and state capture. Draft legislation and the necessary constitutional amendment have been presented to successive parliaments with no discernible impact since 2012.

The parliament elected in 2019 has yet to be approached by Accountability Now with representations on the topic. Perhaps naively the resolutions at Nasrec and in 2020 were taken at face value.

It has now become clear that the NPA is compromised and hollowed out, it is littered with “saboteurs” who stand in the way of effective and efficient anti-corruption efforts. The 2012 drafts need to be revisited in order to accommodate this reality. The new body needs to be clothed with prosecutorial powers in addition to the powers to prevent, combat and investigate corruption.

Effective anti-corruption action within the criminal justice administration can be achieved if there is the necessary political will to effect the required reforms and to create a much needed Chapter Nine Integrity Commission to hold the corrupt accountable.

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

To find more information on the proposed anti-corruption constitutional amendment, please enjoy the full details available here

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