Security of tenure and independence from political influence are vital in fight against graft

12 November 2022 – 12:45 By Paul Hoffman

Balancing the scales of corruption vs law ” Impunity flourishes when the corrupt think they can get away with their schemes, be it a petty bribe or a tilt at capturing the whole state.”

A smorgasbord of recommendations in the Zondo report pertains to preventing a repetition of state capture. At its core, this endeavour will involve deterring the greedy and the power-hungry from indulging their propensities for corrupt activities. Corruption is a crime, and crime is best dealt with by investigating, prosecuting and punishing those guilty of it. Requiring the looters to “pay back the money”  for the public benefit is part of the punishment. Impunity flourishes when the corrupt think they can get away with their schemes, be it a petty bribe or a tilt at capturing the whole state. The converse applies: the sure knowledge that justice will prevail restrains and restricts these sneaky and secretive forms of calculated and premeditated crime.

SA once had an enviable track record on countering the corrupt. The Scorpions, a unit within the National Prosecuting Authority, had a success rate of 92% and, unlike the current incumbents, had no fear of tackling the rich, powerful and politically connected who behaved corruptly. The Scorpions’ success incurred the ire of ethically questionable politicians and led to their demise. The Scorpions’ achilles heel was that they did not enjoy secure tenure of office. As creatures of an ordinary statute, they could be closed down by a simple majority vote in parliament, and they were, in 2009.

The recommendations made by chief justice Raymond Zondo on preventing a recurrence of state capture are bedevilled by his misreading of the law. His misinterpretation stands uncorrected in the first tranche of his report. The error is a serious one. The chief justice understood what he regarded as the praiseworthy joint judgment of deputy chief justice Dikgang Moseneke and justice Edwin Cameron in the second Glenister case to be a minority judgment, when in fact it is a binding majority judgment and statement of the law applicable to the creation of efficient and effective anti-corruption machinery of state. Had he correctly understood the position he could, and should, have recommended that the proper implementation of the findings, decisions and orders in that case is the way forward for countering corruption.

The ID will be no better off than the Scorpions were, as it will be equally vulnerable to closure by a simple parliamentary majority

The government is nevertheless obliged to implement the court’s decision and has failed to do so properly; not since the first incarnation of the Hawks, a police investigative body which was intended to replace the investigating arm of the Scorpions but has not succeeded in landing a single corruption “big fish”. The Hawks are answerable to the police hierarchy; they lack the structural and operational independence required to be an effective anti-corruption entity. Today nobody seriously suggests the Hawks are the appropriate body for this task, however well they do in respect of other priority crimes in their mandate. Now in their third incarnation, the Hawks have not succeeded with corruption-fighting. Proper investigation of corruption must precede its prosecution.

What is required, if the law is properly implemented, is an entity that meets all the binding criteria set in the Glenister case. The two most important of these criteria are independence and secure tenure of office. The fate of the Scorpions has to be avoided. There is a need to eliminate political influence, interference and control in a manner which leaves the entity in a position to investigate and prosecute the seriously corrupt without fear, favour or prejudice.

By presidential proclamation President Cyril Ramaphosa established the Investigating Directorate in the NPA for this purpose. He now proposes to make it a permanent entity by way of ordinary legislation. This step does not address the binding secure tenure requirement. The rejigged “permanent” ID will be no better off than the Scorpions were, as it will be equally vulnerable to closure by a simple parliamentary majority. As part of the NPA it will also be subject to the influence inherent in the “final responsibility” of the minister of justice over the NPA.

The best practice way of doing the necessary to implement the joint judgment in Glenister’s case thoroughly is to establish a new chapter nine institution with a mandate to prevent, combat, investigate and prosecute serious corruption in which the value of loot is more than (say) R5m.

The main reasons for housing the entity under chapter nine are twofold: first, like all chapter nines it will report to parliament, not the executive, and second, it will not be vulnerable to closure by a simple majority in parliament. To close down a chapter nine institution, a two-thirds majority is required. Eliminating the reporting line to the executive also has the advantage of enhancing the independence of the entity as parliament is a multiparty body better equipped to exact accountability. Anti-corruption work of the quality briefly achieved by the Scorpions is possible with this type of stand-alone entity.

This standard will not be achieved by the NPA or the ID simply because the NPA has been and remains hollowed out by state capture. The NPA is also infested with operatives bent on preserving the impunity of those involved in state capture. The leadership of the NPA calls these operatives “saboteurs”. They are in place to see to it that the anti-corruption efforts of the NPA remain as puny as they have been while its self-confessed backlog of 10 years of corruption cases has built up relentlessly. Professionals with the necessary skills and experience obviously do not regard the NPA as a viable employer and it will take too long for the NPA to “grow its own timber”.

The ANC has traditionally sought to achieve what it calls “hegemonic control of all the levers of power in society”. This feature of its collective mindset makes it difficult to create a suitably independent entity as hegemony will be threatened by fearlessly independent corruption-fighters. The recently announced professionalisation of the public sector is, however, an indication that the ANC is moving away from its traditional cadre-oriented values by requiring honesty and merit as appointment criteria in the public sector.

It should do likewise on reform of the criminal justice administration by embracing the idea of a chapter nine institution for dealing with serious corruption. The Constitutional Court has set the criteria; the DA and IFP support the idea as do civil society organisations aligned to the Defend our Democracy campaign. 

Public interest litigation aimed at achieving proper implementation of the Glenister rulings will become necessary if the executive and legislature do not so implement. A draft of the necessary legislation has been suggested to both by Accountability Now. 

• Adv Paul Hoffman SC is a director of Accountability Now, was lead counsel in the Glenister litigation and is the author of two books, ‘Confronting the Corrupt’ and ‘Countering the Corrupt’

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