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Poplak is quite wrong about the State Capture Investigative Directorate

The President has been poorly advised in making an announcement about setting up a special unit to probe State Capture. If he follows through, he can expect to be sued by those who do have genuine fealty to constitutionalism and the rule of law.

Richard Poplak’s reaction to SONA was excellent, but there is one small but important point on which I disagree with him, vehemently so. In common with most commentators, Poplak has welcomed the announcement during SONA that the President is contemplating gazetting the terms of reference of a special investigative directorate into State Capture. He says:

“Last, there was Ramaphosa’s bombshell announcement: the National Directorate for Prosecutions (NPA) will soon set up its own Scorpions-style standalone State Capture investigation and prosecution unit. This, especially for those who have campaigned against the ANC’s rotten patronage network, should be worthy of unambiguous celebration, especially if the NPA goes after corporate criminals and apartheid cold files at the same time. This could start ushering real justice into our accountability-free culture, and should make everyone deliriously happy.”

Those who know the law applicable and those who have struggled long and hard to introduce accountability into the SA polity are not as happy as Poplak suggests they should be.

One hesitates to be curmudgeonly when a singing and dancing president, on a nine-year-long and fruitless quest for that metaphorical machine gun, is replaced more than a year early by a trained lawyer, skilled negotiator and “new dawn” initiator known as a successful, urbane and charming businessman of billionaire standing. However, the announcement Poplak praises are nothing more than ANC sleight of hand. It does not usher in an era of accountability for State Capture, nor will it succeed in countering the culture of impunity for grand corruption which is the hallmark of ANC governance since 1994.

Here’s why.

The provenance of the new Presidency may have been cooked up in a smoke-filled back room at Nasrec, with the assistance of the faux-unity campaign of DD Mabuza (rewarded, for delivering his rapidly converted cadres as voting fodder for team CR17, with the deputy presidency and therefore, so he hopes, the keys to impunity for the dark deeds of his past). Whatever: it just has to be an improvement on the wasted “Zuma years” to have Cyril Ramaphosa in the presidential hot-seat, despite the continued presence of too many persons better suited to orange overalls in the top structures of the ANC, in Cabinet and in Parliament.

Think back a year, when two carefully chosen members of Parliament proposed and seconded Ramaphosa for the presidency. They were careful to stress his revolutionary credentials. It may sound strange that a party in power for 25 years still regards it as necessary to pursue its “national democratic revolution”, aimed at securing hegemonic control of all “levers of power in society”, instead of simply passing laws and creating a policy to end the need for its revolution. One of those levers is the anti-corruption machinery of state, currently in a dysfunctional state of disrepair due to the ravages of the Zuma years.

That there is tension between the ANC’s revolutionary agenda and the binding requirements of the Constitution of the land, as interpreted by the courts, is illustrated by the frequency with which the courts are cast in the role of a “juristocracy”. The frequent public interest and other litigation are necessary to correct ANC “revolutionary” laws and policy which are inconsistent with the Constitution but are, instead, aimed at achieving the hegemony of the revolution. The frequency with which the ANC and its government lose this type of litigation is a testimony to the inconsistency of its NDR with constitutional values. Investigative journalists, civil society organisations and the faith-based community have their hands full reporting, countering and dealing with the tide of corruption in the land. The criminal justice administration, according to the evidence emerging from the Zondo, Nugent, Mpati and Mokgoro commissions, appears to be part of the problem, not part of the solution. Crooked top cops, Hawks that don’t fly and a semi-captured NPA are not the type of human resources from which accountability is made. Daily Maverick has devoted a great deal of column space to these features of the criminal justice part of the public administration.

The ANC’s desire for hegemony is destructive of transparent, accountable and responsive forms of governance which the Constitution requires. A distressing example of the “hegemony phenomenon” relates to the desire of the cadres of the NDR to control the anti-corruption machinery of the state. The President’s new plan is no different, no less unconstitutional and no better.

One of the most dastardly, and earliest, acts of the whole of the wasted Zuma era was the dissolution of the Scorpions, an anti-corruption unit located in and operating as a part of our (supposedly) independent National Prosecuting Authority. This single step, taken to implement an “urgent” Polokwane December 2007 conference resolution of the ANC, eviscerated the capacity of the state to prevent and combat the inevitable slide towards State Capture which ensued.

Instead, a culture of impunity for corrupt acts grew and spread like wildfire in the procurement chains of the state and the public enterprises, in the tenders of chancer-businessmen and in the type of political protection racketeering now exposed in the Bosasa related evidence before the Zondo Commission of Inquiry and in the charge sheet for Jacob Zuma. Gwede Mantashe does not seem to appreciate the wrongfulness of his anticipated ability to protect his “friends” in Bosasa which led to the corrupt installation of security systems at his properties at no cost to him, leaving him hopelessly compromised. The general impunity achieved is reflected in the fact that not a single successful prosecution of the well-connected corrupt in SA has followed.

The history of the struggle for accountability to replace impunity bears brief mention. The replacement of the Scorpions with the Hawks, a tame police unit firmly under the control of the minister of police (and therefore the Cabinet), was resisted by civil society. Bob Glenister, a Johannesburg businessman, mounted a brave court challenge to the rationality and legality of the basic idea of doing away with the Scorpions. He lost. The court baulked at labelling the ANC resolution as irrational and told Glenister his challenge was premature. No new act was on the statute book when he launched his challenge. Parliament was yet to do its work.

The Hawks legislation and the law dissolving the Scorpions appeared on the statute book after a long hard fight in Parliament. Undeterred, Glenister litigated the constitutionality of the whole scheme, ably abetted by the Helen Suzman Foundation as amicus curiae. (With the benefit of hindsight, scheming was indeed behind the disbandment of the Scorpions – without them, the way was clear for the State Capture and grand corruption with impunity projects of the Zuma years about which we all now hear as the evidence of malfeasance tumbles out in the various commissions of inquiry currently sitting.)

On 17 March 2011, the Constitutional Court found that corruption is a human rights issue. It reasoned that the duty to respect and promote human rights cannot be properly performed by the state if theft from the poor, which is what grand corruption amounts to, is the order of the day. Additionally, the court laid down, for the guidance of the executive and legislature, the criteria by which effective and efficient anti-corruption machinery must be established. In the course of a learned and lengthy judgment it held ( at para [200]) that:

“…[on] a common sense approach, our law demands a body outside executive control to deal effectively with corruption”

The Court gave Parliament 18 months to devise remedial legislation aimed at turning the sow’s ear Hawks into a silk purse. That proved impossible due to the absence of political will within the ANC to implement the finding quoted above. Turkeys in parliamentary committees do not vote for a Christmas dinner at which their leaders are on the menu.

The remedial legislation of 2012 was again impugned in court, by the same litigants, and the most recent chapter in the saga ended in November 2014 when the Chief Justice fired off this broadside in the first words of the majority judgment:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. This, in a way, is the issue that lies at the heart of this matter. Does the South African Police Service Act, as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?”

As we all (including the President) now know, the Hawks, both before and after these words were written for the majority of the court, have never measured up to the criteria set and confirmed in binding fashion in the litigation initiated by Bob Glenister. The criteria have become known as the STIRS requirements: a Specialised, Trained, Independent, Resourced (adequately and in guaranteed fashion) unit that enjoys Security of tenure of office is what the courts require. It is not, to the shame of the government, what has been done. In short, the Hawks do not have, and never have had, in all three of their legislated incarnations, sufficient structural and operational independence from executive control to deliver on their anti-corruption mandate. They are also under-resourced and lack security of tenure of office.

Their abuse, by the executive led by Jacob Zuma, to persecute Pravin Gordhan on trumped-up charges and generally to make life difficult for those seeking to stem the tide of corruption (the names Pikoli, Dramat, Booysen, Breytenbach, McBride, Pillay, Van Loggerenberg and Sibiya come to mind) has rendered them useless in the combating of corruption. Ramaphosa does not even attempt to include them in his future plans for countering corruption as announced during SONA.

Against this background the decision of the President to announce, during his SONA on 7 February 2019, that he intends to establish a State Capture Investigative Directorate in the National Prosecuting Authority is perplexing. He is a lawyer, he must surely understand that the anti-corruption machinery of state cannot be independent and secure in its tenure if it is within his own executive gift, ahead of the executive branch of government, to create it and to end its existence as well as to determine its terms of reference. The provisions in the NPA Act upon which he will rely in establishing the new unit are clearly inconsistent with the Constitution as it was interpreted in the two cases mentioned above. Zuma never used them against the corrupt; perhaps he was better advised.

The President has been poorly advised in making the announcement as it is now open to those genuinely interested in the combating of corruption, especially in high places, to attack the constitutionality of the establishment of the unit, if the President remains so ill-advised as to actually follow through on his announcement.

Executive control of anti-corruption machinery of state is incompatible with the requirements of independence and of security of tenure of office. It is as plain as a pikestaff that a better way forward is required, urgently so.

Instead of taking the misstep that the Investigative Unit on State Capture constitutes, the President should set about putting in train the establishment of a unit that does comply with the court rulings that bind him to eschew executive involvement in anti-corruption work. This much-needed step could involve setting up what has been called an Integrity Commission (the name is in the hands of Parliament) as a new Chapter Nine Institution to slot in between the Office of the Public Protector and the Auditor General.

Created to prevent, combat, investigate and prosecute grand corruption, state capture and kleptocracy this elite new unit could have the capacity, if fully STIRS compliant, to deal a mortal blow to the Zuma faction, its fellow travellers and all those involved in grand corruption of all kinds. Due to its specialised function, it need have nothing to do with the Hawks and the NPA. The sidestepping of the dysfunction in these institutions is sorely needed as it will take years to repair the damage of the Zuma years.

Whether the President has the fortitude to deal with the political fall-out of this development is a matter for politicians to sort out, it is an unavoidable consequence of compliance with the rule of law and with the rulings of the highest court in the land that STIRS compliant anti-corruption machinery of state is required.

Lip service to the rule of law, the failure to arrest a single “big fish” corrupt operator during the entire lifespan of the Hawks, and the threat which grand corruption poses to the future of the country, are all currently present. They are indicators that the President has to seize the bull by the horns. He is right that a new entity is needed. He is dead wrong to think that his investigative unit is what is required. He must now do what is necessary to get to grips properly with the corrupt among us, even if some of them are his friends, his donors and his colleagues in Cabinet, the NEC of the ANC and in business. He owes it to his oath of office and to the country.

If the President follows through on the announced Investigative Directorate for State Capture, he can expect to be sued by those who do have genuine fealty to constitutionalism and the rule of law. As the Constitutional Court majority put it in 2011 (at para[166] of the Glenister II judgment): “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society are put at risk.”

This risk is a risk the country cannot afford to take. Payment of Sassa grants, provision of basic services to the poor, securing the safety of persons and property; creating conditions for peace, progress and prosperity is what the President is in office to achieve. He has to act on implementing his “new dawn” programme in a better informed and constitutionally compliant manner. Getting corrupt into orange overalls is a priority; creating the structural and operational anti-corruption environment necessary is a pre-requisite for keeping our national democratic project on course.

While the President’s implicit recognition that the current structures for and operational capacity of the state machinery for investigation (Hawks) and prosecution (NPA) of the corrupt are inadequate is most welcome, the mooted response of the President, well-meant as it may be, is not a legally sound nor practically adequate way of dealing with the threat that grand corruption poses to the country. The time to establish the Integrity Commission as SA’s premier anti-corruption entity has arrived.

Poplak needs to reconsider his views on the solution to grand corruption proposed during SONA. DM

Paul Hoffman SC is a director of Accountability Now

Opinionista • Paul Hoffman • 11 February 2019 • Daily Maverick

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