CAPE TOWN — South Africa’s ruling party has played cat and mouse with the Constitution when it comes to creating bodies meant to track and prosecute corruption. In this erudite, shining contribution, Paul Hoffman, SC, Director of Accountability Now and constitutional expert, outlines how the ANC first carefully created and then grossly manipulated, de-clawed and/or rendered mostly harmless every manifestation of corruption busting outfit we’ve had. The take-home message however for those of us unshakeable in the belief that President Cyril Ramaphosa is finally going to bridge this accountability chasm, is not re-assuring. Hoffman dubs the latest manifestation, the Dodo. (First, we had the politically squashed Scorpions, then the Hawks Mark 1, 2 and 3, all seemingly deliberately ineffectual tweaks following Constitutional Court rulings). Now we have the Directorate for the Investigation of State Capture, or Dodo’s, (note; only State Capture), which reports directly to Ramaphosa. There’s the problem. Again, the ANC seems to be avoiding an effective solution. Hoffman reminds us of what the Concourt judges have said; that our law demands a body outside of executive control, such as his suggested Integrity Commission or ‘the Eagles’. Regardless of Ramaphosa’s implied integrity, insufficient independence in a corruption-busting body sounds its death knell. – Chris Bateman
By Paul Hoffman*
A short history of official anti-corruption activity in the new SA is useful reading, now that the President has announced his intention to create the Dodos or Directorate for the Investigation of State Capture. The name Dodos has been coined because the proposed new unit won’t fly and is doomed to early extinction.
It has become a tradition to give anti-corruption units a nick-name. The Directorate of Special Operations, legislated into being to deal a mortal blow to the corrupt was popularly called the Scorpions. As all entomologists well know, the stronger the poison in the tail, the smaller the nippers on the critters. While the attacking features in the tail of the DSO contained strong poison, they were ill-equipped to defend themselves against the mortal blow administered when the ANC Polokwane conference resolved in December 2007 that they be urgently crushed to a pulp, right there under the rock where they had been housed in our independent National Prosecuting Authority since September 1999. Despite political opposition to this move, and spirited litigious efforts, the crushing of the Scorpions was successfully concluded at the behest of the ANC majority in parliament. It swept all objections put in its path away with the arrogance and determination of those who know that what they are doing is only achievable by using the tyranny of the majority. The Scorpions were an irritation to corrupt ANC bigwigs.
In February 2009, then President Kgalema Motlanthe signed two Bills into law, one disbanding the Scorpions and the other creating a new police unit, the Directorate of Priority Crime Investigation, or Hawks, to take the place of the Scorpions.
The constitutionality of both of these new Acts was impugned in litigation launched by Johannesburg businessman, Bob Glenister. Shortly before the case was heard on appeal in the Constitutional Court the Helen Suzman Foundation joined the fray as amicus curiae.
On 17 March 2011 the court ruled, by the slimmest possible margin of 5 Justices to 4, that the closing down of the Scorpions was lawful, but that their replacement, the Hawks, were not adequately independent to be an effective and efficient anti-corruption body. Parliament was sent back to the drawing board to craft a unit that would comply with various criteria laid down by the court in its judgment. The court eschewed being prescriptive about this process; insisting only that the decision of a reasonable decision maker “in the circumstances’ be taken. The binding STIRS criteria it set meant that the new unit should be specialised in anti-corruption work, with trained personnel equal to the task of taking on the corrupt. The unit would have to be independent of executive control, interference and influence, resourced adequately in a guaranteed way and its staff would have to enjoy security of tenure of office.
Parliament took the full 18 months given it by the court to fashion amendments, hard fought amendments, to the Hawks legislation. It rejected suggestions made during the public participation process that it was not suitable to locate the Hawks within the police, given the reporting lines, executive control and general dysfunction in the SAPS. The Hawks Mark II saw the light of day in September 2012.
Further litigation, attacking the constitutionality of what had been done by parliament culminated in a judgment of the Constitutional Court (on appeal) in November 2014. The court was not satisfied with the parliamentary tweaking of the legislation and did some tweaking of its own, giving birth to the Hawks Mark III. It rejected Glenister’s invitation to insist that the Hawks not be located within the police.
The Hawks have been an abject failure. In their first full year of operation in 2008/9 the number of new investigations of corruption fell by 85% compared to the previous year when the Scorpions still operated. The value of contraband seized fell by 99%. In their last year the Scorpions had seized goods to the value of R4bn, in their first year the Hawks managed a mere R35m. These statistics are as dismaying as they are startling.
Things did not get better either: according to an official reply to a parliamentary question the number of arrests by the Hawks fell from 14,793 in 2010/11 to 5,847 in 2014/5.
The head of the Hawks, General Anwa Dramat was eased out of office when he took an interest in seeing the Nkandla dockets. Other leading corruption busters were persecuted by the new Hawks boss, General Berning Ntlemeza until his term of office came to a litigated premature end. The Hawks were abused to settle factional battles, notably with their persecution, on trumped up charges, of no-nonsense cabinet member Pravin Gordhan. Not a single “big fish” has been landed by the Hawks throughout their three incarnations. Indeed, during the Zuma years, any attempt to catch “big fish” has proved to be career limiting. The names Pikoli, Breytenbach, Booysen, Pillay, Sibiya and Dramat bear testimony to the dangers of trying to do one’s job properly in the anti-corruption sphere.
It is accordingly not surprising that the President, in SONA and since then, has not turned to the Hawks to rescue the country from the grip of state capture, grand corruption with impunity and kleptocracy. Instead, he has proposed the idea of a new NPA directorate to investigate state capture. It is this unit that has all the qualities of the Dodo, a flightless Mauritian bird that was soon driven to extinction when it came into contact with greedy, thoughtless and corrupt settlers.
Here’s why the Dodos proposed during SONA won’t fly and are doomed to early extinction:
The courts have ruled regarding the nature and qualities of our anti-corruption machinery of state. The state is bound by these rulings. The proposed directorate ought to be “adequately independent” and “STIRS compliant”.
While the government may be able to find Specialised and Trained personnel who are properly Resourced in guaranteed fashion, the Independence and Security of tenure of the directorate is highly questionable. Freedom from executive influence and interference (or that elusive “adequate independence”) is unachievable because the directorate serves at the pleasure of the president, who heads the executive. It is also limited by the terms of reference he prescribes. (Note well how it is to be limited to investigating state capture only) He can close it down in a trice if it takes too much interest in his friends and favoured colleagues.
The Constitutional Court has held that:
“…[on] a common sense approach, our law demands a body outside executive control to deal effectively with corruption” Patently, the directorate won’t be such a body. Therein lie the seeds of its unconstitutionality.
With the demise of the Scorpions ten years ago the NPA was stripped of general investigative capacity, this function was transferred to the Hawks, a police unit. The only way the NPA can obtain investigative capacity now is via presidential intervention. This is permissible for other purposes, but not for the purpose of dealing with state capture or any other form of grand corruption. The presidential announcement is invalid; any attempt to establish the directorate can be struck down as inconsistent with the Constitution as interpreted in the Glenister litigation.
What is actually needed is an Integrity Commission, which accounts to parliament. Consider the draft legislation Glenister case page for a full exposition of the best practice solution to the rampant corruption that has seen the lights go out, the coffers of the state raided repeatedly and the corrupt escaping justice with impunity in SA.
All voters should insist that the party they support should make the establishment of a single body to prevent, combat, investigate and prosecute grand corruption a major plank of its election platform. This new Integrity Commission could soon earn the nick-name “The Eagles” because they fly higher, see further and hunt bigger prey than the bird-flu prone Hawks.
- Paul Hoffman SC is director of Accountability Now.