Long has corruption-busting advocate Paul Hoffman maintained that the NPA is unfit to deal with complex corruption cases in South Africa. He firmly believes that it will take years to fix all of the problems – years that our country does not have. Hoffman says it’s time to implement the NEC’s proposal of a new, independent agency that is properly equipped to deal with the dirty dealings of graft-tainted politicians. So why did Shamila Batohi neglect to mention the sensible proposal in the NPA’s annual report to parliament? Hoffman reckons she’s just sticking her head in the sand. – Claire Badenhorst
Rebuilding the NPA is not the best way to counter grand corruption
By Paul Hoffman*
The presentation of the Annual Report of the National Prosecuting Authority (NPA) to parliament presents an opportunity to give consideration to the role of the NPA in countering the forms of grand corruption, kleptocracy, state capture, nepotism, cronyism and patronage that still thwart progress toward a ‘better life for all’ in SA.
The National Director of Public Prosecutions, Shamila Batohi, was quick to bring the tasks involved in combating the corrupt into focus during her presentation. It is reported in the media that she pointed out that “the wheels of justice are turning, but they can grind to a halt if the NPA budget is cut.” She added that corruption-related prosecutions the NPA brought recently were only a “tiny, tiny pinpoint on a massive iceberg.”
“The wheels of justice are turning. It has been slow. In the past, these cases might never have seen the inside of a courtroom,” she said, adding that things have changed at the NPA. When she joined the organisation, she found that it was under-resourced in terms of skill, capacity and funding, that the organisation had lost credibility and that staff morale was at an all-time low.
Batohi stressed that it was clear that change was required to rebuild an independent, professional, accountable and credible NPA – change involving recruitment of new staff.
The NEC vs the NPA
In a parallel universe, the centre of which is at Luthuli House, the National Executive Committee (NEC) of the ANC resolved during the course of the first weekend of August 2020 that cabinet must urgently establish a new entity to ‘deal with’ corruption. A press report has the details:
“The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice.”
This clarion call gives clear direction on the way forward: firstly, the matter is rightly regarded as urgent; secondly, the long debate concerning the use of multiple agencies vs the single permanent agency approach is put to bed, and thirdly, the need for independence in anti-corruption work is acknowledged, having been smothered in the Zuma era.
Fourthly, a permanent agency is required, not one dependent upon the whim of the executive (that is the lot of Hermione Cronje’s Investigating Directorate within the NPA), and also not one that could, in the future, be easily closed down by a simple majority in parliament, which was the unfortunate fate of the Scorpions. A fate sealed by the election of Jacob Zuma at the Polokwane Conference of the ANC in December 2007. During that conference the ANC resolved that investigative personnel in the Scorpions be transferred to the police as a matter of urgency.
Today, with hindsight, everyone knows why it was so resolved.
Still, we wait
Despite the passage of more than two months since the NEC’s resolution, it is not given any mention at all in the reporting to parliament by the NPA. Nor, as far as can be ascertained, has the cabinet done anything, whether urgently or otherwise, to implement the NEC resolution. Some suggest that the resolution was not seriously made and that it constitutes nothing more than lip-service to an anti-corruption image that the ANC is trying to create to fool voters and the unwary.
It is surely preferable in the national interest to take the resolution seriously and hold government to its implementation. For the first time since 2007 the ANC and the law in relation to anti-corruption machinery of state are in alignment. The resolution, if properly implemented, will give expression to the binding criteria for that ‘agency’. The criteria that were laid down by the Constitutional Court in its seminal Glenister case majority judgment of 17 March 2011. That judgment has not been properly implemented either during the Zuma years or since. The Hawks have not been equal to the task of investigating serious corruption. Consequently, the ‘big fish‘ are still swimming free in the oceans of impunity around the land.
The closest the NPA comes to acknowledging the existence of a resolution which will, in effect, remove anti-corruption activities from its mandate, is the following:
“A Legislative Team was constituted and tasked to do a legislative review in conjunction with the Department (of Justice), with the aim of making recommendations and suggestions on amendments to legislation which could assist the NPA on how best to respond to the challenges brought by Covid-19 and address its (sic) impact.”
A slap in the face?
Reading between the lines of this slide in the presentation to parliament, it is possible that this represents a reaction of sorts to the decision of the president to refer pandemic-related irregularities in the procurement of personal protective equipment to the Special Investigative Unit (SIU) headed by Adv Andy Mothibi. The SIU is not a part of the criminal justice administration. The ID of the NPA might have expected the task presidentially allocated to the SIU. That decision might have landed as a slap in the face to the NPA and its ID.
It is already evident that the president has no confidence in the Hawks as grand corruption-busters: hence his proclamation of the Investigating Directorate in the NPA. This step, in effect, purports to give back to the NPA the investigative capacity that parliament took away from the NPA when the Hawks were formed.
As the NPA’s report records, an independent review by Chris Stone and Vusi Pikoli, former NDPP, found that the ‘statutory foundation and structural basis’ of the ID “is weak, preventing appropriate and swift resourcing.” The ID has no mechanism to facilitate unity of purpose according to Stone and Pikoli. They point out that the necessary specialist skills and know-how to fight corruption have been lost in the public sector. They see the ID’s efforts as representing “building blocks of a more permanent anti-corruption capacity” and they stress that “guaranteed independence is a key determinant of success” in any anti-corruption machinery of state.
The solution to these short-comings of structural and operational nature that is proposed by the resolution of the NEC is both constitutionally sound and practically viable. The political will within cabinet, the legislature and the criminal justice administration to implement it is all that is lacking at present. Pressure from engaged and participative citizens, organisation of civil society, the faith-based sector, trade unions and business are required to stimulate the political viability and urgent implementation of the resolution of the NEC.
Not only will the budgetary problems of the NPA be alleviated, its focus can turn to other priorities for which it is better able to equip itself: Gender-based violence, the high murder rate and other common law crimes.
It is obvious that the new NPA recruits will not be ready for many years to successfully drive complex corruption cases. The ‘hollowing out’ of the NPA and the presence of what Cronje calls ‘saboteurs’ in its ranks will take years to correct. These are years SA cannot afford. The continuation of grand corruption with impunity will fell at the knees all prospects of economic revival and job creation. A bailout by the IMF will come with conditions that will be most unpalatable to government.
It is better by far to implement the NEC resolution, create the specialised, highly trained, independent agency; resource it properly in guaranteed fashion and entrench that its staff enjoy security of tenure of office. [The latter being the ‘permanent’ requirement identified correctly by the NEC.]
In this way it will be possible to recruit the skills and experience currently unavailable to and unattainable by the NPA. Objective and merit-based criteria must be applied from top to bottom in the recruitment and appointment processes. We know, from the experience with the Scorpions, that the talent and clout, the expertise and courage that are needed are available in SA. They cannot possibly be tapped by the NPA. As Stone and Pikoli delicately point out, the ID is “hampered administratively in securing alternatives” for the “specialist skills and know-how” that are required to secure convictions in grand corruption cases.
SA needs a new agency
While it is understandable that Batohi may want to keep her ’empire’ intact and rebuild it to the glory days of the pre-Zuma era, it is logistically, politically and practically impossible to do so in the short or even medium term as regards the combating of corruption. The country does not have the time available to allow that process, necessary as it may be, to unfold. The new agency proposed by the NEC is preferable by far as a practical means of dealing with corruption.
A possible ‘best practice’ way of implementing the NEC resolution is to establish a new Chapter Nine Institution mandated to prevent, combat, investigate and prosecute grand corruption (as defined by parliament). Prevention will include public education and whistle-blower protection. The fact that doing so will involve curtailing the prosecution powers of the NPA should not be regarded as an impediment. Especially not when the gradual rebuilding of the NPA is the change now needed. Batohi herself stressed that it is clear that change is required to rebuild an independent, professional, accountable and credible NPA. The changes will take time, the training of new recruits will take years, the rebuilding will require even more years – years not available.
The skills, capacity and capabilities needed to see off the corrupt, the kleptocrats, and the wannabe state capturers who have so brazenly stolen the public purse blind and continue to do so in, inter alia, PPE procurement processes with murderous disregard for their impact on the safety of health workers, will not be available to the NPA at any time that is relevant to saving the country from bankruptcy.
Archbishops Tutu and Makgoba, the former Public Protector Thuli Madonsela and others have stressed the need for a new Chapter Nine Institution to restore integrity and end corruption. The president himself is not averse to the idea. He called it “refreshing” when questioned in parliament by the IFP Chief Whip Narend Singh. The stage has now been reached when the urgency of implementing the NEC resolution properly cannot be over-stressed.
It is accordingly disappointing that the NPA chose not to react to the resolution in its presentation to parliament. It ignores the resolution at its peril. Clearly, the law and the Constitution bind the NPA to work in the manner devised by parliament in the SAPS and NPA Acts. Currently these laws divide the investigation and prosecution work on corruption between the two agencies. It is crystal clear that this has not worked.
The rate of prosecutions has been likened to a pinpoint on an iceberg, not by critics, but by the head of the NPA herself. The high and the mighty in politics still enjoy impunity. The new agency proposed by the NEC is the optimal way forward.
The NPA leadership should constructively engage in finding the best means of implementing the remedial legislation required rather than ignoring the resolution. It is the most constructive, feasible and effective way forward toward dealing with corruption for once and for all in SA.
If it is implemented with due regard to the weaknesses in the NPA and SAPS as well as on the basis that the findings of the Constitutional Court in the Glenister litigation are taken into account properly and wholeheartedly, a better life for all is still possible. The recovery of the massive amounts of loot of state capture will make the NPA’s expressed concerns about budget cuts seem trivial.
The NPA needs to come to terms with its inability to fight grand corruption fully or even adequately either now or any time soon enough for the welfare of the people. It must surely make a constructive contribution toward the implementation of the NEC resolution without fear of losing some of its turf, without favouring the delays inevitable if the turf is clung to while it effects internal ‘changes’ and without prejudicing the public weal by standing in the way of progress toward holding the corrupt to account and recovering looted funds and assets.
It is disappointing that the NPA’s reporting to parliament fell short of dealing with the sound and sensible proposals of the ANC and the fundamental concerns raised by Stone and Pikoli. It is not too late to correct the failure to respond. It is not beyond the scope of the powers of Batohi, who determines prosecution policy, to comment publicly on the proposals made by the ANC. If implemented, they will clearly impact on prosecution policy. Ignoring them is ostrich-like.
- Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.