South Africa urgently needs an Anti-Corruption Commission with real teeth – a Scorpions 2.0

by | Apr 5, 2024 | Chapter 9, General | 0 comments

By Glynnis Breytenbach

The fight against corruption cannot be solved through slapdash legislation which does nothing to ensure the independence of the National Prosecuting Authority and, by extension, the Investigative Directorate.

We have not seen one high-profile politician responsible for capturing our state successfully charged and prosecuted.

Three years after the conclusion of the State Capture Commission and two years after the publication of its first report, the National Prosecuting Authority (NPA) is simply not in a position to deal with the scale of corruption nor hold the individuals and entities implicated to account.

The NPA is required to fulfil its Constitutional mandate to prosecute crime without fear, favour or prejudice, but is itself an institution that suffered the most at the hands of the State Capture project.

The NPA has lost a vast number of experienced prosecutors, both to the private sector and to retirement. Very little has been done to remedy this loss.

The NPA is taking on the task of prosecuting complex criminal networks with a paucity of staff. At the same time, it must focus its efforts on rebuilding the hollowed-out institution while keeping the wheels of justice turning.

It is no surprise that it is struggling to prosecute these networks responsible for State Capture.

The NPA’s inability to hold those implicated in corruption, money laundering, organised crime and terror financing to account has contributed to the Financial Action Task Force (FATF) greylisting South Africa.

The Corruption Perception Index for 2023 scored South Africa at 41, the worst it has ranked since 2012.

So what is the solution?

The Department of Justice and Correctional Services has touted the re-establishment of a permanent Investigative Directorate (ID) within the NPA that focuses on dealing with corruption as the solution. However, this solution is misleading for various reasons.

First, making the ID a permanent entity will not solve the problem. The ID was established five years ago by the President by way of a proclamation (as opposed to legislation). In the past five years, it has not achieved much in combating corruption. By simply giving it the name “permanent” we are not solving the inherent problems that led to it not working in the first place.

The real problems lie elsewhere – lack of sufficient appropriate skills, both prosecutorial and investigative, lack of forensic skills and capability, lack of political will and a lack of sufficient or any support from SAPS.

And most importantly, a total lack of adequate funding.

The ID purports to replicate the Scorpions. This is simply not true.

The Scorpions was an effective unit because it had access to excellent and experienced prosecutorial expertise and investigative and forensic skills.

We also must not overlook that, because it was effective and successful, the ruling party dissolved it with great fanfare and glee when it started pursuing politicians.

Nothing in the recent legislation protects the ID from following the same fate.

The governing party has taken great care to ensure that a simple 50% + 1 majority of politicians in Parliament can remove the ID by amending the NPA Act.

The removal of the Scorpions was a key turning point in our state’s capture. Fool us once, shame on them; fool us twice, shame on us.

The fight against corruption cannot be solved through slapdash legislation which does nothing to ensure the independence of the NPA and, by extension, the ID.

It also does not pass constitutional muster.

The Constitutional Court has expressed firm views in this regard. The NPA lacks institutional independence because, at the end of the day, the minister of justice has the final responsibility for it and also controls its budget – or lack thereof.

For these reasons, we propose a different solution to the problem: an Anti-Corruption Commission – an independent constitutional body housed outside the NPA.

We would place the Anti-Corruption Commission as a Chapter 9 institution with the same status as the Public Protector and Auditor-General.

In the following months, the Constitution Twenty-First Amendment Bill will be introduced in Parliament by the Democratic Alliance as a private members’ bill to establish the Anti-Corruption Commission.

This Commission will have the power to investigate and prosecute serious corruption and high-level organised crime, including money laundering and racketeering.

Most importantly, it will not be beholden to the political elite.

As a Chapter 9 body, the Anti-Corruption Commission will be a robust organisation that is not dependent on those in power for its operations.

It will be well-resourced, enjoy a secure tenure of office, subject only to the Constitution and report directly to Parliament and not the minister of justice. Its budget will be determined directly by the Treasury, thereby removing the spectre of control by the minister.

The OECD, in its report on Specialised Anti-Corruption Institutions, recommends that these bodies “must be independent from undue interference, specialised in corruption and have sufficient resources and power to meet their challenging task”.

It is quite clear that the NPA lacks these qualities. The Anti-Corruption Commission, as a Chapter 9 institution, will not.

The Anti-Corruption Commission is a dire necessity rooted in the need to address a history of corruption, civil disillusionment and political hypocrisy.

The failure of our current system to bring to justice many of the corporations and individuals implicated in corruption and organised crime only deepens inequality in South Africa.

It continues to deny delivery of guaranteed human rights and access to justice against those who steal, loot and misappropriate resources which were intended to uplift communities.

We cannot continue accepting the status quo of impunity and zero accountability.

South Africa needs an Anti-Corruption Commission – an actual Scorpions 2.0 – to once and for all address the problems in prosecuting high-profile and complex matters effectively and efficiently, ensuring accountability and consequences for antisocial behaviour. DM

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