Creation of effective and efficient anti-corruption machinery of state is an international obligation of the state and is underpinned in SA by binding Constitutional Court findings in the Glenister trilogy of cases in which corruption is identified as a human rights issue and the obligatory criteria applicable to the machinery are set out by the Court.
- What the NEC wants
Resolution announced on 4 August 2020
Permanent multi-disciplinary agency
Stand-alone single entity
Urgently established to “deal with” corruption without fear, favour or prejudice.
- What the National Cabinet wants
Position taken in SONA on 11 February 2021:
“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to parliament.”
The Ministry of Justice is apparently desirous of a best practice outcome and is mulling the location of the body that will report to parliament in the same way as all existing Ch 9 Institutions do. The Ministry of Public Service and Administration favours a STIRS compliant chapter nine body that is capable of delivering on the integrity aspects that are the responsibility of that ministry. The Ministry of Police has not taken a position. The leadership of the police and NPA favour the status quo for obvious reasons.
- What the NACS says
Reflects SONA but with “constitutional” added to “statutory”
See: Glossy brochure presented in March 2021.
- What the Constitutional Court requires
Chief Justice Mogoeng Mogoeng’s opening words of HSF/Glenister III majority judgment delivered in November 2014:
“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 corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
These words re-affirm the position of the majority in Glenister II the March 2011 joint judgment of Moseneke DCJ and Cameron J
STIRS compliance is the law:
Secure in Tenure of Office.
These five binding criteria set by the highest court in the land have become known by the acronym STIRS.
- What Parliament raises
The Chief Whip of the IFP, during presidential question time in March 2019, asked President Ramaphosa to consider establishing a Chapter Nine Integrity Commission [Ch9IC] to investigate and prosecute corruption, he found the notion “refreshing” and undertook to “mull it over”. The DA is known to be working on Private Members Bills aimed at setting up a Ch9IC. As a two thirds majority is constitutionally required it is plain that cross party support and co-operation is required as no single political party commands two thirds of the votes in the National Assembly.
- What is the best practice way forward?
The A Team respectfully suggests that:
Good governance throughout the Public Administration and the SOEs is central to prevention of corruption and to achieving compliance with UN SDG #16. Education and training is of the essence of this goal. The pledge and bill of responsibilities are both useful tools in these processes:
The form of integrity testing of personnel at decision-making level that was introduced into the SIU ten years ago, and is still used successfully, should be rolled out nationwide in all spheres of government and in the SOEs for those in senior positions that involve procurement or financial decision-making.
Proper deterrence of the corrupt is achieved by ending the culture of corrupt practices with impunity that the Chief Justice complained of in 2014 but which continues to this day.
Establishing the Ch9IC is the optimum means of achieving proper compliance with the requirements of the law laid down in the Glenister cases but not implemented either properly or at all during the Zuma administrations.
The Scorpions had all of the STIRS criteria except the last, secure tenure of office. To replicate a statutory body, even if stand alone, is not an adequate response to the problem. The Scorpions were closed down by a simple majority of votes in parliament. The body envisaged in SONA 2021 is liable to suffer the same fate in the future if it is not afforded constitutional status and protection.
The lasting legacy and proof of the new dawn envisaged in the first Ramaphosa administration will be the Ch9IC which The NEC, the opposition, the Archbishop of Cape Town and the former Public Protector, Prof Thuli Madonsela and other leading citizens as well as opposition parties have embraced and supported. It is time for cabinet to do so too as an act of fealty to the rule of law and out of respect for the STIRS criteria laid down in the judgments which bind it.
The A Team also draws attention to the anti-corruption sentiments expressed in the founding documents of the Defend Our Democracy movement and to the exchanges in the columns of Business Day between SAIIA, Accountability Now and Vusi Pikoli, a former NDPP.
- What Bob Glenister says
If cabinet cannot be persuaded to implement the NEC resolution and respect the decisions of the Constitutional Court in his 2011 and 2014 litigation, the only way forward that will give people of SA hope is to litigate the issue afresh.
The presidency has been furnished with the draft court papers but they are being held back pending the outcome of the interventions and various inputs currently on the table and under discussion. Secure tenure of office is the only binding criterion set by the Court that is still a sticking point.
Glenister has been all the way to the Constitutional Court on three previous occasions in pursuit of securing efficient and effective anti-corruption machinery of state for SA.
The A Team