After years in the making, the structure of the Investigating Directorate Against Corruption has, on 29 August 2023, been published. [ https://www.justice.gov.za/legislation/bills/202308-NPA-Bill.pdf. ] Be afraid, very afraid, that what has been made visible at long last is not the answer to rampant serious corruption with impunity in SA. What is styled as the “NPA Amendment Bill for Anti-Corruption Efforts” was “tabled in parliament after receiving approval from the cabinet on 14 August … subject to a technical amendment on other ad hoc investigative directorates in the future, in line with the cabinet’s direction.” (Whatever that may turn out to mean) The covering media statement, quoted from above, goes on to misdescribe the Investigating Directorate that is the subject of the bill as the “Investigative Directorate” despite the bill repeatedly referring to the ”Investigating Directorate”. Lack of attention to detail is not the only failing.
The bill sets out to establish the “Investigating Directorate against Corruption” (IDAC) which will swallow whole the existing ID, both temporary and created by presidential proclamation, and have its own investigators with powers and functions duly appointed after security screening, set remuneration and conditions of service as well as a complaints mechanism “to deal with complaints of a serious nature” against IDAC personnel.
The bill aims to ensure that the NPA “fulfils its constitutional mandate, to provide, without limiting the investigative powers of SAPS or the Hawks” via “the establishment of IDAC with investigative capacity, to prioritise and to investigate particularly serious criminal or unlawful conduct committed in serious, high-profile or complex corruption, commercial or financial crime.”
The first problem with this formulation is that the constitutional mandate of the NPA does not include investigative functions. It is true that Section 179(2) of the Constitution says that
“The prosecuting authority has the power to institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings.” (Emphasis added.)”
However, in Glenister 1 the Constitutional Court did not buy an argument presaged on the notion that investigations by the Scorpions were constitutionally incidental to the functioning of the NPA and it allowed the government to remove such functions from the NPA.
The government appears to have forgotten this outcome. It is not part of the constitutional mandate of the NPA to investigate crime of any kind. Its constitutional function is to prosecute the criminals.
In Glenister 2, the same court remained agnostic in relation to the location of the investigators of serious corruption, but insisted that they be STIRS compliant (specialised, trained, independent, resourced in guaranteed fashion and secure in tenure of office). The government is at large to make “the reasonable decision of a reasonable decision-maker in the circumstances” when locating corruption investigators in the public administration. It is however bound to be STIRS compliant.
The question which arises now is whether locating IDAC within the broken and dysfunctional NPA is the “decision of a reasonable decision-maker in the circumstances.” Cabinet has had four years within which to gauge the productivity of the ID. In those four years it has not secured the conviction of a single “big fish” from the serried ranks of the corrupt in SA and has managed only 97 dockets. This lack of progress at a time when the Chief Justice has warned that “an army of prosecutors” is required. The failure to extradite the Guptas and the collapse of the Nulane matter call into question the reasonableness of locating the IDAC within the NPA.
The manner in which IDAC is set up is not STIRS compliant. No specialists worth their salt would be seen dead in IDAC. The training the NPA is able to bring to bear is questionable given the track record of the ID. Neither IDAC nor the NPA can be regarded as independent, not in the sense meant in the joint majority judgment in Glenister 2. The DG of Justice is the accounting officer of the NPA; the minister of justice exercises final responsibility over the NPA and the entire operation of the NPA is conducted as a programme within the department of justice. This structure may be suitable for the run of the mill prosecution of ordinary criminals, it is not the right way in which to go about dealing with serious corruption, which is why there is a decade or more of backlog of cases on this kind. This sad state of affairs is due to the failure of government properly to implement the binding STIRS criteria at any time since the demise of the Scorpions in 2009.
Regular budget cuts for the NPA have been the order of the day for years – no provisions in the bill now tabled are designed to guarantee the necessary resources to IDAC and without them it will not be able to function effectively and efficiently as is required by Section 195(1)(b) of the Constitution.
Secure tenure of office is not possible in a structure that is the product of ordinary legislation of the kind now tabled as the answer to the corruption issues in the land. The Scorpions were closed by a simple majority vote in parliament and the new IDAC, if it ever sees the light of day, can be closed in exactly the same way. SA as a law-abiding nation is no better off than it was before the Scorpions were closed. The next feral elite that comes along will be able to shut down IDAC with 50% plus one in parliament. This is not a bill that takes secure tenure of office as seriously as it should be taken.
The new bill does not address the tension between the legislated mandate of the Hawks and the new mandate of IDAC. The Khampepe Commission of Inquiry into the Scorpions gave good advice on this tension which was ignored by government in closing the Scorpions. Instead investigative functioning carried out by the Scorpions was reserved to the SAPS new unit, the Hawks. The NPA lost all investigative capacity until the ID was set up in 2019 illegally and unconstitutionally. It is reasonable to expect the tension to take the form of turf wars between the Hawks and IDAC. Already the ID has been known to shunt unwanted serious investigations, for example of the minister of police’s involvement in those World Cup SAPS HQ leases, off to the Hawks. It is not enough to state blithely that the bill makes all manner of intrusive provisions “without limiting the investigative powers of SAPS or the Hawks” which is the wording of the revised preamble the bill proposes. This structure is a recipe for conflict between the Hawks and IDAC.
One would have hoped that having taken so long, something less underwhelming would have been produced. The underlying ethos of the national democratic revolution shines through in the bill. The desire for hegemonic control of all levers of power in the criminal justice administration is the rationale for the reform suggested by the bill. An independent body of corruption fighters is anathema to government and to those involved in corruption with impunity. Heaven forbid that any well-connected politically exposed person be investigated, arrested, prosecuted and punished.
Despite duly accepted recommendations made by the Zondo Commission, the cabinet persists in cadre deployment of the kind that is both illegal and inefficient. This form of unconstitutional behaviour is bound to inform staff selection for IDAC to replace the all but useless personnel in the ID with their woeful track record of convictions.
The revamped ID will be neither “permanent” (look at the fate of the Scorpions) nor constitutionally compliant, for want of compliance with the STIRS criteria as sketched above.
Ours is meant to be a participative democracy in which civil society makes an active and engaged contribution to law-making. Accountability Now has been making suggestions to government on the proper implementation of the criteria set in binding terms in the Glenister litigation for more than a decade. As long ago as August 2021 (when it became apparent that cabinet was not going to act on a sensible ANC NEC resolution to set up a stand-alone, permanent and specialised entity to deal with serious corruption) Accountability Now suggested reforms that would meet the binding criteria created by the courts. These suggestions are supported by the Defend our Democracy Campaign, the IFP, the churches and Thuli Madonsela. The cabinet has not engaged on the suggestions made, parliament has – but with no follow up in sight. The DA has embraced the ideas put forward and has private members bills in the course of preparation that will see a Chapter Nine Anti-Corruption Commission and a liberated NPA appear, if parliament accepts that Chapter Nine status is the right location for anti-corruption machinery of state.
Sadly, the NPA adopts an agnostic approach, leaving it to politicians to decide its fate. This does not reflect positively on its aspirations to enjoy greater independence. It ought to make its stance known instead of merely “noting” the serious suggestions made in both the DA private members bills and by Accountability Now. The president should sit down and read the submissions in question. They are available for consideration here https://accountabilitynow.org.za/?s=submission+to+the+CRC.
Paul Hoffman SC is a director of Accountability Now and was lead counsel in the Glenister litigation.
30 August, 2023