By Paul Hoffman
It is not for Deputy Justice Minister John Jeffrey, or anyone else in government, to second-guess the binding decision of the highest court in the land when it comes to the establishment of a single agency to combat corruption.
Deputy Minister of Justice and Constitutional Development John Jeffery has taken the trouble to use the columns of Daily Maverick to respond to criticism of the bill which is aimed at introducing the Investigating Directorate Against Corruption (Idac) to the armoury of the National Prosecuting Authority.
While the deputy minister was busy writing his column, Accountability Now made a submission to the Justice Portfolio Committee in the National Assembly which was published by Politicsweb shortly before the piece in Daily Maverick appeared. As the submission is a far more comprehensive document than the article criticised by the deputy minister, most of the answers to the points he raises are in it.
The tests of constitutionality and efficacy in the processes of reform of the capacity of the criminal justice system to deal with serious corruption are not adequate measures if the political will to counter the corrupt is nowhere to be found in the corridors of power in the executive, the legislature and the public administration.
As was pointed out in the last word on the subject in the third Glenister case by Justice Johann van der Westhuizen in his famous “endnote”:
“Corruption threatens the very existence of our constitutional democracy. Effective laws and institutions to combat corruption are therefore absolutely essential. It is the task of the courts — and this court in particular — to ensure that legal mechanisms against corruption are as trustworthy and tight as possible, within the demands and parameters of the Constitution.
“But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people — particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions. Much dedication is required on the part of those handling the tools.
“Of course, the structure of our institutional watchdogs must be made as immune to corruption as possible. But even the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of — and trust in — the office bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible the deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.”
In making the suggestions it has made and putting forward the arguments in support of its suggested Chapter Nine entity, Accountability Now is painfully aware of the need for buy-in from the powerful. Winning the wonderful and well-known Stirs criteria laid down by the majority of the court in Glenister 2 in binding terms was only the start of the battle.
Stirs stands for specialised, trained, independent, resourced and secure in tenure. Weaning those in power off their greed, their own corruption and their overweening desire to exercise hegemonic control over all the levers of power in society is a political matter which involves cultivating the necessary political will required to take the corrosive effects of serious corruption to heart.
As was pointed out by Justice David Unterhalter (then SC, and his learned junior in Glenister 3) in the concluding paragraph of the compilation of essays called “Under the Swinging Arch” (available for free download here):
“The Glenister litigation demonstrates the potency of institutional public interest litigation and the vital and essential role it plays in allowing courts to fulfil their role as guardians of the Constitution and the institutions of democracy. Ultimately, such litigation and the courts’ ability to safeguard the institutions of democracy have their limits.
“Yet, those limits are as nothing compared to the certainty that, absent such litigation and the courts’ steadfast carrying out of their constitutional obligations, South Africa’s constitutional project may long since have been derailed.
“Within that context, the worth of the Glenister litigation is apparent. Mr Glenister and the HSF (Helen Suzman Foundation) played no small part in this. They, together with the courts, have been the agents of the very transformation that the Constitution promised. As American anthropologist Margaret Mead famously remarked, ‘never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.’
“The triumvirate of cases that Mr Glenister has rightly lent his name to, together, if not individually, stand as a testimony to the worth and constitutional necessity of an active citizenry that holds government to the transformative aspirations of the Constitution.”
Jeffery now seeks to reopen the debate that was closed in the opening paragraph of Glenister 3 when then Chief Justice Mogoeng Mogoeng, writing for the majority of the Constitutional Court, came down firmly against the multi-agency approach used elsewhere in the world:
“Corruption is rife in this country and 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 the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
The words quoted above are the binding decision of the highest court in the land. It is not for Jeffrey or anyone else in government to second-guess the words quoted from the judgment of the Chief Justice: ours is the single agency approach.
Accountability Now has written several times to the Chief State Law Adviser to ascertain whether the necessary certification of the IDAC bill is intact. The deputy minister claims it has been certified. This query remains unanswered:
“We write to enquire whether the said bill has been certified as constitutionally compliant by your office in terms of the obligations of the Chief State Law Adviser as they relate to the introduction of new legislation?
“If so why?
“If not, why not?
“We respectfully submit that if the bill has not been so certified, it ought not to be for want of compliance with the criteria laid down in binding terms by the Constitutional Court in the decision of its majority on 17 March 2011 in ‘Glenister 2’.
“The Honourable Minister of Justice, Ronald Lamola, has defended the constitutionality of the bill in his media release announcing the bill in which he stoutly, but misguidedly, insists that the Stirs criteria set in the ‘Glenister’ case have been met. He has tried, unsuccessfully in our respectful view, to justify his stance in an interview he gave Chris Barron of the Sunday Times published last Sunday.
“We contend that the minister has misconstrued the applicable judicial precedent that is binding on Cabinet. We respectfully suggest that the correct type of reform is foreshadowed in our submission made to Parliament on 17 March 2023 which you can review here.
“The private members’ bills of the Shadow Minister of Justice, The Honourable Glynnis Breytenbach, which seek to establish a new Chapter Nine Anti-Corruption Commission, are also constitutionally compliant, unlike the IDAC bill.”
If Cabinet is able to devise a constitutionally compliant alternative to the Idac Bill, it should do so. The requirements of the law have been in place since 2011, the political will to meet those requirements has been lacking since the commencement of what the current president calls “the nine wasted years” of the Zuma presidencies. The political will to get real about reform of the capacity of the criminal justice system in the post-Zuma era is also as lacking, just as it was during his time in office. The ID and Idac are little more than window dressing.
It is not beyond the wit of Parliament to process the two private members’ bills being piloted by the shadow minister of justice through the legislature. Even taking into account the need for some constitutional amendments, the process can be completed within six months, which means it will be a parting gift to the nation from the current Parliament.
To reach that happy state, the political will to do the necessary work has to be generated within the ranks of the ANC caucus in Parliament. It is not as though there is no appetite for it, given the resolution of the NEC of the ANC taken as long ago as August 2020. The executive and legislative branches of government have had the Accountability Now suggestions for reform since August 2021.
While Jeffrey obfuscates and remonstrates, it is unlikely that the necessary political will can be generated. So much corruption with impunity in high places implicating so many powerful people will see to that.
The alternative is to litigate the signal failure of government to implement the Glenister criteria properly. That will show the ANC up in a bad light in an election year. The choice to grow and develop the necessary political will is that of the ANC, not the Cabinet, not the deputy minister and not those in high office who are corruptly thwarting the development of the necessary political will. DM
Paul Hoffman SC is a director of Accountability Now. He was counsel in all three Glenister cases.