By Paul Hoffman

If any other political party in the Government of National Unity were to promote unconstitutional notions that ignore the binding nature of court judgments and overlook the need for accountability under the rule of law, a tsunami of opprobrium would follow.

On 22 August 2024, the acting national spokesperson of the ANC, Zuko Godlimpi, whose day job is Deputy Minister of Trade and Industry and Competition, issued a media statement under the heading: “The ANC welcomes the permanent establishment of the Investigating Directorate Against Corruption (Idac)”.

Should the ANC persist in its welcoming attitude toward Idac as outlined in the statement, it runs the risk of sabotaging the Government of National Unity (GNU) and possibly precipitating an early election.

It is also a little rich for a political party described by its current leader as “Accused Number One” in the context of the State Capture corruption that is still ongoing to pretend it is involved in a “comprehensive and sustained fight against corruption”.

Law is clear

The law and the Constitution are clear on the topic of countering corruption. The Constitutional Court has decided in terms that bind the state that the Constitution means “our law demands a body outside executive control to deal effectively with corruption”.

Idac is not such a body. Fealty to constitutionalism and the rule of law both suggest that Idac should be scrapped immediately.

In order to reach its definitive and precedent-setting conclusion, in the case now known as Glenister 2, our highest court reached deep into the heart of the Constitution and drew on the duty of the state to uphold the human rights guaranteed to all in the Bill of Rights (which is impossible to do if public money is looted relentlessly and wholesale).

The court also cited the duty to implement the international anti-corruption treaty obligations of the state which require the establishment and maintenance of an adequately independent entity capable of effectively countering the corrupt. Idac is neither independent nor will it be effective.

The court went further, by identifying the criteria by which the anti-corruption entity should be known in SA. These have been dubbed the STIRS criteria, a reference to:

• Specialisation in the sense of being dedicated to the issues around corruption to the exclusion of all else;
• Training for recruits to empower and enable them to match the wiles of cunning corrupt operators;
• Independence of the institution at both structural and operational levels to ensure that political influence and interference are not brought to bear on corruption-busters and that they are able to function without fear, favour or prejudice;
• Resources that are adequate to the reasonable needs of the anti-corruption entity and are guaranteed so that their non-payment cannot be used as a means of stifling their functioning and performance; and
• Secure tenure of office for all anti-corruption personnel so as to remove the threat of dismissal or disbandment for going after the “big fish” who currently enjoy impunity and an informal type of immunity against prosecution.

Dissolution of Scorpions

Recall what happened and why with former NDPP Vusi Pikoli and the entire Scorpions unit of his NPA which was dissolved immediately after Jacob Zuma came to power in 2009.

Had the Scorpions enjoyed the protection of Chapter Nine status, they would still be in existence today and the entire trajectory of State Capture might have been less stellar.

The ANC has shown no appetite for properly implementing the judgment of the Constitutional Court, except fleetingly in 2020 when its NEC instructed Cabinet in terms that approximate the STIRS criteria.

The NEC’s instruction has been ignored by the ANC Cabinet which instead put its energy into smoke-and-mirrors governance by creating Idac as what the then Deputy Minister of Justice, John Jeffrey, described as a “stop-gap” measure rather than in the glowing terms contained in the ANC’s statement of 22 August 2024, which falsely suggests permanence for the new Idac entity within the NPA.

Should Zuma, against whom charges are still pending, or his ilk return to a position in which they can govern SA, the Idac will be closed down as easily as the Scorpions succumbed.

Letter from Accountability Now

On the day that the president signed the Idac bill into law, he was sent an email first thing in the morning by Accountability Now, urging him not to sign what is palpably an unconstitutional piece of legislation. The email set out the shortcomings of Idac in some detail as follows:

“Here is why both Idac and the DSO (Scorpions) [its very similar predecessor which was dissolved in 2009 at the behest of Jacob Zuma, who was charged in 2007 with corruption, embezzlement and money laundering] do not adequately comply with the STIRS criteria laid down in terms that bind you and government:

“Both are creatures of an ordinary statute passed by a simple majority in Parliament.
(b) Both are vulnerable to dissolution at the instance of a simple majority which wishes to repeal the said legislation.
(c) Both are located as a unit within the NPA and not within an independent structure such as the judiciary and Chapter Nine Institutions.
(d) The NPA is not independent and has been so badly gutted by State Capture that it will take years to recover from the ravages of the saboteurs deployed in its ranks to protect the corrupt.
(e) The NPA is operated as a programme within the Department of Justice, not independently.
(f) The NPA is subject to the minister of justice having final responsibility over it in terms of C179.
(g) The minister must concur in all prosecution policy, also in terms of C179.
(h) The NDPP and other leadership of the NPA are executive appointees, the former in your sole discretion.
(i) The accounting officer of the NPA is the director general of justice who is not even a member of the NPA.
(j) Due to its gutted state, the NPA will be incapable of recruiting the trained specialists needed to populate Idac. They will baulk at possibly facing the same fate as the DSO.
(k) The NPA is grossly underfunded due to the ravages of State Capture and the general state of the economy, which corruption has largely caused.”

Needless to say, there has been no official response to the points raised in the email quoted from above. Nor does the statement of the ANC put out by Zuko Godlimpi traverse any of the points raised with the president in the email quoted from above.

On the contrary, and in the context of the inability of the NPA to secure access to the treasure trove of Zondo Commission documentation, the new Minister of Justice, Thembi Simelane, has let it be known that she would like to think that the NPA is part of her department of state.

She is quite right about this description as most of the points put to the president above illustrate. The difficulty is that in law, and constitutionally speaking, the anti-corruption entity has no place in the NPA, no independence under the NPA, and no security of tenure superior to that of the Scorpions. Indeed, Idac is, legally speaking, indistinguishable from the Scorpions whose fate was sealed by the vote of a simple majority in Parliament.

Chapter 9 architecture

The best strategy to overcome this weakness is to house the anti-corruption entity in the Chapter Nine architecture of the Constitution. No Chapter Nine body reports to the executive, and the closure of such a body requires a two-thirds majority, unattainable without cross-party cooperation both in the seventh Parliament and in the foreseeable future.

The light at the end of the tunnel for Idac is the headlight of the DA’s oncoming train, its long-awaited Chapter Nine Anti-Corruption Commission. In the form of a private members’ bill punted by former shadow minister of justice, Glynnis Breytenbach, the matter will be debated in Parliament shortly. Should it not enjoy the support of the ANC, the bill will fail.

It remains to be seen whether the failure of the Breytenbach initiative will bring down the GNU. Certainly, if the ANC does not support her initiative, there will be questions regarding its seriousness after it invited all parties to join the GNU on the basis of fealty to the Constitution and the rule of law.

There is no doubt that the Glenister 2 findings are binding and that they have not been properly implemented. It is also obvious that the Idac legislation is unconstitutional for its want of compliance with the court judgment which binds the government in terms of section 165(5) of the Constitution.

Godlimpi’s predicament

Spare a thought for Godlimpi.

He was not a member of the NEC in 2020 and may not know much about its support for constitutional compliance on SA’s anti-corruption entity nor about the unexplained failure of Cabinet in the sixth Parliament to give effect to the instructions given to it by the then NEC, the highest decision-making body in the ANC between conferences.

He ought, however, to know about the recent commitments to accountability that have been made by Nomvula Mokonyane and the warning by David Makhura (both senior members of the NEC of the ANC) that the ANC must “renew or perish”. The shrill and shallow ANC support for Idac suggests that the latter option offered by Makhura has been accepted by those responsible for concocting the media statement put out by Godlimpi.

On his Instagram page, Godlimpi highlights his attachment to surfing the waves “as they come”, and proclaims: “I’m just winging it.”

Indeed. He is “winging” support for the palpably unconstitutional anti-corruption body called Idac in a way that imperils the future of both the GNU and the ANC itself.

If any other political party in the GNU were to promote unconstitutional notions that ignore the binding nature of court judgments and overlook the need for accountability under the rule of law, a tsunami of opprobrium would follow.

The sheer infamy of the content of the media statement put out by Godlimpi calls for swift corrective action by the ANC. Sentient South Africans are holding their breath for the correction. If no correction is forthcoming, litigation will surely follow.

The ANC and the DA are both in the GNU; the ANC should get behind Breytenbach’s initiative now. The ANC’s support of the Idac is the political equivalent of the minister of sport insisting that the national netball team take the field at Ellis Park and Cape Town Stadium for the upcoming rugby matches against the All Blacks.

Luthuli House needs to repudiate the nonsense spouted in the media statement. DM