By Paul Hoffman
10 Nov 2022
Paul Hoffman SC is a director of Accountability Now.
We all know what happened to the Scorpions. Repeating the mistakes that rendered the Scorpions so vulnerable to closure is not good governance. Hence the advocacy for the much more secure-in-tenure Chapter 9 status for a new anti-corruption body.
0:00 / 9:21BeyondWords
Albert Einstein, originator of the theory of relativity, is often cited as saying things he never said. One of them, popular with politicians and political commentators, is described in serious research by Sarah Pruitt as follows:
“‘The definition of insanity is doing the same thing over and over again and expecting different results.’ A favourite of politicians (and pretty much everybody else), this quote has been wrongly attributed to Benjamin Franklin as well as Einstein, but there’s no evidence either of them said it.
“The Ultimate Quotable Einstein, an authoritative compilation of his most memorable utterances, identified the quote as a misattribution, and mentioned its use in the 1983 novel Sudden Death by Rita Mae Brown.
“On his website, Quote Investigator, [Garson] O’Toole traced the link between insanity and repetition back to at least the 19th century, but noted its use in a Narcotics Anonymous pamphlet as well as novels (including Brown’s), TV shows and various other sources.”
Sometimes “stupidity” is substituted for “insanity” in the misquoted sentence.
In my capacity as a director of Accountability Now, I frequently advocate the establishment of a new Chapter 9 institution that, so it is contended, ought to be established with a mandate to prevent, combat, investigate and prosecute serious corruption.
I have done so in court, in the media, in Parliament and in correspondence with relevant members of the executive branch of government and with Nacac (the newly minted National Anti-Corruption Advisory Council), among others.
The purpose behind the pertinacity is to assist in creating and building the political will necessary to encourage suitable reform of the criminal justice administration in SA so that the current lack of an effective and efficient anti-corruption entity is properly addressed in lawful and constitutionally compliant fashion.
I recently wrote a letter to the editor of a daily newspaper on the topic. It was given the accurate headline, “State obliged to create independent anti-corruption entity.”
In response, my namesake, Paul Kearney, a frequent commentator in the media, wrote back:
“Paul I admire your tenacity but your repetition of suddenly expecting the current ANC regime to implement the reforms you suggest is starting to sound like Einstein’s definition of insanity. Only one hope; ANC out.”
I plead guilty to the accusations of tenacity and repetition; both are required to build the necessary political will that precedes suitable reform of the law.
This approach is preferable by far to the alternative, which is to litigate in the public interest to achieve proper implementation of the binding decisions of the highest court in the land.
Litigation need only be resorted to when it becomes clear that those in positions of authority and those tasked with advising government on the topic are unable to bring themselves to acknowledge that the current system is not compliant with the law as laid down in the Glenister litigation and that proper compliance is what is required if the country is ever going to deal with the scourge of industrial-scale corruption in high places.
The advocacy of reform of the criminal justice administration to so comply is not a sudden expectation. It ought to be the expectation of everyone that the government will comply with the law as laid down by our highest court. The government was a party to the litigation brought in the name of Hugh “Bob” Glenister and as such is constitutionally bound by its orders and decisions under section 165(5) of the Constitution.
Accountability Now has been advocating the necessary reform since 2012, which is hardly sudden. In effecting the reform required, government is obliged to make “the reasonable decision of a reasonable decision-maker in the circumstances”, as the court put it.
Reform is needed not because Accountability Now says so; it is because the court has so decided.
Currently, Cabinet is toying with the idea of upgrading the Investigating Directorate (ID) of the National Prosecuting Authority (NPA) to clothe it with permanence. The National Assembly, on the other hand, has, via its Constitutional Reform Committee, unanimously resolved in June 2022 to call on Accountability Now to make submissions to it on the reforms it advocates.
The written parts of the submissions, including drafts of the necessary constitutional amendment and the enabling legislation, were made in August 2022 and a date for making the oral presentation is awaited. Nacac’s chair has also indicated willingness to engage with Accountability Now on the topic.
The upgraded ID that Cabinet has in mind will be indistinguishable – structurally and operationally – from the Directorate of Special Operations (Scorpions), which was also an anti-graft unit within the NPA.
We all know what happened to the Scorpions. Repeating the mistakes that rendered the Scorpions so vulnerable to closure is not good governance. Hence the advocacy of the much more secure-in-tenure Chapter 9 status.
The decade-long campaign by Accountability Now has not gone unnoticed. In a radio interview she gave upon exiting the Office of the Public Protector, Professor Thuli Madonsela gave it her endorsement, as did Archbishop Desmond Tutu.
The massive Defend Our Democracy campaign has called on civil society to back the Accountability Now campaign, which has long been supported in Parliament by the IFP. This year, the DA has also come around to supporting the campaign with its own take, and a private members’ bill, on how the envisaged Chapter 9 institution should be structured.
The Catholic Bishops’ Conference has also given its blessing to the Accountability Now campaign. Anglican Archbishop Thabo Makgoba is the patron of Accountability Now.
The comment by Paul Kearney cited above is based on a widely accepted false premise. In constitutional democracies around the world, governments cannot do as they please. They are constrained by the supremacy of the Constitution. Any conduct on their part and any new laws which do not pass constitutional muster are invalid.
The ANC cannot do as it pleases; it has to operate within the confines of the Constitution.
The highest court in the land has ruled that the human rights obligations of the state, expensive as they are, require the government to put in place an adequately independent anti-corruption entity that is able to counter malfeasance effectively and efficiently.
The court also relies on the international obligations assumed by South Africa in the treaties on the topic, to which it is a party. At present there is, for practical purposes and as a result of the ravages of State Capture, no such entity – hence the campaign to establish one.
Even within the ANC, there is support for the stance of Accountability Now.
Look no further than the resolution of its National Executive Committee of 4 August 2020 in which Cabinet is instructed to establish a new body that seems remarkably similar in its characteristics to what Accountability Now advocates.
Also bear in mind that the majority of the members of the Constitutional Review Committee are senior ANC parliamentary caucus members.
The voting public of South Africa should insist that their political party or independent parliamentary candidate of choice should endorse the urgent establishment of the new anti-corruption entity. It is in this way that the advocacy can generate the political will required.
Because South Africa is a nation of laws, and because the rule of law is regarded as supreme in the South African Constitution, it is possible to litigate in the public interest to secure proper compliance with the criteria set in the Glenister litigation. It should not be necessary to do so.
The ANC knows that the report of the State Capture Commission points in its direction in identifying the culprits, and that it needs to do something spectacular to regain the confidence and the votes of those who have withdrawn their support on polling day, if it is to avoid being consigned to the opposition benches in 2024.
It is incumbent upon civil society to keep up the pressure on all political decision-makers to do the right thing.
Paul Kearney may be comforted to learn that he is not alone in questioning my sanity.
Years ago, when Jeremy Gauntlett SC still harboured ambitions for a life on the Bench, a “Hitler in the bunker” spoof was concocted by idle junior members of the Cape Bar in which Hitler suggests that the assistance of “that madman Hoffman” should be enlisted to reverse the failure of Gauntlett’s candidacy.
Unfortunately, I have been too preoccupied with corruption-related matters to make time to assist. DM