Upgrading Investigating Directorate to permanent status takes anti-corruption fight into a dead end

by | Jul 25, 2023 | Chapter 9, General | 0 comments

By Paul Hoffman

24 Jul 2023
Chief Justice Raymond Zondo says that ‘an army of prosecutors’ is needed to address what he unearthed during his inquiry. The problem is vast and potentially fatal to the democratic project in SA. But any new anti-corruption investigating body must have security of tenure.

Justice Minister Ronald Lamola has announced that next month Cabinet intends publishing for public comment draft legislation aimed at upgrading the Investigating Directorate of the National Prosecuting Authority to what he calls “permanent” status: a misstep of note that will take anti-corruption efforts in SA down a long cul-de-sac.

Shortly before the minister’s announcement, the shadow minister of justice, DA MP Glynnis Breytenbach, told a Cape Town Press Club lunch that a pair of bills — which may emerge as committee bills or even, ideally so, as a departmental effort, but, at the least, as her private members bills — are in the process of being given their final tweaks prior to publication.

They envisage the establishment of an all-new Chapter Nine Anti-Corruption Commission (C9C) to prevent, combat, investigate and prosecute all forms of serious corruption. The C9C will report to Parliament and not to the executive, as do all the other Chapter Nine Institutions, and will not be part of the NPA.

Her announcement is good news for the people of South Africa, especially the poor and constitutionalists. Once implemented, the C9C will enhance the rule of law. Loot will be raked back and the impunity of the corrupt will end.

Breytenbach has told Lamola that his plan is unconstitutional and that her party will seek to impugn it if the legislation it contemplates ever sees the light of day.

A clash between the executive and legislature looms, particularly if ANC MPs prefer the C9C reform to the tinkering Lamola proposes, if he is so ill-advised as to persist in it.

Three of the constitutional functions of Parliament are to ensure that the legislation it passes is properly implemented; it exercises oversight over the executive; and it also initiates legislation.

If the Lamola plan does not find favour with Parliament, the necessary ID legislation will be stillborn. Luthuli House may however instruct ANC members of Parliament, including those who favour the Breytenbach committee bills, to toe the party line and vote to pass the misguided Lamola plan.

The ANC commands a simple majority in the current Parliament, but may not in the next. Whether ANC MPs are prepared to jeopardise their prospects of re-election by toeing the executive line Lamola proposes is an open question. It is certain that the constitutionality of the “permanent” ID will be challenged in public interest litigation likely to end in the Constitutional Court.

If the judiciary, as it did in the Glenister litigation, sends the politicians back to the drawing board, years that SA can ill afford will be lost in the crucial battle against rampant serious corruption that “threatens all that we hold dear” (as our highest court put it) in the not-so-new South Africa. If Lamola still thinks, as he did in February 2023, that he can justify his plan on the strength of what fell from the lips of Chief Justice Sandile Ngcobo in his dissent in Glenister 2, the learned minister is both sorely mistaken and in dire need of sound legal advice.

In the Glenister litigation, the courts ordered that an effective and efficient anti-corruption entity of adequately independent structural and operational kind be legislated for and established to deal with corruption “before it graduates into something terminal” as the majority put it, with urgency, in the last Glenister case nine years ago. The court orders have not been properly implemented and corruption remains rampant in SA.

The puny efforts of the Hawks, on the investigative front, and the NPA, on the prosecution front, have left SA with a backlog of corruption cases accumulated and accumulating at an alarming rate, as noted by the State Capture Commission of Inquiry.

Chief Justice Raymond Zondo has remarked that “an army of prosecutors” will be required to address what he unearthed during the inquiry. He might have added that specialists capable of standing up to the grizzled silks, whom the corruption accused invariably engage, will be the appropriate recruits for that army which has still to be mustered more than a year after the final tranche of his report was published.

The Commission barely scratched the surface of corruption in SA in four years of hard work. The problem is vast and potentially fatal to the democratic project in SA. It is no wonder that the Chief Justice believes democracy is at risk in SA.

Breytenbach’s C9C, based on suggestions made by Accountability Now, versus Lamola’s permanent ID are — virtually simultaneously — being introduced as the appropriate way forward to implementation of the binding criteria set in the Glenister litigation and to acting on one of the major recommendations of the Zondo Commission.

Stirs criteria

For present purposes, three of the five Glenister Stirs criteria bear mentioning — specialisation, independence and security of tenure of office.

The specialists who enjoyed such stellar success in the Scorpions have by and large left public service for greener pastures in the private sector and will not return to the NPA after the shabby treatment they received when the Scorpions were disbanded.

The ID has insufficient specialists, both as regards quality and quantity. It has no hope of recruiting the many needed, and will take years to “grow its own timber”. The C9C has much better prospects of recruiting the finest personnel still in the NPA and those that left it for the private sector and elsewhere. Prosecuting the corrupt successfully brings job satisfaction that is rare in other professions because it serves the public interest so profoundly.

As for independence: the C9C, like all Chapter Nine Institutions, will enjoy constitutionally guaranteed independence while the revamped ID will remain part of the NPA. While the Constitution stipulates that the NPA must act “without fear, favour or prejudice” it nevertheless falls under the “final responsibility” of Lamola and has its purse strings pulled by his director general.

These are not the features of which the type of independence — the freedom from executive interference, influence and impedance — that the courts require, is made. The C9C will report to Parliament only, while the NPA is run as a programme of the Department of Justice.

Secure tenure of office is an obvious requirement — one need simply ask any former Scorpion to expatiate, if the obviousness is elusive. No head of the NPA has served a full term of office since its establishment. Going after crooked politicians and their associates (like Jackie Selebi) tests security of tenure to a limit that was totally exceeded after Travelgate and the conviction of Schabir Shaik for corrupting a certain Jacob Zuma.

The new ID will be part of the NPA. QED. It will not be independent.

Flightless hawks

After the demise of the Scorpions, the investigation of corruption was handed over to the police’s new Hawks unit while the NPA retained its prosecutorial role. These changes were legislated. The new system did not take root and has not worked. The Zondo Commission report speaks volumes on this topic.

The inability of the Hawks to investigate serious corruption meant that trial-ready dockets became scarce and convictions even more scarce. A successful investigation by the police must precede any successful prosecution. When it comes to countering serious corruption, a specialist investigation must precede a specialist prosecution.

On taking office, President Cyril Ramaphosa realised that the Hawks are not up to the task of investigating serious corruption. They manage other priority crimes which fall within their mandate, but have never landed a corrupt big fish, not even one of the over 1,400 named and shamed in the Zondo Commission report.

Without due regard to the legislated separation of functions, Ramaphosa proclaimed the ID, unconstitutionally so, in the hope that it would be able to cure the dysfunction in countering corruption.

The notorious Guptas have been allowed to leave the country and have slipped through the ID’s fingers in the ensuing extradition proceedings. The Nulane case, in which all of the accused were either discharged at the end of the state’s case or acquitted, is another indication of ongoing dysfunction that will not be cured by making the ID a permanent fixture within the hollowed-out and saboteur-infested NPA.

Both parliamentary oversight of the executive and its duty to ensure the proper implementation of laws it passes should ensure that Lamola’s plan, which he does not appear to have run past Professor Firoz Cachalia and his colleagues at the National Anti-Corruption Advisory Council, comes to nought.

Parliament has the power to initiate legislation. It is urgent that the two bills for the C9C be processed and passed in the current Parliament. The jobs of many ANC backbenchers depend on it. No politicians who are soft on corruption can reasonably expect to be popular with the voters of SA in the year 2024.

Countering the corrupt successfully depends upon full implementation of the Glenister criteria, which criteria the law requires. These criteria have been honoured in the breach for too long.

The reason for this failure is to be found in the ANC’s striving for hegemonic control of all the levers of power in society. Those who counter corruption control an important lever which, independently operated, can be used on errant politicians and their associates in questionable activities.

The doctrine of the separation of powers, the rule of law, the duty to respect and obey orders of court and the presence of checks and balances on the exercise of power may be inimical to hegemonic control, but they are the stuff of constitutional democracy.

May constitutionalism prevail with the establishment of the C9C and the binning of the “permanent” ID whose tenure would be no different to that of the Scorpions unit which was also supposedly permanent. It ought to be common cause among all parliamentary representatives that the existing laws are not working to address the mischief at which they are aimed and that they require urgent replacement by the establishment of the C9C.

The swift passage of the Breytenbach bills should enjoy cross-party and unanimous support that presages a decisive confrontation with the corrupt who so bedevil secure peace, sustainable progress and shared prosperity in South Africa. DM

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