Opinionista • Paul Hoffman • 25 June 2019 • Daily Maverick
If, as appears to be the case, neither the NPA nor the Hawks have the functional and structural capacity to deal with grand corruption, then the obvious solution is to create a constitutionally compliant entity that is able to do so.
While it is impossible to disagree with the proposition that the Hawks have been all but useless at investigating, preventing and combating grand corruption (to such an extent that many of them, including those in leadership positions, are part of grand corruption), simply disbanding them may create more problems than it will solve. Throwing the baby out with the bathwater has never been a wise move.
The Hawks’ blind spot, due to the carefully gerrymandered structuring and operational limitations, is countering grand corruption. In other respects, they are functional and should be allowed to continue to do the work they do. Infestation with corrupt operatives or management applies to much of the public administration; it is not adequate grounds for closing down the Hawks.
Before the Hawks were established, corruption was investigated and prosecuted by the NPA via the Scorpions’ “troika” approach. This worked so well that the ANC resolved to disband the Scorpions in December 2007. Because the ANC commanded a simple majority in Parliament, the Scorpions, a mere creature of an ordinary statute, were vulnerable to being dissolved at the instance of that majority. This unfortunate ending came to pass in 2009 after a battle royal in the National Assembly that saw the opposition united in its disapproval of the ANC’s move. The vulnerabilities caused by the Scorpions’ lack of security of tenure of office was the Achilles heel of the unit.
Dissolving the Hawks will not address that problem. The mischief to be addressed is the failure, during the Zuma years, of government to take seriously the binding nature of the requirements for the anti-corruption machinery of a state that were laid down by the Constitutional Court in the Glenister litigation.
In particular, the desire of the ANC, in pursuit of the agenda of its National Democratic Revolution, to exercise its own “hegemonic control” over the levers of power in society (of which the anti-corruption machinery is but one), meant that the ANC could not, and has not ever, countenanced the replacement of the Scorpions with an adequately independent anti-corruption entity of the kind envisaged by the courts. An entity free of executive control, enjoying the type of security of tenure of office that does not make going after the “big fish” of grand corruption, State Capture and kleptocracy a career limiting move.
Everyone, apparently including President Cyril Ramaphosa, is in agreement that the Hawks have not been a success as corruption-busters. That is not to say the Hawks have completely failed in their tasks in respect of priority crimes. The Hawks are not a specialised body, despite the courts repeatedly finding that specialisation is a prerequisite for constitutionally compliant anti-corruption machinery. Indeed, their official name betrays their purpose: it is the “Directorate for Priority Crime Investigation”.
Priority crimes cover a multitude of sins, from rhino poaching to child trafficking. As long as the politically well-connected are not under investigation, the Hawks are able to do good work and should be allowed to continue to do so. Their bleak record in dealing with grand corruption which involves the politically well-connected is the mischief that needs to be addressed if reform is to work successfully.
It is not only the Hawks that have proved to be dysfunctional at tackling grand corruption. The ability of the prosecution service to successfully bring those guilty of grand corruption to book is open to serious doubt, not only objectively speaking, but also, completely candidly, by the new leader of the NPA, Advocate Shamila Batohi, our national director of public prosecutions (NDPP). She doubts she commands the depth of talent necessary to prosecute the corrupt successfully.
It will be recalled that in 2009 the investigative functions of the NPA were given to the Hawks, as regards corruption, while the NPA retained the prosecutorial functions. By splitting the work of the Scorpions between the NPA and the Hawks the Zuma faction was able to provide itself with a second layer of protection against prosecution. This second prosecutorial layer was deployed with good effect to keep Jacob Zuma himself out of the dock and in the Union Buildings through the lamentably asinine decision of the then acting NDPP, Mokotedi Mpshe, to withdraw charges against Zuma. This occurred after the NPA had already had a dry run of the case against Zuma in its successful prosecution of his former financial adviser Schabir Shaik, who should have been charged with Zuma.
How then is the mischief, properly identified, to be addressed in a successful and constitutionally compliant manner? Clearly, the replacement of the Hawks should be a single entity that deals with grand corruption within one structure, like the Scorpions of old did. The separation of investigative capacity and prosecutorial function should end. Security of tenure, independence, proper resourcing and training are all required in terms of the criteria laid down by the courts, but were largely ignored by the Zuma administration.
Will it work to transfer the Hawks’ anti-corruption functions to the NPA? The NDPP does not think so and has called for an audit of the long-outstanding corruption cases that the NPA has allowed to go ice-cold on its captured back-burner. The leadership of the NPA in the Zuma era was as thoroughly captured as the leadership of the Hawks. Think Nomgcobo Jiba and Lawrence Mrwebi.
It is no panacea to give anti-corruption work to the NPA or to the Anti-Corruption Task Team, an abomination of an organisation which has no statutory or constitutional mandate and appears to have been brought into existence by Zuma to manage grand corruption in a way that ensured that no one important was ever held to account.
The Hawks, as a police unit, clearly have no capacity to prosecute the corrupt; their anti-corruption functions are limited to the prevention, combating and investigation of cases of corruption.
If, as appears to be the position, neither the NPA nor the Hawks have the functional and structural capacity to deal with grand corruption, then the obvious solution is to create a constitutionally compliant entity that is able to do so. There are plenty of investigators within the Hawks who are worth their salt and a great deal of expertise in the NPA that lay dormant in the Zuma era, due to manipulation of the criminal justice administration to facilitate State Capture and keep the kleptocrats safely away from facing justice.
How then is the new entity to enjoy the security of tenure of office in the manner contemplated by the courts? How, in short, is it to be insulated from suffering the same fate as the Scorpions?
The answer is to be found in section 74(3) of the Constitution which contemplates a special two-thirds majority for amending most provisions of the Constitution, and, for present purposes, this rule includes the provisions of Chapter Nine. This means that the entity designed to take over the anti-corruption work of the Hawks and NPA, insofar as grand corruption is concerned, ought to be housed in Chapter Nine (where the auditor-general and the public protector are already located) to afford it the protection against closure which these institutions already enjoy.
In effect, any government desirous of raping the criminal justice system in the way the Zuma administration did, will have to muster a two-thirds majority in Parliament to pull it off. The ANC has only 57% of the seats in the National Assembly, which would render the new body immune to attack by it alone. All of the opposition parties are expressly in the strong anti-corruption camp, so the prospect of finding allies to shut down the new body is non-existent.
By taking on, after careful vetting, the best of the talent available in the NPA and the Hawks, it will be possible to kick-start the anti-corruption work of the State far more quickly than would be the case should the government opt to re-capacitate the NPA and the Hawks. The business of sorting out their respective dysfunctionality is a task that will take years, but it is also one that will be made immeasurably easier if the work of countering grand corruption is taken away from both the Hawks and the NPA.
It is also urgent that steps be taken soon to recover or at least freeze the loot of State Capture: the longer this economically vital work is delayed, the less loot will be recoverable.
Dealing with common criminals is far easier than with those involved in grand corruption. The Hawks and NPA will be able to do so without being preoccupied with grand corruption. The fact that people in the Hawks and NPA are, or have been involved in grand corruption as perpetrators, is another good reason to create a new entity of the kind the Constitutional Court had in mind in March 2011 when it handed down its most seminal Glenister decision.
Those hoping that the Hermione Cronjé Investigative Directorate in the NPA is the magic bullet solution to seeing off rampant grand corruption must curb their belief in magic. The directorate is the creation of the president, its mandate is determined by him and its duration of activities is entirely within his discretion. If, as seems possible, that directorate is called upon to investigate the suspicions of money laundering that the public protector harbours against the president, he is at liberty to close the directorate down at the stroke of his pen. If however, a new Chapter Nine institution, let’s call it “the Integrity Commission”, is given the work of investigating and prosecuting corruption in high places, it cannot be closed down without securing a two-thirds majority in Parliament.
How is the political will to form the Ch9IC (Chapter Nine Integrity Commission) to be generated? Clearly, the mindset of the ANC favours executive control of all the levers of power in society, so its default position is to resist the establishment of a genuinely independent body. Where such bodies exist (Reserve Bank, NPA, Chapter Nine institutions) by constitutional design, the ANC tendency is to find other ways to exercise control via cadre deployment or various nefarious means.
The ANC leadership has to be persuaded that its own best interests are served by setting up the Ch9IC. Re-electability and public pressure is the name of the game. The fact that without a Ch9IC, the corrupt are winning and dragging the state towards failure via investment boycotts and ratings downgrades ought to straighten the backs of those who want to create jobs, reduce poverty and promote the achievement of equality. These are all stated SONA objectives that will be unattainable if corruption continues as it did during the “wasted Zuma years”.
None of these felicitous outcomes are possible while SA remains a gangster state; to achieve them a necessary first step is to replace the anti-corruption work of the Hawks with Ch9IC Eagles. After all, Eagles fly higher, see further and go after bigger prey than the Hawks have ever done. Civil society, the faith-based communities, the loyal opposition, the professions, trade unionists, the worlds of business and academia should all be clamouring for the government to bring on the Eagles. Disbanding the Hawks entirely is not enough to address the mischief at hand, and is not necessary either. DM