Paul Hoffman SC is with Accountability Now, an organisation which describes itself as being “devoted to ensuring the rule of law is upheld and enforced for the good of all by ensuring that governments, parastatals and the private sector are held to account.” The organisation has created a Chapter 9 institution. Hoffman explains what exactly a Chapter 9 institution is. “Traditionally, the way government’s are organised is like a three-legged pot. Legislature, executive and the judiciary. In SA, when we converted from parliamentary sovereignty to the constitutional democracy under the rule of law – that is currently in place, the founders thought that it would be proper to create a fourth leg on the pot which is the leg created by Chapter 9 of The Constitution. Chapter 9 is a reference to the chapter under which, at the moment, there are six institutions that, essentially, exist to bed down democracy.” – Jarryd Neves
Paul Hoffman on Accountability Now:
I got a bee in my bonnet about accountability in 2008 and decided, with one other person, to set up what is now a small NGO that runs on the smell of an oil rag. We have mainly concentrated on exacting accountability [and] promoting responsiveness through confronting corruption in South Africa. We’ve had quite a lot of success and we were involved in the Glenister litigation in the bread cartel case and in bringing about that useless commission of inquiry into the arms deals.
On picking battles against corruption:
[We pick our battles] quite carefully, because the main source of income of an organisation like this is successful cost awards. When people ask me who pays the bills at Accountability Now, I can honestly and truthfully answer, “Jacob Zuma with your money,” because we always beat him when we take him to court.
On what a Chapter 9 institution is:
Traditionally, the way that modern governments are organised is on a three-legged pot – a legislature, an executive and the judiciary. In South Africa, when we converted from the parliamentary sovereignty of the apartheid years to the constitutional democracy (under the rule of law that is currently in place), the founders – very wisely – thought that it would be proper to create a fourth leg on the part, which is the leg created by Chapter nine of the Constitution.
Chapter nine is a reference to the chapter under which, at the moment, there are six institutions that essentially exist to bed down democracy. You could call them the integrity branch of government – with a small ‘i’ – because we have appropriated the capital ‘I’ Integrity Commission for the anti-corruption body that we have in mind. We chose the more positive name of an Integrity Commission – which we would like to see become the seventh Chapter nine institution. While they’re amending Chapter Nine, they may consider folding the Gender Commission and the Commission with a long name – culture, language, religion – into the Human Rights Commission.
In these times of austerity, that would save a lot of money in terms of overheads and salaries for the commissions – which basically are looking after particular human rights rather than all human rights. Assuming that they don’t meddle with the other Chapter nine institutions – when the Integrity Commission is introduced as a new one – it will slot in between the functions of the auditor-general who is there – like a canary in the coal mine – looking out for irregularities in the books of the country, government SOE’s, municipalities and the Office of the Public Protector (which is somewhat in disarray at the moment) but could resuscitate itself under fresh leadership. As you know, the leader of that institution is on the carpet in parliament facing impeachment proceedings.
On why SA needs an Integrity Commission:
If we go back to 2007, we had well functioning anti-corruption machinery in the form of the Scorpions. The Scorpions were a unit within the National Prosecuting Authority that had been created by ordinary legislation, by a simple majority in Parliament. Had they been the Chapter Nine institution, they would still be with us because nobody can muster two thirds to close them down. The ANC, against everybody in civil society, against virtually everybody in parliament, decided that the closure of the Scorpions was an urgent requirement.
They managed to ram it through in the face of great opposition, not only in the parliamentary debates, but also in the public participation process and in the courts where Mr Glenister – unlike any other litigant ever in the history of South Africa – has been back to the Constitutional Court on three occasions in his quest for decent anti-corruption machinery of state. The first time he went, he was told he was premature and that he must allow parliament and the cabinet to do their work. Only if he was unhappy after that should he come back – 11-0 against him. He wasn’t happy when the Hawks were introduced.
He felt that the Scorpions were a better bet and he went to court, impugning the closure of the Scorpions and the appointment of the Hawks. He wasn’t able to persuade the court that it was irrational to close down the Scorpions. I’d love to be able to argue that point again with the benefit of what we know now compared to what we knew then. He was able to impugn the constitutionality of the Hawks legislation successfully. As a consequence of that – and the majority of the court – it was a very close run thing. It was a 5-4 decision.
The consequence of that was that the court ordered parliament to make the reasonable decision of a reasonable decision maker in the circumstances, in order to substitute the initial incarnation of the Hawks with effective and efficient anti-corruption machinery of state that is adequately independent. That adequate independence comes from the United Nations Convention Against Corruption – to which South Africa is a party and which binds the government when it is structuring the anti-corruption machinery of state. Instead of backing away from the idea that a mere police unit would be able to cut it on anti-corruption work, the ANC again declined to abandon the idea of the Hawks doing the job.
They tweaked the legislation relating to the Hawks as little as possible in order to attempt to satisfy the judgment. Mr Glenister, for the third time, went back to court and said, “I’m sorry, this is not the decision of a reasonable decision maker in the circumstances.” The court agreed with him and with the Helen Suzman Foundation – which was a separate applicant in a similar application that was heard at the same time. But they did not agree in the majority of the Constitutional Court that a reasonable decision maker could not in the circumstances – in which the Hawks, the police and the cabinet found themselves at the time – locate anti-corruption machinery of the kind that is required by law within the police. That they were prepared to do. What they did do was do their own adjustments to the Hawks legislation.
We sit now with the third incarnation of the Hawks and nobody in politics, policing or the security sector accept that the Hawks are up to the task of investigating corruption in high places, kleptocracy and state capture. They simply don’t have the institutional and operational independence – or even the staff and the resources to do so. The Hawks are not seen as part of the solution and putting lipstick on the pig is not going to help. They are still in the police and under the wing of Bheki Cele – who you will recall was dismissed as Commissioner of Police because he was found by a board of inquiry into his fitness for office, to be a person who is incompetent and dishonest. That seems to have qualified him to rejoin the cabinet.
To find more information on the proposed anti-corruption constitutional amendment, please enjoy the full details available here