A media release by Business Unity South Africa on the eve of the delivery of the state of the nation address contains two contradictory demands (called expectations) and reveals a worrying lack of appreciation of the rule of law, the international obligations of SA and the binding nature of court judgments.

The first demand chivvies government along:

“4. A clear commitment to ensure that critical pieces of legislation, like the National Prosecuting Authority Amendment Bill will be processed with speed. This is part of a broader commitment to consider legislation that promotes partnerships between the public and private sector in order to enable the private sector to assist government to build its capacity to be an enabling government and deliver critical priorities.”

The second expectation that requires some analysis is:

“6. A further commitment to deal decisively with corruption, bring people to account and ensure prosecutions.”

BUSA surely should know that the Bill to which reference is made in its fourth expectation has been accurately described by deputy minister of justice, John Jeffrey, as a “stopgap measure”. It has also been widely criticised as unconstitutional, unworkable and unlikely to have any impact because it will not persuade much needed experts to return to or sign up to the hollowed out ranks of the NPA. Passing stopgap legislation that is unconstitutional is not a proper way to “deal decisively with corruption”, yet this is the final expectation raised by BUSA.

It may be instructive for BUSA to analyse the legal position more carefully before listing its expectations for countering corruption which it includes among its demands of government.

What follows may help.

SA is a signatory to the UN Convention Against Corruption or UNCAC as it is known. The treaty has been domesticated in our law and it binds the government of SA.

Article 6 (2) obliges SA “to grant [its anti-corruption machinery] the necessary independence, in accordance with the fundamental principles of its legal system,” to enable that machinery to “carry out its functions effectively and free from any undue influence. The necessary material resources and specialised staff, as well as the training that such staff may require to carry out their functions, should be provided”.

The supremacy of the rule of law is a fundamental principle of our constitution. The government is bound by the orders and decisions of the Constitutional Court in the Glenister litigation in which the criteria applicable to our anti-corruption entity are set out in detail. They have become known as the STIRS criteria because chief among them are the binding requirements that specialists who are properly trained, independent and resourced in guaranteed fashion work with secure tenure of office.

Chief justice Mogoeng Mogoeng put it thus in the last Glenister case a decade ago: “All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The Glenister rulings were hard won and ought not to be abandoned, given their complete alignment with the UNCAC obligations quoted above. In fact, the Glenister cases provide a precedent of universal application in any country which works within the parameters of the rule of law and recognises corruption as a threat to peace that is secure, progress that is sustainable and prosperity that is equitably shared. Freedom and justice do not prevail when corruption is as rife as it indubitably is in SA today, notwithstanding the resignation of Jacob Zuma on 14 February 2018. BUSA needs to remember that the current president was the deputy of Zuma.

BUSA should also be aware of the constitutional architecture in place for the NPA. It renders the NPA wholly unsuitable as a vehicle for the anti-corruption machinery of state. Not only must the minister of justice “exercise final responsibility over the prosecuting authority [ C 179(6) ], his concurrence is required in respect of prosecution policy [ C 197 (5) ]. The NPA is run as a programme within the ministry of justice and its director general is the accounting officer of the underfunded NPA. None of these features is compatible with the notions of operational and structural independence laid down in the Glenister litigation and in UNCAC.

At a practical level, the NPA is so gutted by the ravages of state capture that it will take many years to recover from the debasement it suffered. Littered with deployed cadres who protect the kleptocrats and their tenderpreneurial fellow-travellers, it is hardly an attractive employer for those who left the Scorpions and the service of the state in the wake of the excesses of the Zuma administrations.

The attempt in the Bill to square the circle between reserving the investigation of serious corruption for the Hawks (a Zuma scheme which, quite deliberately so, has never worked) and sharing investigations with the NPA in the guise of the new Investigating Directorate Against Corruption is a fool’s mission. The Khampepe Commission dealt with turf wars with some difficulty when the police (led by the corrupt Jackie Selebi) clashed with the Scorpions led by the incorruptible Vusi Pikoli. Both eventually lost their jobs, Selebi to a corruption conviction and Pikoli to a thoroughly undeserved dismissal that earned him a multi-million rand settlement because it was illegal. The institutional damage wrought by these shenanigans ought to be a lesson learned and not to be repeated by rushing the legislation BUSA apparently favours in a manner that is most misguided.

The vulnerability of the leadership of the NPA in the current structural environment is illustrated by the fact that no leader has ever seen out his term of office. This is not the type of environment in which fearless prosecution of politically well-connected corrupt persons thrives.

BUSA should also be aware that the advocacy of a new Chapter Nine Institution to replace properly for the first time the Scorpions, the Hawks and the NPA as the entity best able to counter serious corruption has, after more than a decade, found support in the ranks of the major opposition parties in parliament. So strong is the position of the official opposition that the shadow minister of justice is tabling two private members bills aimed at “Glenister compliance,” a form of compliance which is binding on government anyway [ C165(5) ] and at honouring SA’s UNCAC obligations referred to above. Her bills ought to inform the expectations of BUSA, not the underwhelming official response to both that BUSA is expecting to see implemented in its fourth demand quoted above. Indeed, if any urgency appertains, it ought to be concentrated on the polishing, processing and implementation of the two private members bills so that the election does not delay the establishment of an entity under Chapter Nine of the Constitution that is able to prevent, combat, investigate and prosecute serious corruption and the concomitant organised crime that so often accompanies it.

The Chapter Nine solution has been promoted by Accountability Now for so long that it has even developed a nickname for the much needed new body. It is The Eagles. As any ornithologist can confirm: Eagles fly higher, see further and go after bigger prey than Hawks.

It is high time that BUSA adjusts its expectations as regards the countering of serious corruption. Success on this front will enhance business confidence, attract new investments to SA and end the cycle of poverty, joblessness and wretchedness that stalks half the population of SA. Success is a matter of life and death, not only for the poor but also for the country as a constitutional democracy in which human rights are respected and a better life for all is more than a pipe dream.

When it regroups on the matters discussed above, BUSA could also profitably turn its attention to supporting and endorsing the notion of an International Anti-Corruption Court as propagated by Integrity Initiatives International.

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation. He is also a director of III.