Where should our corruption busters be located?

17 October 2022

There is a growing consensus among political parties that there is an urgent need to reform the criminal justice administration so as to better equip it to deal with serious corruption with impunity that, in words used by the Constitutional Court, “threatens to fell at the knees all we hold dear in our nascent constitutional democracy.”

The report of the State Capture Commission has brought into focus, authentically and authoritatively, the corrupt elements in the Zuma era and beyond, the kleptocracy, the cronyism, the defilement of our tender system to serve private ends rather than the public weal and the repurposing of the state itself to satisfy private greed, which is at the heart of state capture.

Ivor Chipkin, in his contribution to the new book “Days of Zondo”, has remarked on the phenomenon of politicians who think that they are above the law. This deviancy is obviously a serious aberration in a constitutional democracy which regards the values of the Constitution itself to be our supreme law.

Much of the mischief that needs to be addressed is due to cadres with their hands on the levers of power being unwilling or disinclined to honour their oaths of office by upholding the Constitution. Minister Lindiwe Sisulu is in open revolt against the Constitution and the rule of law, while Minister Nkosazana Dlamini-Zuma mutters darkly about “class suicide” – a notion foreign to constitutional democracy. Both are candidates to lead the ANC and will put the popularity of their aberrant views to the test among their comrades who assemble for the elective conference of the ANC in December.

The paralysis in those parts of government in which the ANC governs is due in large part to the tug of war that goes on between constitutionalists and revolutionaries. The courts are drawn into these conflicts when called upon to adjudicate disputes in which the clashes lead to laws or conduct that are inconsistent with the Constitution. The unpopularity of our judges in certain quarters is attributable to their unswerving commitment to upholding the Constitution and the rule of law when either are in issue in cases brought before them.

The Minister of Justice, Ronald Lamola, is a candidate for deputy president of the ANC in December, but is unlikely to feature on any slate on which his revolutionary colleagues Sisulu and Dlamini-Zuma feature. He appears to be a constitutionalist to his fingertips.

Lamola told parliament last week, according to a report by Linda Ensor in Business Day that:

“The presidency and the department of justice are discussing the creation of a multidisciplinary anti-corruption agency but the question so far remains unresolved as to where it should be housed, justice minister Ronald Lamola said on Thursday.(13 October 2022)

The Zondo commission of inquiry into state capture recommended the creation of such an agency to strengthen the fight against corruption.

Providing a political overview of the work of his department to parliament’s justice and correctional services committee Lamola said it believed the agency should be an institution within the National Prosecuting Authority (NPA) but some civil society organisations argued for it to be established as an independent chapter nine institution.”

Accountability Now is one of the civil society organisations that favours the creation of an independent chapter nine institution that is accorded a mandate to prevent, combat, investigate and prosecute serious corruption. Our stance is motivated in a soon to be orally supplemented written submission to the Constitutional Review Committee of the National Assembly. https://accountabilitynow.org.za/?s=submission+to+the+CRC&submit=Search.

We suggest it is a bad idea to locate the new anti-corruption entity (ACE) within the National Prosecuting Authority and urge the minister and his advisors to reconsider their position.  We argue that the following propositions are uncontroversial and should be used as a basis for decision-making around the all-important location of the ACE in the architecture of the criminal justice administration, given that unaddressed serious corruption could cause the demise of constitutional democracy, will hasten our greylisting by the Financial Action Task Force and will make SA an unattractive location for the type of new investment that will create jobs, alleviate poverty and reduce soaring inequality in SA:

Serious corruption is out of control in SA due to lack of capacity, resources and skills in the criminal justice administration to counter the corrupt.

Reforms of the operations and structures of the criminal justice administration are needed to address the shortcomings in investigation and prosecution of serious corruption by the Hawks and NPA respectively.

The decisions of the Constitutional Court in the Glenister litigation are binding on both the legislature and the executive.

Despite a decade in which to implement the STIRS (specialised, trained, independent, resourced, secure) criteria properly, government has failed to do so, hence the ten-year backlog in corruption cases.

It is incumbent upon government to devise “the decision of a reasonable decision-maker in the circumstances” to implement the Glenister rulings.[The methodology required is spelt out by O’Regan J writing for a unanimous Constitutional Court in the earlier Rail Commuters Action Group case para 88]

SAPS is itself increasingly corrupt and the NPA is seriously if not terminally inept at dealing with serious corruption.

The NPA is not adequately independent as a corruption fighting entity because the minister of justice has “final responsibility” over it and its accounting officer is the director general in the Department of Justice.

The Anti-Corruption Entity (ACE) should, as the president has announced during his SONA, report to parliament (like the Chapter Nine Institutions) and not to the executive (like the NPA and other ordinary state institutions).

Placing the new ACE in the NPA by way of ordinary empowering legislation places SA in the same position in which it found itself before the Scorpions were dissolved, the vulnerability to a new wave of state capture activity is manifest.

A mere creature of an ordinary statute can legally be dissolved by way of the rational decision of a simple majority in parliament

A Chapter Nine Institution requires a two thirds majority in parliament before it can be dissolved.

The feature of the Scorpions that led to their demise was their lack of secure tenure of office ( tenure a la Chapter Nine Institutions) and consequent vulnerability to closure at the instance of a simple majority.

Replicating the Scorpions now by way of ordinary legislation does not address their security of tenure of office adequately.

If the new ACE is to be placed within the NPA, the Constitution will have to be amended to terminate the roles of the DG and minister as accounting officer and as having “final responsibility” (per C 179) respectively and to make the reporting line of the NPA directly to parliament and not to the executive in order to enhance its independence both generally (the ability to prosecute “without fear, favour or prejudice”) and specifically as regards compliance with Glenister criteria.

The NPA, as currently constituted, and given its current operational capacity, will not attract, as new recruits, the type of personnel, expertise and experience that is necessary to take on the corrupt effectively and efficiently. New recruits can however be attracted to a new institution that is not saddled with the baggage of state capture, Jiba-ism and planted “saboteurs” who, to this day, undermine anti-corruption efforts deliberately, as remarked on publicly by Advs Cronje and Batohi the heads of the Investigating Directorate and the head of the NPA respectively.

It will take far too long for the NPA to “grow its own timber” insofar as countering serious corruption is concerned, but not in respect of other forms of crime.

The longer it takes to get the ACE up and running, the harder it will be to recover the loot of state capture and use it to rebuild the country.

The lack of enforcement of existing anti-corruption laws against money laundering and terrorism financing is likely to be the precipitating factor in the greylisting of SA to the detriment of its economy and its people, especially the 55% who are living below the poverty line.

The “Carrot” of NTRs (non trial resolutions) is not counterbalanced by the “Stick” of deterrence through proper enforcement, leaving the corrupt feeling free to take their chances with impunity

An informal ombudsman a la the Schleswig Holstein model discussed on page 87 of Countering the Corrupt ( https://accountabilitynow.org.za/?s=Countering+the+Corrupt&submit=Search) would be a swift and easy way of improving the lot of the vitally important and currently endangered whistle-blowers of SA by protecting their anonymity.

It is worth recording that since 2019 the IFP has promoted the notion of placing the ACE in the protective framework of the architecture of Chapter Nine of the Constitution. SA does not need a replay of the dissolution of the Scorpions. Since 2022, the DA has, in the words of its shadow minister of justice, “shamelessly copied” the thinking of Accountability Now around reform of the criminal justice administration. The Defend Our Democracy campaign endorses the suggestions made by Accountability now as regards the establishment and location of the new ACE.

The ANC’s own National Executive Committee, as long ago as August 2020, gave an urgent instruction to the cabinet, in which Minister Lamola, serves to establish a “stand alone, permanent and independent” ACE of the kind currently under consideration. Clearly such an institution would be “stand alone” in Chapter Nine, but would not be, if housed within the NPA.

The draft legislation referred to in the submissions to parliament were presented to government in August 2021, after cabinet did not urgently react to the resolution of the NEC of the ANC. They could be debated in parliament in the course of this year if the dithering and delaying in cabinet is ended and the urgency of the process, as highlighted by the NEC, is respected.

Greylisting could be averted if cabinet moves swiftly to show its resolve to beef up the enforcement aspect of anti-corruption efforts in SA that have attracted the adverse attention of the FATF.

The motives of those who favour placing the ACE within the NPA are open to question by cynics who will point out that the “saboteurs” in the NPA still lurk there and will be able to sabotage the new ACE in much the same way as they have sabotaged the efforts of the NPA.

From the perspective of a “best practice” implementation of the decisions in the Glenister litigation, the suggestions of Accountabilty Now commend themselves for acceptance by politicians.

Paul Hoffman SC is a director of Accountability Now