Dear Mr President,
1. Your weekly letter to South Africans published by “Politicsweb” on 17 November 2020 refers.
2. It is both timely and appropriate for you to encourage new investment in SA at this delicate stage in our history, given the ravages of the pandemic and of state capture.
3. In order to get new investment, it is necessary to build public trust in government institutions and to enhance business confidence in the profitability of making new investments in the post-Covid19 environment the world will enter once vaccines are available.
4. There is no better way to build public trust and business confidence than by demonstrating that the rule of law is intact and the criminal justice administration is functioning optimally.
5. It is monotonously conceded by the NDPP that all is not well with the NPA. It is underfunded, short-staffed, lacking in facilities and capacity and incapable of dealing with the tidal wave of corruption both in relation to “PPE” procurement and in general. Adv Batohi has indicated to parliament that the anti-corruption work of the criminal justice administration is like a “pinpoint on an iceberg”. Her metaphor is both accurate and bound to cause consternation in the minds of prospective new investors while also perplexing public trust in government in SA.
6. As you know, the NEC of the ANC is alive to the problems currently being experienced by the criminal justice administration as a consequence of the ravages of state capture within it. This dysfunction includes the hollowing out of the NPA which is thoroughly compromised by the “saboteurs” (Adv Hermione Cronje’s term for Zuma era deployees) in its own ranks. Furthermore, the Hawks have proved to be unsuccessful at replacing the investigative functions previously carried out by the Scorpions, a NPA unit which was closed down by President Motlanthe in 2009, when he was in office.
7. The location of the Hawks within the SAPS has not been a successful substitute for the Scorpions troika system of investigation and prosecution by one entity operating free of executive control, influence and interference in a structural and operational environment conducive to acting without fear, favour or prejudice.
8. You are also very much alive to the dangers of the executive becoming involved in anti-corruption work. You have warned the Leader of the Opposition to “run for the hills” should that ever occur. We agree with you.
9. The NEC of the ANC has resolved in August in favour of the urgent establishment of a stand-alone, permanent and independent agency to deal with corruption and organised crime.
10. In so doing it has embraced the “single agency” approach used in many countries that have successfully combated corruption. It has also followed the line taken by the majority of the Constitutional Court in the Glenister litigation in which the criteria for success in corruption-busting activities of state have been prescribed in binding terms. The multi-agency of the Zuma era will be history once the NEC resolution is implemented.
11. The multi-agency approach of the Zuma era has not worked successfully in performing “diligently and without delay” (C 237) the work now necessary to end the culture of corruption with impunity that is abroad in the land.
12. In our respectful view, the best practice way of achieving that which the NEC has resolved be done is to set up a new Chapter Nine Institution, perhaps called “The Integrity Commission” to prevent, combat, investigate and prosecute grand corruption and organised crime in the effective manner envisaged by the resolution of the NEC. This approach is favoured by Archbishops Tutu and Makgoba as well as Professor Thuli Madonsela. Adv Willie Hofmeyr has proposed useful tamper-proof ways of appointing and dis-appointing key personnel whose integrity is essential to success in countering the corrupt.
13. While the envisaged step will involve the removal of the prosecution of those suspected of grand corruption from the mandate of the NPA and a second constitutional amendment to create the Integrity Commission, it is nevertheless apparent that the Hawks will be able to continue with investigation of the other priority crimes falling within their mandate. The NPA will continue to prosecute all other crime. It might even be indicated to fold IPID and the SIU into the new institution in the interests of efficiency and economy in these fiscally straitened times.
14. The location of the Integrity Commission in Chapter Nine will enable it to function with a constitutional guarantee of independence in the manner wanted by the NEC, (and the courts) namely without fear, favour or prejudice.
15. The National Anti-Corruption Strategy (NACS), so long in the making, will have to be adapted to take into consideration the NEC resolution and ought not to be published in a form that in any way contradicts the criteria set by the NEC, these are criteria which happily coincide with those required by law and by the rulings of the courts as well as by international best practice. Having made submissions to the Working Groups tasked with formulating the NACS, we fear that the groups are infested with Zuma-era thinking and a disregard for the findings of the Constitutional Court in the Glenister cases, findings which are binding on the state. The NEC resolution must have come as a shock to many members of the working groups who remain stuck in outdated “multi-agency” thinking.
16. A NACS formulation that contradicts the NEC resolution (as announced on 4 August 2020) and the law will sow confusion. It will also increase lack of trust in government to do what the governing party’s highest decision-making body between conferences requires of it. Falling around of this kind will also undermine the level of business confidence required by you to encourage much needed fresh investment with success.
17. It is necessary to ensure that the NACS working groups are on the same anti-corruption mission as the NEC by the time that the next iteration of the strategy is published. It will be hugely detrimental to your investment encouragement efforts if it is not.
18. The legislation necessary to effect the change to a Chapter Nine Integrity Commission already exists in draft form on the website of Accountability Now. We commend it to your attention as you mull the implementation of the NEC resolution.
Yours in accountability,
Paul Hoffman SC
Institute for Accountability in Southern Africa
Campaigning as Accountability Now