Corrupt people are the bane of the life of the nation in SA, and indeed anywhere in the world where corruption is as rife as it is here. The President has referred to the ANC, his own party, as “Accused number One” in relation to the phenomenon of state capture, which is no more than a form of corruption on an industrial scale in terms of which the state is repurposed to serve the aims of the corrupt.
The Zondo Commission into state capture had no difficulty in identifying more than 90 top ANC officials as guilty of corruption, at least on a prima facie and non-binding basis. None of them has been convicted in the two years since the final report of the Commission was handed to the President by the chief justice. In fairness to the NPA, it has been starved of access to the paperwork generated by the Commission. Why it has allowed that to go on for so long is another question.
The “renewal project” of the ANC involves shedding officials who have indulged in corrupt activities. This is more easily said than done, when the corrupt are in a position to exert malign influence over those tasked with exacting accountability from them, whether politically in the processes of Luthuli House, civilly via the raking back of loot or criminally for malfeasances committed. Former President Thabo Mbeki has stressed the need for renewal in the ANC, pointing out that the party had made resolutions around renewal at its 2012, 2017 and 2022 conferences, but “it has not happened”. Mbeki suggests an audit of the membership of the ANC. He says, “You can’t deal with the corruption issue without this process.”
The true problem goes deeper than ANC strategy and tactics around corruption. The entire fabric of the nation is damaged by corrupt activities. The poor are the first to suffer because the corrupt divert resources and funds intended for poverty alleviation and service delivery into their own pockets.
Since the demise of the Scorpions unit within the NPA in 2009, the country has been without properly functioning anti-corruption capacity that is able to deal with corrupt people efficiently and effectively as the law requires.
Litigation that followed the closure of the Scorpions gave birth to the “Glenister rules” – a set of criteria which those tasked with countering corruption must meet. These have become known as the STIRS criteria. The Constitutional Court requires:
Specialisation in the sense of being dedicated to the issues around corruption to the exclusion of all else.
Training for recruits to empower and enable them to match the wiles of cunning corrupt operators.
Independence of the institution at both structural and operational levels to ensure that political influence and interference are not brought to bear on corruption-busters, and that they are able to function without fear, favour or prejudice.
Resources that are adequate to the reasonable needs of the anti-corruption entity and are guaranteed, so that their non-payment cannot be used as a means of stifling its functioning and performance.
Secure tenure of office for all anti-corruption personnel, to remove the threat of dismissal or disbandment for going after the “big fish” who currently enjoy impunity and an informal type of immunity against prosecution.
These criteria have proved unpalatable to the ANC, which was solely in power until the May 2024 elections. Instead, it ignored the judgments until 2019, when the newly-installed President produced a proclamation setting up the Investigating Directorate within the NPA. This body, now defunct, served at his pleasure, was under-resourced, lacked specialized skills and the training needed and clearly did not enjoy secure tenure of office, as was amply demonstrated by the swift departure from office of its first director, Adv Hermione Cronje.
The real sticking point is however the independence of the unit. This legal requirement contradicts the striving of the ANC for “hegemonic control of all the levers of power in society”. It had control of the NPA for thirty years and sought to extend that control to the anti-corruption specialists by parking them in the NPA. This step was, and still is, unconstitutional. The court has found that:
“[200] As we have already pointed out, corruption in the polity corrodes the rights to equality, human dignity, freedom, security of the person and various socio-economic rights. That corrosion necessarily triggers the duties Section 7(2) imposes on the State. We have also noted that it is open to the State in fulfilling those duties to choose how best to combat corruption. That choice must withstand constitutional scrutiny. And, even leaving to one side for a moment the Republic’s international-law obligations, we consider that the scheme of our Constitution points to the cardinal need for an independent entity to combat corruption. Even without international law, these legal institutions and provisions point to a manifest conclusion. It is that, on a common-sense approach, our law demands a body outside executive control to deal effectively with corruption.”
The Investigating Directorate clearly did not measure up to the standard set by the majority judgment in March 2011 in para [200] as set out above.
Under some pressure both from the voting public and from critics in the private sector, the ANC decided in 2020 to instruct cabinet to introduce a permanent, independent, specialist body to counter corruption. The response to this instruction, only formulated in 2023, was both slow and inadequate. The then minister of justice, Ronald Lamola, in introducing the bill foreshadowing the Independent Directorate against Corruption (IDAC) claimed that the body is STIRS compliant. It is not.
Early on the day IDAC was signed into law by the President, he received a communication from Accountability Now warning him against so signing. In part the message was:
“Here is why both IDAC and the DSO (Scorpions) [its very similar predecessor which was dissolved in 2009 at the behest of Jacob Zuma, who was charged in 2007 with corruption, embezzlement and money laundering] do not adequately comply with the Stirs criteria laid down in terms that bind you and government:
(a) Both are creatures of an ordinary statute passed by a simple majority in Parliament.
(b) Both are vulnerable to dissolution at the instance of a simple majority which wishes to repeal the said legislation.
(c) Both are located as a unit within the NPA and not within an independent structure such as the judiciary and Chapter Nine Institutions.
(d) The NPA is not independent and has been so badly gutted by State Capture that it will take years to recover from the ravages of the saboteurs deployed in its ranks to protect the corrupt.
(e) The NPA is operated as a programme within the Department of Justice, not independently.
(f) The NPA is subject to the minister of justice having final responsibility over it in terms of C179.
(g) The minister must concur in all prosecution policy, also in terms of C179.
(h) The NDPP and other leadership of the NPA are executive appointees, the former in your sole discretion.
(i) The accounting officer of the NPA is the director general of justice who is not even a member of the NPA.
(j) Due to its gutted state, the NPA will be incapable of recruiting the trained specialists needed to populate IDAC. They will baulk at possibly facing the same fate as the DSO.
(k) The NPA is grossly underfunded due to the ravages of State Capture and the general state of the economy, which corruption has largely caused.”
Needless to say, there has been no official response to the points raised in the email quoted from above. This lack of response may well be evidence that there is no sensible counter-argument or countervailing facts.
The NPA itself has repeatedly pleaded for its independence and has pointed out in an annual report that it lacks the specialised skills and training capabilities to be STIRS compliant.
Currently IDAC has a handful of investigators, most of them borrowed either from the Hawks or from the police. This is woefully inadequate capacity, at a time when the chief justice has remarked that “an army of prosecutors” will be needed to deal with those whom he has identified as possible perpetrators of state capture. A successful prosecution is preceded by a proper investigation undertaken by sharp specialists who are up to the task of countering the wiles of the corrupt.
As long ago as 2012, Accountability Now suggested that a new Chapter Nine body is needed to give proper effect to the Glenister rules set out above. Chapter Nines are inherently and constitutionally independent; they report to Parliament, not the executive, and are insulated against undue political interference in the discharge of their mandates.
The IFP embraced the idea in 2019 and asked the President questions in parliament concerning the introduction of a standing commission (not a commission of inquiry which is essentially toothless in law.)
The DA is punting the Chapter Nine solution via what are currently private members’ bills. (Their promoter, former shadow minister of justice Glynnis Breytenbach, is hopeful that she can persuade the justice portfolio committee on which she serves to embrace the bills as committee bills.) These bills are based on the suggestions made by Accountability Now in 2021 as published in Under the Swinging Arch as appendices to the text. In short: a new Chapter Nine body to prevent, combat, investigate and prosecute corruption.
The MKP has no constructive role in the debate. It would prefer that the Constitution be repealed in toto. Its Chief Whip, John Hlophe, refers to the legal system in SA as a “shitstem.”
Interestingly, the EFF, now the fourth biggest party in parliament, favours the whole of the NPA being converted into a Chapter Nine body.
If the ANC and DA can agree on the Chapter Nine route, with the help of the IFP and other mini- parties, they can muster the necessary two-thirds majority to bring about the renewal the ANC needs and the law the Constitutional Court requires. If not, the GNU will be in danger of collapsing under the weight of discord over the DA’s bills.
Those who represent the ANC in government find themselves in a difficult position. Luthuli House, via the deputy SG, is all in favour of accountability. David Makhura warns that the ANC must renew or perish. Thabo Mbeki spells out what renewal entails. Glynnis Breytenbach has done the hard yards on preparing her bills for debate.
To oppose the bills is to signal softness on corruption. Being soft on corruption has cost the ANC a great deal of support. Its 40% of seats in the National Assembly is only 16% of the electorate that could have, but did not vote in May 2024. Should the ANC choose to be seen as soft on corruption in the light of the recent experiences at the polls, it is likely to lose more support and may even stir non-voters into registering and turning up to vote them into oblivion.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
If you like what you have just read, support the Daily Friend.