On 24 September 2024, the United Nations General Assembly was told by President Cyril Ramaphosa, in no uncertain terms, that: “Through dialogue, through respect for the rule of law, through the advancement of human rights, through cooperation and solidarity, we can and we will be able to achieve a better world…”
In making these most charitable remarks, the President needs to bear in mind that “charity begins at home.”
As recently as May 2024, he signed into law the legislation giving birth to the new Investigating Directorate Against Corruption (IDAC), despite being presented with spirited arguments that the new body is unconstitutional because it does not match the binding criteria set by the Constitutional Court in the Glenister litigation which ended a decade ago.
Indeed, the track record of the ANC on human rights and on the rule of law since Jacob Zuma swept to power at the ANC’s Polokwane conference in 2007 falls far short of respect for the rule of law and even further short of the section 7(2) constitutional duty of the SA state to “respect, protect, promote and fulfil” the rights guaranteed to all in the Bill of Rights, in Chapter Two of the SA Constitution.
On the rule of law, one of the first things the ANC did when Zuma assumed leadership was to set about disabling the capacity of the state in SA to counter corruption in the effective and efficient way in which the Scorpions unit in the NPA had done so. The Scorpions, unlike anything we have seen since, were prepared to act to the detriment of many ANC bigwigs, including Zuma himself, and over a hundred ANC MPs who were involved in the Travelgate scandal.
For their dedication to duty, the Scorpions were summarily disbanded. Their investigative functions regarding the corrupt were given to the new police unit, the Hawks, until they were eventually taken away through the May 2024 legislative amendment that created IDAC, a new unit within the NPA that is legally indistinguishable from the Scorpions and is also equally vulnerable to summary closure.
Before he signed the IDAC legislation into law in May 2024, the President was warned that he would be playing fast and loose with the rule of law if he were to so sign. This conclusion is inevitable if one has regard to the rulings of the Constitutional Court in the Glenister litigation. These rulings gave rise to a legal requirement that in South Africa, the anti-corruption machinery of state should be outside the control of the executive. The NPA, and accordingly the new IDAC, as a part of the NPA, are both under the control of the executive. The whole of the NPA is run as a programme within the department of justice. The minister of justice must concur in all prosecution policy: a massive constraint in favour of the executive.
Furthermore, the minister has “final responsibility over” the NPA. While the current minister disavows any power over the NPA, this “final responsibility” has been used to decapitate the NPA on two occasions. The first was when Vusi Pikoli was suspended for going after the corrupt chief of police, Jackie Selebi, and dismissed for charging Zuma in 2007 on essentially the same corruption counts that are still pending against him now. Secondly, the then Minister of Justice signed a corrupt settlement agreement with Mxolisi Nxasana under which he abandoned his official duties in favour of having his palm well and truly greased with a “golden handshake”. The ministers of justice then in office abused their final responsibility powers to nobble the efforts of both Pikoli and Nxasana, the National Directors of Public Prosecutions involved.
Finally, the accounting officer of the NPA is the director general of justice. All of these features of the system fly in the face of what the Constitutional Court decided on 17 March 2011:
“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 s 7(2) [of the Constitution] 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.”
These words, contained in paragraph [200] of the majority judgment penned jointly by Deputy Chief Justice Moseneke and Justice Cameron, bind the government in its decision-making around the combating of corruption. The May 2024, admittedly just pre-GNU, decision of the President to leave our corruption busters within the NPA, an institution still crippled by state capture, flies in the face of the obligation to respect the decision of the court when effecting reforms of the kind that gave us IDAC in May this year. The NPA does not enjoy the type of operational and institutional independence that the court requires. A different solution to the obvious challenges posed by unbridled corruption in SA is manifestly required to meet the test set, namely, “to make the reasonable decision of a reasonable decision-maker in the circumstances.”
Complaints by Accountability Now that implicate both Zuma and his last minister of police, Bheki Cele, in corruption of the most serious kind have not been attended to by the NPA or the Hawks. The investigation of the charges against Cele (foreshadowed in the “Against the rules” reports of the Public Protector and in the findings of the Moloi board of inquiry which found that Cele is “dishonest and incompetent”), having been referred to the Hawks by the NPA, lies fallow at the Hawks, as no one there feels sufficiently independent of the now former minister to actually act against him without fear or favour.
The complaint against Zuma, dating back to 2015, relates to his corrupt dismissal of a former national director of public prosecutions, Mxolisi Nxasana. Upon enquiry by the Inspecting Judge of the Hawks, it emerges that the Hawks say the docket is with the NPA and the NPA leadership says the docket is with the Hawks. Further inquiries go unanswered.
On the other topic addressed by the President at the UN, namely that of the advancement of human rights, it is clear that the President has lost sight of the loud and clear warning sounded by the same justices in the same judgment. They pointed out pertinently, in paragraph [166] that:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the State to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
Now that it is public knowledge that the state has no funds to pay all the teachers currently in its employ, the right to basic education, which is guaranteed to all, will become ever more illusory when retrenchments take place next year. Similar points can be made in relation to health care (think Helen Joseph Hospital, for example); housing for the poor (look at the shacks on the fringes of every city and the homeless squatting on the pavements of SA’s cities); and reliable water supply (under extreme pressure in Gauteng and elsewhere).
At best, the advancement of human rights is a work in progress in South Africa. Endemic and systematic corruption fetter the capacity of the state to deliver human rights promised to all in the Bill of Rights.
There is however light at the end of the tunnel, given that the President addressed the UNGA as leader of the GNU, not just the ANC. The GNU was called into existence by him on the basis that the Constitution and the rule of law would be its guiding lights.
On the desk of the Speaker of the National Assembly, two private members’ bills await the allocation of dates for their introduction and debate on their content. The bills aim to introduce and enable a Chapter Nine Anti-Corruption Commission to prevent, combat, investigate and prosecute serious corruption and organised crime. These bills are based on constitutionally compliant suggestions made by Accountability Now in August 2021. The executive has chosen not to engage with these suggestions, but Parliament, through its constitutional review committee, did give Accountability Now a hearing in March this year. The body the two bills envisage is not a commission of inquiry, which has no teeth because its findings and recommendations bind nobody. It is a standing commission of the kind already in existence in terms of Chapter Nine. Institutional independence is guaranteed to such bodies and their reporting line is to Parliament, not to the executive.
If the President was serious and sincere in what he told the UN General Assembly, as quoted above, he and his cabinet will support the bills wholeheartedly and seek to expedite their adoption and passage into law. He will, in that way, demonstrate his bona fides and address the deficiencies of the past when it comes to upholding the rule of law and to the realisation of the promises made in the Bill of Rights, as regards respecting, protecting, promoting and fulfilling the human rights guaranteed to all. He will also, somewhat belatedly, address the resolution of the National Executive Committee of the ANC of August 2020, when it instructed cabinet to bring about the changes the bills envisage.
If the President was just “grandstanding” in New York, then the two bills will likely be opposed by his party, the ANC, and they will fail to become much-needed law, so vital in the process of reforming the damage done in what the President has himself called the “nine wasted years” of the Zuma presidency.
Should the bills, as debated and refined by Parliament, not become law, it will be necessary to return to the courts for two remedial steps. Firstly, to strike down the May 2024 IDAC legislation for its unconstitutionality. At the same time, and in the same application, it will be necessary, secondly, to seek declaratory, mandatory and supervisory relief in relation to the failure of the SA government properly to implement the binding findings in the Glenister litigation. Both cases enjoy strong prospects of success.
That process will take us full circle to the point already reached – the introduction of bills that are constitutionally compliant and which create the specialised, properly trained, independent, fully resourced and secure-in-tenure entity that the Constitutional Court has had in mind since 2011.
It is fervently to be hoped that the President was not grandstanding when he addressed the UNGA in New York on 24th September.
[Photo: Screenshot/YouTube/theDIRCOZA]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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