Colette Ashton, writing on ISS Today and the Daily Maverick on 9 December, International Anti-Corruption Day, suggests that the people of South Africa have been waiting for ten years for reform of the country’s anti-corruption institutions.
Ashton is an attorney with impressive post-graduate qualifications in the anti-corruption field who works as a research consultant with the Institute for Security Studies (ISS).
The “wait” actually began years before that, on 17 March 2011, when the Constitutional Court handed down its seminal judgment in the case now known as “Glenister Two”. The constitutionality of the then anti-corruption machinery of state was in issue. The Hawks and the NPA were then respectively in charge of investigating and prosecuting cases of corruption.
In its meticulous majority judgment, the court stated that:
“ … our law demands a body outside executive control to deal effectively with corruption.”
Note the singular (a body) and the location of that singular body which has, despite the clear wording of the judgment, never been seen “outside executive control” in SA at any time since the court’s finding was made.
This finding is both binding on government and was also reinforced in Glenister Three in November 2014, when the opening words of the majority judgment on that occasion trenchantly criticised the circumstances pertaining to the incidence of corruption in SA back in 2014:
“Corruption is rife in this country, and stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
All the words quoted above are taken from the majority judgments of our highest court. They bind government, and both the rule of law and the doctrine of judicial precedent require that they be implemented to the letter.
Needless to say, they have not been taken seriously by government, and to this day no single body outside executive control has taken charge of “dealing with” the corrupt.
Corruption has flourished
As a consequence, corruption has flourished to the point that it poses an existential threat to the continuation of constitutional democracy under the rule of law in SA in a multi-party democracy that is open, accountable and responsive to the needs of the people. All these nice qualities are spelt out in Section 1 of the Constitution. As Ashton correctly points out, the youth of the world is becoming restive about the levels of corruption with impunity that abound in jurisdictions not unlike our own. It is also true that authoritarianism is on the rise, as pointed out by Ashton.
The government has assiduously avoided implementing the requirements of the two court judgments, despite their binding nature. Instead, it has persisted in its long-standing multi-agency approach to combating corruption, despite its inefficacy and ineffectiveness. This persistence endures notwithstanding the express provision in the Constitution that “Efficient, economic and effective use of resources must be promoted”. This provision is one of the basic values and principles governing public administration in SA that is set out in Section 195(1) of the Constitution.
The multi-agency approach to countering corruption is indeed a viable option in countries in which the executive is not itself infected with corruption. The single-agency approach, via “a body outside executive control” is not one that is popular in any country in which state capture or executive malfeasance (think the arms deals, Gupta-gate and Phala Phala) is a reality, or can be construed as a threat to democracy.
In SA the executive’s allergy to the single-agency approach is exacerbated by the fealty of all the ANC members of cabinet, both good ones and the not so good, to the tenets of the National Democratic Revolution. One of the basic aims of that “revolution” is to secure hegemonic control of all the levers of power in society. The workings of an anti-corruption agency amount to just such a “lever of power.” A most useful lever, when about a hundred highly-placed members of the ANC, including some of its national cabinet members, are fingered in the report of the Zondo Commission into State Capture in SA. The desire to “hegemonise” is alive and well and living in Luthuli House. Hegemony is a truly revolutionary concept in a country in which multi-party elections under the rule of law are constitutionally required.
Tasked with reform
The National Anti-Corruption Advisory Council (NACAC) leadership, tasked with reform of the anti-corruption order, when confronted with the use of the singular in relation to the anti-corruption entity required by the court, suggested that the court has no power to so order!
The order of the court is perfectly clear, it reads:
5. It is declared that [the Hawks legislation] is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation. [the Hawks]
6. The declaration of constitutional invalidity is suspended for 18 months in order to give Parliament the opportunity to remedy the defect.
Government has not at any time sought to correct these orders.
In the context in which the phrase “adequate degree of independence” is used, it is plain that the court had a body outside executive control in mind. This particular fact is more than people who get up in the morning to pursue the NDR can stomach. Hence the failure to implement the rulings made, and the continuous failure to use the opportunity to remedy the defects in the original and later Hawks legislation.
This is not to say that Parliament and the national cabinet have been idle. The National Anti-Corruption Strategy (NACS), the formation of the Investigating Directorate within the NPA via a questionable presidential proclamation and the eventual passage of the unconstitutional legislation that gave birth to the Investigating Directorate Against Corruption (IDAC) are all main features of the work done by government since the Glenister challenges to the constitutionality of the position taken by government.
In the 2011 judgment, the court devised the criteria by which the “body outside executive control” should be known. The main criteria have been dubbed the STIRS criteria, an acronym for Specialised, Trained, Independent, Resourced in guaranteed terms and Secure in tenure of office.
The staff of IDAC, all 128 of them, are not compliant with any of the STIRS criteria and the Hawks do not even aspire to so comply. If anything, IDAC is a pale shadow of the Scorpions, located similarly and just as vulnerable to closure at the behest of a simple majority in Parliament, the very mischief at which the court was aiming in seeking to remove executive control. For reasons already explained to the President in detail by Accountability Now before IDAC was formed, it is an unconstitutional unit which is liable to be closed down if its constitutionality is challenged. The President did not respond to the email sent to and received by him.
Neither independent nor specialised
The NPA aspires to be an independent body, but it is neither independent nor specialised. Its constitutional mandate is general in nature, because it covers all crimes, and it insists on impartiality, while simultaneously keeping the NPA firmly under the thumb of the ministry of justice. The NPA is run as a programme within that ministry and the DG of justice happens to be its accounting officer who controls its purse strings.
More importantly, from the perspective of “executive control”, the minister of justice is required to concur in all prosecution policies devised within the NPA and must maintain “final responsibility over” the NPA. These are not the hallmarks of an independent body; one that is positioned “outside executive control”.
Properly interpreted, the phrase “without fear, favour or prejudice” as used on the NPA is a reference to its impartiality, not its independence given the other features set out here.
NACAC was appointed by the President in 2022 to advise cabinet on the reform of the anti-corruption capacity of the state. Packed with party loyalists or those well-disposed toward the NDR, NACAC has tried its best to find a way around the words from the Glenister cases set out above. The leadership of NACAC, when confronted with the words evidencing the clear intent of the courts to embrace the single-agency approach, suggested that the courts do not have the power to do so. This suggestion is plain wrong, as a matter of law. The Constitution means what the courts say it means, and the issues in the Glenister litigation required it to decide what the Constitution – which is silent on the concept “corruption” – must be interpreted to mean. This the court did in Glenister Two, as was confirmed in Glenister Three.
The Office of Public Integrity (OPI), a dubious invention of NACAC, is a sop to those who interpret Glenister Two to mean that a Chapter Nine Institution to deal with corruption is a constitutionally compliant response to what the justices have spelt out in the judgment. In Glenister Two they do hint at Chapter Nine being an appropriate home for the “body outside executive control” which they have in mind, but there may be other ways of complying with the judgment. Giving a sliver of anti-corruption functions (the prevention of corruption) to the OPI does not cut the mustard.
Glynnis Breytenbach, a DA MP and former senior prosecutor, does believe that Chapter Nine is the natural home for the body outside executive control that the judgments require. The other Chapter Nine Institutions all enjoy constitutionally guaranteed independence and impartiality. They report to Parliament, and not to the executive in any way, shape or form.
Breytenbach has two bills in the works in Parliament which envisage the establishment and enablement of a new Anti-Corruption Commission that complies with the requirements of the Glenister litigation. Ashton utters not a peep about this worthy initiative, while she ignores the points raised above.
Outside executive control
The OPI will not be a proper Chapter Nine Institution in that it is envisaged that the President will retain the power to issue proclamations directing it to investigate issues he raises, as is the case with the SIU. The President is the head of the executive. The requirement is that the body the court desires should be outside executive control.
While the SIU indubitably houses talent that would be of use in the fight against the corrupt, it is not part of the criminal justice administration and cannot do anything without the presidential say so. It attracts the best staff because it pays better than those in the NPA and the police who do similar work. The SIU operates in the sphere of civil law, working to a much lower onus of proof in the raking back of loot in civil proceedings. It has a very limited mandate.
The OPI is touted as a corruption-prevention body. The best way to prevent corruption is to deter those contemplating it. Corruption is a secretive and deliberate form of crime. If the chances of being caught and punished are high, corruption wanes, and vice versa.
A prevent-corruption-body will have no bearing on the calculations made by those contemplating corrupt activities, and no teeth to do anything about the corruption it unearths beyond handing dockets to the thoroughly useless and discredited NPA, when it comes to anti-corruption work, for prosecution. This step will not prevent those disposed towards corrupt practises from engaging in corruption, in the sure knowledge that the prosecution capacity of the state in relation to corruption is almost completely broken.
The OPI is not designed in a way that satisfies the requirements of the Constitution for Chapter Nine status and, in particular, its reporting line to the President and his power to give it instructions are unconstitutional to an alarming degree. The formation of the OPI is an attempt to circumvent the thrust and import of the Glenister rulings. It amounts to governance by sleight of hand. It won’t work and it won’t do.
Parliamentarians who have had enough of the corruption with impunity that imperils our future as a nation are encouraged to vote for the Breytenbach bills which are currently pending in Parliament.
Public-interest litigation
Should they not attain the necessary two-thirds majority, public-interest litigation impugning the constitutionality of the formation of both IDAC and the OPI will be launched. The courts will have no difficulty understanding the words quoted from the two judgments set out above.
Generating the political will to counter corruption effectively is the task facing concerned citizens at every level, including within those formations that, however tenuously, embrace the NDR. The stance of the ANC is plain wrong, unconstitutional and counter-productive in the struggle against the corrupt in our midst.
[Image: Hassan Sherif on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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