Professor Pierre de Vos is a professor of constitutional law at UCT. He occupies the Claude Leon chair at that august institution. Jonny Steinberg was a professor of African Studies at Oxford for nine years.
The first professor has penned an article carried by News24, the last few paragraphs of which are worth analysing. The assumption underlying the reasoning used by the professor is that the law and the Constitution must bow before the calumny and corruption of the powerful in SA.
This assumption is both wrong and dangerous.
The country is not ruled by brigands. SA is ruled by a supreme constitution under the rule of law. If politicians make themselves guilty of passing laws or conducting themselves in ways that are inconsistent with the Constitution, their actions are invalid. Any invalid conduct or laws may be struck down by the Constitutional Court on application by any aggrieved party.
Before he signed the IDAC bill into law, President Ramaphosa was warned by Accountability Now that he was embarking on an unconstitutional exercise. Eleven reasons were given to explain the errant nature of the IDAC proposal.
Described as a “stopgap measure” by then deputy minister of justice John Jeffery, IDAC has imploded spectacularly in the evidence emerging at the Madlanga Commission of Inquiry.
Its head has summarily resigned, and key personnel have been placed on suspension. IDAC is not independently structured, and it has not operated in an independent manner. It is a part of the NPA and does not enjoy adequate independence, as illustrated by the antics of its leadership on both the prosecutorial and investigative sides of the organisation as documented by the Commission.
The courts have long held that our anti-corruption machinery of state must be of a standard that complies with international obligations SA has undertaken, and operates in a manner that supports the obligations of the state to respect, protect, promote and fulfil its obligations under the Bill of Rights as laid down in Section 7(2) of the Constitution.
In turn, the Constitution means what the courts say it means.
No such body exists
Parliament has been ordered to fashion legislation that produces an adequately independent body, a single body, to deal with corruption effectively. No such body exists, to the detriment of the common weal in SA.
These points were made to warn the president not to sign IDAC into law:
“Here is why both IDAC and the DSO (Scorpions) do not adequately comply with the STIRS criteria [specialists, trained in anti-corruption work, independent, resourced in guaranteed fashion and secure in tenure of office] 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.”
The president did not heed the warnings given and signed the IDAC bill into law. It has not taken IDAC long to prove that the warning given was valid and will remain so until STIRS-compliant anti-corruption machinery is put in place.
Surrender to the crooks
It does not behove a professor of constitutional law to surrender to the crooks and knaves who have attempted to capture the state, act corruptly at every turn and enjoy impunity because the structure required by law is not in place in the country.
There are efforts being made to address the situation.
Firstly, the National Anti-Corruption Advisory Council has proposed a seriously half-baked Chapter Nine Institution (the Office of Public Integrity) which, quite amazingly, will not have prosecutorial powers of the kind the anti-corruption machinery of state cannot do without. The NACAC final proposals have been on the table for a year, ignored by politicians and rejected by the relevant public servants.
Secondly the DA, via its Chief Whip, has proposed two bills aimed at establishing and enabling a new Chapter Nine body called The Anti-Corruption Commission. Not a relatively toothless commission of inquiry, a standing body with original constitutional powers that enable it to deal effectively with corruption in all its manifestations. Everything from prevention, detection, investigation and prosecution will be covered as the Ch9 ACC goes about countering the scourge of corruption and organised crime in all its serious manifestations.
Thirdly, the time has come for public interest litigation aimed at proper implementation of the law, as it relates to serious corruption and organised crime.
Meekly conceding that “turkeys don’t vote for Christmas” is not a legally sound approach. It gives power to the wicked which they have neither earned nor deserve. Voters are alive to the corruption in high places and now tend to vote for clean politicians rather than the usual suspects.
Both the DA and the MKP, the second and third largest parties in parliament, have indicated their unhappiness with the IDAC legislation. The DA wants it repealed, while the complete abolition of IDAC is the aim of the MKP.
Career-limiting move
Given the ever-shrinking support base of the ANC, it is a career-limiting move for its politicians, especially back-benchers, to be seen to be supporting the retention of the weak and tame IDAC configuration.
The second ex-professor, Jonny Steinberg, has also written for News 24 in recent days.
His take on the collapse of IDAC is completely different to that of De Vos. Referencing an airport discussion he had as long ago as 2000, he champions the idea of an FBI-type body for SA to take charge of countering organised crime in the country.
The professors do not refer to the FBI training given to the Scorpions of old. They do not mention the Glenister litigation nor the compilation of essays concerning that litigation that ended in three appeals to the Constitutional Court, namely the e-book, Under the Swinging Arch. (It’s a free read).
Had they done so, they would have been reminded that the apex court in SA has given the topic of a suitable and fit-for-purpose anti-corruption body repeated and serious consideration in terms that bind the state. In the last Glenister case the majority decision kicked off with this broadside:
“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.”
Effectiveness and efficiency are not the hallmarks of the NPA, IDAC and the Hawks. What is needed urgently is a single body of the kind contemplated by the Constitutional Court. There are two bills pending in parliament (also not mentioned by the professors) that are aimed at setting up a new Chapter Nine body that will be structured, and will operate as an anti-corruption entity of the kind the courts require.
Mustering the political will to do so is the task of the politicians or, failing them, the voters of SA. In the final analysis the politicians depend on the voters to attain elected office.
[Image: by sergign]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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