Many admirable sentiments are expressed in the DM opinion piece penned by Xola Nqola, an ANC MP, who is chair of the justice portfolio committee in the National Assembly. However, he misses the mark by a country mile; here’s why.
The theme and general tenor of the piece is entirely misguided because it is based on a false assumption, namely that the legislation that brought the IDAC into being passes constitutional muster. It does not do so for the reasons spelt out to the president before he signed IDAC into law, shortly before the 2024 general elections.
The Constitution itself is silent on the notion of corruption, but the Constitution has been interpreted, by our apex court and in binding terms, to mean that an adequately independent single specialist body of trained personnel is required to deal with the scourge of corruption in SA. That interpretation binds the executive and legislature which were party to the Glenister litigation that challenged both the demise of the Scorpions and the birth of the Hawks. Neither the Hawks nor IDAC have proved themselves adequately independent and competent to discharge the anti-corruption mandate involved in their operations and functions.
Nqola welcomes the acting appointment of Adv Ntuthuzelo Vanara as the replacement for the disgraced head of IDAC, Adv Andrea Johnson. He does not reveal why an acting appointment was resorted to, nor does he point out that an acting appointee is always of questionable independence, unless the acting appointment is not wanted by the appointee in question. Acting appointments have the effect of weakening the institutions where they operate. No good reasons, nor any reasons at all, are advanced for making the acting appointment of a body which should, in law, enjoy institutional independence in order to achieve its mandate.
The institutional weaknesses exposed in the IDAC conflagration are due to the failure of government to have regard to the proper imposition of the STIRS criteria for an anti-corruption entity tasked with dealing with serious corruption and organised crime. Specialists, trained in their craft, adequately independent in their structure and functioning, with resources that are guaranteed and secure tenure of office are signally absent from the IDAC.
The acting minister of police conceded during his evidence before the ad hoc committee of parliament (on which Nqola serves) that it was a mistake to close down the Scorpions in 2009 when the Zuma presidency began. It would be a mistake now not to close down the IDAC for no other reasons than that it is a constitutionally non-compliant body that has failed spectacularly within a very short time from its inception. The failure was to be expected, given the lack of compliance with the STIRS criteria mentioned above. Its exposure is due to the work of the two inquiries set up by parliament and the President respectively. Both inquiries are to be commended for the work that they have done to expose the rot in the IDAC. It is not possible to make a silk purse out of a sow’s ear. No amount of new leadership, however good it may be, will achieve the redemption of the IDAC which Nqola apparently desires. He forgets that according to former deputy minister of justice, John Jeffery, the IDAC was only intended to be a stop-gap measure, while NACAC deliberated on the correct way forward to constitutional compliance for the anti-corruption machinery of state. Stop-gap measures are notoriously inadequate; this has proved to be the case with IDAC. The state of affairs within IDAC is symptomatic of the failure of the criminal justice system to deal appropriately with the twin scourges of corruption and organised crime in SA. This is not a mere question of “confronting uncomfortable truths” (as Nqola puts it) about our criminal justice system. What is at stake is the survival of constitutional democracy under the rule of law in SA. Dr Mark Shaw, an international expert in the fields of anti-corruption and anti-organised crime, regards what has emerged in the two inquiries as evidence of an existential threat to our constitutional democracy, a topic far more serious than “uncomfortable truths about our criminal justice system” as Nqola puts it, in a vain attempt to play down the crisis exposed for all to see.
Tinkering with IDAC via the efforts of a new leader, whether acting or not, is simply not sufficient to address the issues properly. Yes, integrity is required, yes, it must be measurable and yes, parliament is obliged to exercise oversight properly. At an entirely more fundamental level, there is a need to accord the rule of law due respect and to implement properly the orders of our highest court when addressing serious corruption and organised crime properly.
Nqola needs to grasp the nettle. Attracting the right calibre of personnel is not impossible. The Scorpions had the necessary esprit de corps and the expertise required to bring to book those on the wrong side of the laws on corruption. These include the Prevention and Combating of Corrupt Activities Act (PRECCA) and for organised crime, the Prevention of Organised Crime Act (POCA). These laws have been on the statute book for many years. The preamble to PRECCA is regarded universally, and certainly by the Constitutional Court, as a most comprehensive justification for strict laws against corruption in SA. PRECCA outlines the legislative intent of our law makers of yesteryear to aggressively prevent and penalize corruption. It frames corruption as a systemic threat that directly undermines the democratic values, socio-economic progress, and human rights guaranteed under the Constitution. All these considerations are fundamental to the appropriate way in which to deal with the spectacular implosion in recent weeks of the IDAC during the evidence being taken at the Madlanga Commission.
Realistically speaking, there is no coming back from an implosion with the magnitude of that which engulfed the leadership of the IDAC. It was only ever meant to be a temporary body, and it has indubitably reached its sell-by date after the summary resignation of its leader and the calumny heaped upon some of its senior personnel.
Both the second- and third-largest political parties in parliament, the DA and MKP, reacted swiftly to the crisis in the IDAC. They both want to see the end of the IDAC: the DA via repeal of the legislation passed in May 2024 on the eve of the formation of the GNU, and the MKP via the abolition of the IDAC.
Constitutionally-sound reform of the law applicable to the anti-corruption machinery of state is indeed needed. The DA has two private members’ bills waiting in the queue of parliamentary business. These bills respectively envisage the establishment and the enablement of a new Chapter Nine Institution which the DA has provisionally named the Anti-Corruption Commission. This body will enjoy all the protections built into Chapter Nine of the Constitution and will enjoy permanent status, like all other institutions formed under that chapter. The commission will not be a short-term commission of inquiry with no significant powers of enforcement; it will be akin to the Independent Electoral Commission and the Human Rights Commission, among others. The bills are private members’ bills in the name of the Chief Whip of the DA, Adv Glynnis Breytenbach. They should be debated thoroughly and without delay. Their content closely matches that of an urgent instruction given to cabinet by the NEC of the ANC in August 2020. Sadly, cabinet did not respond positively to the said instruction.
Dr Shaw favours the adoption of the Breytenbach bills, and so should the honourable Nqola and his party. It is the right thing to do.
Paul Hoffman SC is a director of Accountability Now.
[Image: Justice]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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