SA’s urgent need for an independent anti-corruption body

Key topics:

• Urgent need for independent anti-corruption body in South Africa

• Constitutional Court requires entity outside executive control

• Political resistance hinders reform and accountability efforts

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By Paul Hoffman*

There is a crying need in South Africa to come up with a plan that will improve the capacity of the state to deal with the corrupt among us and effectively end their culture of impunity.

So intense is this need that the President himself decided to appoint a National Anti-Corruption Advisory Council (NACAC) to advise him and cabinet on the way forward after the Zondo Commission of Inquiry into State Capture in essence found the ANC guilty of corruption – in spades.

As part of its final report NACAC engaged the Public Affairs Research Institute (PARI) to conduct an analysis of the response of government to the hundreds of recommendations made by the Zondo Commission in its final report.

Rather grandly, PARI has called its work an “Independent Assessment for NACAC of the 60 Presidential Commitments to implement the State Capture Commission Recommendations”.  It has recently published the assessment separately from the NACAC report in which it features as an appendix.

Dealing effectively with corruption has been a vexed topic in SA ever since the demise of the Scorpions and their replacement with a new police unit called the Hawks. The latter, to put it mildly, have not enjoyed success as an anti-corruption body, corruption being one of the “Priority Crimes” the Hawks are expected to deal with among others.

The constitutionality of dissolving the Scorpions and creating the Hawks was challenged in what has become known as “the Glenister litigation” – three cases that found their way, on appeal, to the Constitutional Court between 2008 and 2014. In the second appeal, known as “Glenister Two” the majority of the court grappled with the meaning of the Constitution and our international obligations in coming to the conclusion it reached.

The constitutionality of disbanding the Scorpions was endorsed by the court on the evidence then available. Today it is clear that closing down the Scorpions was not a rational exercise of governmental power. Had the evidence made available to various commissions of inquiry, including the Zondo Commission been available to the court it could reasonably have come to the conclusion that no legitimate purpose of government was served by termination of the services rendered by the Scorpions.

Grand corruption

Indeed, the closure could be sensibly construed as a step in the state capture processes unfolding on Jacob Zuma’s watch, a move to ensure impunity for those involved in all forms of grand corruption and in the repurposing of the state to their malign ends.

The constitutionality of creating the Hawks was, however, frowned upon by the court in its joint majority judgment. (The minority could find nothing wrong with the Hawks). The majority struck down the original Hawks legislation and sent parliament back to the legislative drawing board with instructions to reform the law because the original Hawks legislation “fails to secure an adequate degree of independence” for the Hawks.

It is necessary to scour the judgment to ascertain what the words quoted from the court’s order, above, actually mean. PARI, very properly, recognises the criteria by which the new body parliament was ordered to form was to be known. These well-known STIRS criteria (for specialised, trained, independent, resourced and secure) explain how the new body was required to function without saying what shape or form that body would be required to take.

Instructive

The way in which the court envisaged its new body, one which has an adequate degree of independence is instructive. In its own words:

“[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 s 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. [50] 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.

[201] The point we make is this. It is possible to determine the content of the obligation s 7(2) imposes on the State without taking international law into account. But s 39(1)(b) makes it constitutionally obligatory that we should. This is not to use the interpretive injunction of that provision, as the main judgment suggests, to manufacture or create constitutional obligations. It is to respect the careful way in which the Constitution itself creates concordance and unity between the Republic’s external obligations under international law, and their domestic legal impact.”

Section 7(2) of the Constitution provides that the state must respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights.

Many of these rights are expensive to deliver. Socio economic rights to housing, education, health care and social security cost the state billions every year. A state which is captured and hollowed out by the corrupt is not a state which is capable. Certainly not capable of doing what it must in respect of the human rights to which everyone has a legitimate claim.

SA is party to anti-corruption treaties at UN, AU and SADC levels. SA also participates in the OECD anti-bribery convention. These instruments oblige SA to establish and maintain independent anti-corruption machinery of state.

Between the human rights obligations of the state and its international commitments, the court reasoned that “a body outside executive control” is needed to deal effectively with corruption.

Sadly, no such body exists.

Order against parliament

The political will to establish the body which the court ordered has yet to be formed in SA. The lack of political will does not detract from the binding nature of the court’s order against parliament, an order which also binds the president, his cabinet, the police and the NPA.

The failure to implement the binding decisions of the court referred to above is a matter that can be litigated if the two private member’s bills currently pending in parliament are rejected after they have been debated.

This position pertains because the judiciary defers to parliament on matters of making the law. New legislation is the constitutional preserve of parliament. The passage of the private members bills will fully address the lamentable failure of parliament to pass laws to create “a body outside executive control.”

These matters, apart from passing reference to the STIRS criteria, do not feature in the PARI assessment under discussion. The assessment is the poorer for it.

From a political perspective, the aversion to a body outside executive control to deal with corruption effectively is obvious. The National Democratic Revolution, the guiding light of the ANC and its alliance partners the SA Communist Party and COSATU, would not countenance a body outside executive control. The revolution is dedicated to establishing hegemonic control of all the levers of power in society, including the powerful anti-corruption machinery of state.

The strategy and tactics of the ANC are aimed at the realisation of these revolutionary goals, notwithstanding binding court decisions to the contrary. A body outside the control of the executive to deal with corruption is unthinkable to revolutionaries, but it is what is required by constitutionalists. The latter have the power of the courts on their side.

The road to a body outside executive control lies ahead; the revolutionary aspirations of those who still embrace the NDR will not be able to thwart the creation of that body whether via legislation in the seventh parliament or by way of litigation based on the failure to honour the binding nature of the finding that a body outside executive control must be formed.

Next big step

Putting the private members bills to the vote in parliament is the next big step in the process of recovery from state capture. All members of parliament will know the downside of resisting reform from the evidence emerging daily during the Madlanga Commission and the ad hoc committee hearings on the Mkhwanazi complaints. Being seen by voters to be soft on corruption will be a career limiting step for any politician in parliament. The airing of the Mkhwanazi complaints has revealed the rot in the criminal justice system.

The bills are a large part of the cure to that rot. In his evidence to the committee the new acting minister of police and former chair of NACAC, Professor Firoz Cachalia conceded that it was a mistake to close the Scorpions down.

He has yet to find peace with the notion that a single body outside executive control is legally required in South Africa to deal effectively with corruption as is required by the Constitutional Court.

*Paul Hoffman SC, a native of Johannesburg and a Wits graduate, practised law at the side bar from 1975 to 1980 and at the Cape Bar from 1980 to 2006.

*This article was first published by The DailyFriend and is republished with permission.