Paul Hoffman: Scrap IDAC now - it's unconstitutional by design

By Paul Hoffman*.The good reason for closing down IDAC is not the resignation of its leader and her underwhelming showing at the Madlanga Commission. It is that IDAC is not a constitutionally compliant body and has none of the qualities required of it by the rulings of the Constitutional Court. Our anti-corruption machinery of state will not function properly unless and until parliament passes legislation that gives effect to what it was ordered to do in the Glenister litigation.A STIRS compliant single body is what the courts require, in terms that bind government. Namely: Specialised, Trained, Independent, Resourced and Secure machinery of state is required by law.An adequately independent body is required, both structurally and operationally. IDAC is not that body.The staff of IDAC is meant to be a cohesive body of highly trained specialists in anti-corruption work with the necessary “clout” (sometimes called “Sapiential Authority” to outwit the corrupt. The Scorpions received training from the FBI and from Scotland Yard, IDAC did not. The level of pep-talk of those in IDAC is of the “fake it till you make it” variety as appears from the amaBhungane research available to all here at minute 33 of the podcast called: “Tell no lies, claim no easy victories” used in a complaint lodged by Accountability Now with the OPP.Theoretically the resourcing of IDAC is meant to be guaranteed and adequate to the herculean task it faces to discharge its mandate. The actual resourcing is pitifully inadequate. Secure tenure of office should be a given in IDAC. In fact, it is as lacking in bullet-proofing as the Scorpions were, a flaw in their make-up that led to their demise and could see IDAC suffer the same fate.Before IDAC legislation was made law, the president was warned by Accountability Now that its establishment constitutes a false step:“IDAC is a wholly inadequate and deeply unconstitutional response to the urgent need for radical reform of the capacity of the criminal justice administration to counter serious corruption and organised crime. It is common cause now that the DPCI has proved to be unequal to this task for the reasons put forward by Mr Glenister in his last appeal to the Constitutional Court.Here is why both IDAC and the DSO (Scorpions) do not adequately comply with the Stirs criteria laid down in terms that bind you and government: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 ignored the warning and is now reaping the whirlwind in the form of what is emerging at the Madlanga Commission.It is now high time for parliament to accelerate the processing of the “Breytenbach bills” which are two private members bills designed to regularise the anti-corruption efforts of SA and to both establish and enable a body capable of performing as required to win the war on corruption. The bills have been languishing in the queue of pending legislation since November 2024.The “how to reform” question is easily answered on a practical and cost-efficient basis.The disbandment of both the SIU and IDAC will free up personnel who, when placed in a more conducive environment, will be able to do considerably better. Those in IDAC and the SIU who do not measure up to the criteria required by law can be transferred to SAPS or the NPA. Some recruits for the new body will be found among the Hawks. All recruits will be subjected to lifestyle audits, integrity testing and checks on the probity and integrity in the form of lie detector testing when required. The methods of recruitment and appointment advocated in the minority judgment of Justice Cameron in Glenister Three should be deployed. Proper leadership, with a proven track record, is needed. A ten-to-fifteen-year term of office, non-renewable, for the senior personnel is indicated to secure the necessary independence of the leaders.The infrastructure of the SIU should be transferred to the new body along with the best staff and equipment it has. The work of the SIU can be done, without presidential proclamations, by the new body. It will be possible to recruit from the private sector, which absorbed a lot of the best talent in the Scorpions when they were disbanded. Secure tenure of office and the necessary independence will be attractive to them and indeed to all recruits.The executive should play no role in the appointment of staff and in the operations of the new body.When the court declared in Glenister Two that “our law demands a body outside executive control to deal effectively with corruption” it was tacitly mindful of the damage to the countering of corruption that can be done by a meddlesome executive in which corruption in cabinet is tolerated or, at the least, ignored.The notion of a single body to deal with corruption makes perfect sense. SA has, up to now, used the multi-agency approach with its ineffectual hubs, task teams and cross institutional activities which have had circles run round them by the corrupt..Read more:.Paul Hoffman: Ramaphosa vows anti-corruption renewal, then puts Dina Pule back in cabinet.The abrupt but timely resignation of Andrea Johnson as head of IDAC is a timely opportunity to reconsider the workability of IDAC. The NPA, so damaged by state capture, once relieved of its current responsibility for countering corruption and organised crime, will be better able to recover and perform its mandate in respect of all crimes other than those carved out for the new Chapter Nine Anti-Corruption Commission that has been promoted by the Chief Whip of the DA, Adv Glynnis Breytenbach..*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. He took silk in 1995 and acted on the Cape Bench at the invitation of three successive judges president. After retiring from the Bar, he was founding director of the Centre for Constitutional Rights and co-founder, in 2009, of Accountability Now, both NGOs that promote constitutionalism. He is best known for his work on the irregularities in the arms deals, on the unconstitutionality of the Hawks and on the bread cartel case in which a general class action was developed by the courts. Yoga and long dog-walks on the beaches and mountains around his home in Noordhoek help keep him inspired to seek that elusive better life for all. He is the author of many articles and two books, Confronting the Corrupt, and Countering the Corrupt..This article was first published by Daily Friend and is republished with permission..Sign up for your early morning brew of the BizNews Insider to keep you up to speed with the content that matters. 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Paul Hoffman: Scrap IDAC now - it's unconstitutional by design

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