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With headlines almost daily on government financial scandals and backhanders for civil servants increasingly common, no-one is under any illusion that corruption is a major blight on South Africa’s business and investment landscape. In this article, Paul Hoffman hammers home the reality of the difficulty of cleaning up on corruption. Arrests are significantly down on previous years, yet it will take an estimated 20 years to clear the current case backlog, such is the way the wheels of justice turn. There are an estimated 3,000 ‘open and shut’ cases that aren’t even being dealt with. That’s just for starters. Also problematic are the structures established to deal with corruption, in particular the Hawks. Hoffman, a director of Accountability Now, sets out the details of how the Hawks emerged – and the technical and human resource-related reasons this unit is doomed. If there is a genuine desire by ANC leaders to be “merciless” in corruption-busting, work needs to start immediately on overhauling the task force. Let’s have the Eagles, says Hoffman. They fly higher and go after bigger prey than hawks. – Jackie Cameron
By Paul Hoffman*
One of the more interesting announcements after the pre-SONA cabinet meeting was that related to the thorny issue of corruption. Cabinet members let it be known that it is the intention of the government they lead to deal “mercilessly” with corruption. This ought to be good news for the country, its long-suffering taxpayers and the poor. It is particularly the poor who remain vulnerable due to the diversion of funds and resources, intended for their upliftment, to the corrupt. In the context of public procurement, corruption can plausibly be defined as “theft from the poor”.
Digging deeper into the darker recesses of current ANC thinking on corruption reveals an alarming titbit from the press release that followed the meeting of the National Executive Committee of the ANC held in January 2017. It reads:
“Corruption, in both the public and the private sectors, undermines governance and the rule of law, as well as the authority and credibility of government institutions. Government must expedite the integrated anti-corruption strategy, enhance the co-ordination of anti-corruption agencies and improve the remuneration of corruption fighting personnel.”
It is presumably in response to this directive that cabinet has resolved to deal “mercilessly” with the corrupt.
In a country in which the rule of law is supreme and the Constitutional Court has the final say as to what the Constitution and the law actually mean, it is both disappointing and worrisome that the NEC and cabinet have so little regard to the criteria for corruption busting that have been laid down in binding fashion by that court.
Johannesburg businessman, Bob Glenister, has litigated on three occasions in the Constitutional Court on the topic of the adequacy of the anti-corruption machinery of state in SA. On the first occasion he tried to save the Scorpions or Directorate of Special Operations, a unit in the prosecution service that enjoyed great success in investigating and prosecuting the corrupt. It did so on its own, using a troika system in which investigators, prosecutors and experts combined to efficiently bring the likes of Schabir Shaik and Jackie Selebi to justice. The former was the financial advisor to Jacob Zuma, the latter the national commissioner of police. Both, in separate trials, were found guilty of corruption and sentenced to 15 years imprisonment. More recently John Block, the Northern Cape politician, has been found guilty of corruption following a Scorpions investigation.
Glenister’s attempt to save the Scorpions failed. The Court took the attitude that if he was dissatisfied with their replacement, he could return to impugn the legislation that would create their replacement – a police unit dubbed the Hawks but officially called the Directorate of Priority Crime Investigation. Parliament had created the Scorpions by way of ordinary legislation and could close them in the same way. This was the greatest weakness of the Scorpions; they did not enjoy security of tenure of office and paid the ultimate price when the investigative attention that they gave the politically well-connected became too much for the ANC to bear. This led to the passing of a resolution at its Polokwane conference in December 2007 to dissolve the Scorpions urgently.
Glenister was dissatisfied with the structure and operational capacity of the Hawks and returned to court to impugn the legislation that created them for its want of compliance with the Constitution.
In a seminal judgment, now called “Glenister II”, the court divided 5-4, on 17 March 2011, in deciding that the Hawks legislation did not pass constitutional muster. The court characterised corruption as a threat to the state’s obligations to respect and protect human rights that are guaranteed to all in the Bill of Rights. The existence of this threat to human rights obliges the government to create anti-corruption machinery of state that is effective and adequately independent to acquit itself efficiently of the task of fighting the corrupt. The international obligations of the country also create a similar duty according to the court’s analysis.
In its majority judgment, which is binding on the government, the court laid down the five criteria of the constitution for the creation of the type of anti-corruption machinery required in terms of these obligations. Anything less is invalid for want of consistency with the constitution.
Firstly, there is the specialisation criterion. The court recognised the need for a dedicated unit that gives full time attention to fighting corruption.
Secondly, there is the training criterion. Recruits to the Scorpions had been sent to Scotland Yard and to the FBI for advanced corruption-busting instruction. Without it, the prospects of getting to grips with the corrupt, a resourceful and cunning bunch of criminals, are bleak.
Independence is the third criterion. The ability to act without fear, favour or prejudice, free from outside influence and political interference is vital to the effective functioning of the unit. Both structural autonomy and operational independence are required.
Resources that are adequate and guaranteed are the fourth criterion. The NEC’s current call for better pay for the personnel involved in anti-corruption work is a tacit acknowledgement that this criterion is not being met. However, this criterion also covers infrastructure and equipment. These too are currently in short supply. Visit any Hawks office and be appalled by the dereliction and disorganisation on display.
Finally, the personnel involved should enjoy security of tenure of office. This is what the Scorpions did not have as they were mere creatures of statute. So are the Hawks, which is troubling.
Having spelt out the criteria, the court gave parliament 18 months to devise remedial steps to create an effective and independent substitute for the Hawks.
Between them, the executive and national legislature took all but four days of the 18 months to come up with the Hawks second incarnation. They remained housed in the police and their structure, powers and operations were tweaked as little as possible in order to comply, or give a semblance of complying, with the five criteria.
Unimpressed, Glenister returned to court to once again to impugn the constitutionality of the Hawks. On this occasion, a unique third visit to Braamfontein by an individual litigant, he was joined by the Helen Suzman Foundation in a separate but similar application.
The Chief Justice delivered the majority judgment in November 2014 in the case now called HSF/Glenister III. He had been in the minority in Glenister II, but very properly applied the majority’s five criteria to the amending legislation and found it wanting in numerous respects. Instead of referring the matter back to parliament again, the court decided to adjust the legislation in an effort to make it constitutionally compliant. This involved the deletion of some provisions and the amendment of others.
The Hawks have gone from bad to worse since 2014. Repeated illegal efforts to get rid of KZN Hawks chief General Johan Booysen have failed. He is unloved by those in authority in the police and the prosecution service because of his willingness to investigate powerful politically connected suspects. General Anwa Dramat, first head of the Hawks, suspended in December 2014 (for having the temerity to ask for the Nkandla dockets, which have been kept well away from the Hawks), was given a golden handshake in 2015. He now faces charges of kidnapping. His successor, Berning Ntlemeza, illegally appointed by the Minister of Police, has a High Court credibility and integrity finding against him and should be dislodged from office in civil proceedings assailing his promotion.
The work rate of the Hawks has plunged from 14,793 arrests in 2010/11 to 5,847 in 2014/15. According to the Auditor General some 3,000 slam-dunk cases of corruption against public servants involved in procurement are not being attended to by the criminal justice administration. The NPA boasts of 151 convictions of public servants in the last two years. At that rate, it will take 20 years to deal with the backlog alone. When the new Public Protector received a complaint about this sad state of affairs she asked that it be referred to the Justice Portfolio Committee of the National Assembly. It has been so referred, but there is no sign of progress on that front.
The fundamental difficulty with the stance of the NEC and cabinet, as set out above, is that neither is paying any attention to what the court has laid down in the Glenister cases. The fact that the criteria are binding and enforceable against the state seems to have passed them by. This is how the Chief Justice began the November 2014 judgment:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that 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 that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
If one compares what the Chief Justice says, so authoritatively, with the sounds emanating from the NEC of the ANC and the cabinet, it is plain that the court is on a different page to the governing alliance. Getting to grips with corruption is best done in the manner laid down by the court. By law, it is the only way to go. It is to create a single agency of state that is the embodiment of the five criteria laid down as long ago as March 2011 and confirmed in November 2014 by the court.
It is time for a rethink by government and for its compliance with what the court has ordered. Lip-service and the mouthing of platitudes during SONA won’t do. If there is a genuine desire to be merciless with the corrupt, then the establishment of a new Chapter Nine Institution clothed with the criteria laid down by the court is long overdue. A standing commission against corruption will complement the human rights work of the SAHRC, the audit work of the Auditor General and the mandate of the Public Protector to deal with maladministration in the affairs of state and the public administration. The new commission will be charged with preventing, combating, investigating and prosecuting corruption wherever it is found, whether in the private or the public sector. The Auditor General and the Public Protector have no say over the private sector.
Government ignores what the court has ordered at its peril. Under the constitution, court orders must be obeyed, on pain of being held in contempt of court. The current shambles in the Hawks is hardly compliance with the Chief Justice’s notion of a single agency dedicated to getting rid of corruption. The dysfunction of the Anti-Corruption Task Team and the big backlog of cases are intolerable. A single unit is needed. It is also required by the court. If it is given a nickname (as was done with the Scorpions and the Hawks) then call it the Eagles. Why? Because eagles fly higher than hawks, see further, and go after bigger prey. At Accountability Now we call it the Integrity Commission, elsewhere in the world it is often called an Independent Commission Against Corruption. ICAC is an unfortunate acronym in SA. IC has a better tone to it.
- Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt”