Here’s how Batohi, NPA can dismantle legal architecture of corruption – Paul Hoffman

In this impeccably-argued piece on corruption, Paul Hoffman, SC, Director of Accountability Now, outlines how the ANC has so far managed to side-step the Rule of Law. You don’t need to be an expert on the Constitution to understand his argument, which neatly lays out how our ruling politicians have either totally subverted the rule of law, (Zuma era), or paid lip service to it (Ramaphosa era), with what look like corruption-busting outfits – but don’t appear to have the necessary independent muscle. You could define this as a lack of governing competence. Perhaps they are overwhelmed in the face of Zuptoids having repurposed investigative outfits to their own nefarious ends. Or you could say it’s a conscious choice to prevent the collapse of the party, riven as it is with inefficiency and corruption that handsomely predates the Zuma State predation. Whichever, the truth comes home when Hoffman quotes NPA director Shamila Batohi on the potential for corruption within the Covid-19 counter measures. He bases his argument on her characterising prosecution services as ‘defenders and guardians of the rule of law,’ before telling us exactly how they are not – and what’s needed. A must-read! – Chris Bateman

Corruption: The Prosecution service and the rule of law

By Paul Hoffman*

It is absolutely correct, and indeed laudable, that National Director of Public Prosecutions in SA, Shamila Batohi, should remark in her piece carried by the Guardian of London in June 2020 that:

It is imperative that prosecution services confront the pandemic’s challenges and take a leading role as defenders and guardians of the rule of law.

Our “Chief Prosecutor’s” concerns about the pandemic providing the context for an upsurge in international corrupt activities are also well directed.

Paul Hoffman Accountability Now
Paul Hoffman

In the shattered milieu in which the National Prosecuting Authority currently finds itself, it is however necessary to unpack fealty to the rule of law a little further. This analysis is required because political interference in the supposedly independent activities of the NPA during and before the Zuma era was rife and deeply damaging to both the NPA and the rule of law.

The Constitution insists in section 1 that the rule of law is supreme. In section 165(5) on the topic of Judicial Authority it states that:

An order or decision issued by a court binds all persons and organs of state to which it applies.

Part of the attempted capture of the state during the Zuma era involved the nobbling of the criminal justice administration. The Directorate of Special Operations (Scorpions), which carried out investigative functions incidental to instituting criminal proceedings in corruption cases, was a unit within the NPA in the pre-Zuma era. It was summarily dissolved the moment Zuma came to power. All efforts to impugn the decision to do so came to nought. The Scorpions are dead and buried. Their independently minded staff members have departed the public service for greener pastures in the private sector or elsewhere either overseas or still in SA.

The demise of the Scorpions marked the end of the brief period during which kleptocrats were actually investigated for their wrongdoing. Tony Yengeni, Chief Whip of the ANC in the first post-liberation parliament, went to jail for fraud perpetrated on parliament. Many members of parliament who cheated on their travel allowances were convicted in what became known as the Travelgate scandal. Jackie Selebi, head of Interpol and National Commissioner of Police was found guilty of corruption. Schabir Shaik, Zuma’s “financial advisor” was also convicted for corrupting Zuma. All of these cases were won in court on the back of painstaking investigations by the Scorpions. Even the more recent John Block corruption conviction arises out of a Scorpions investigation.

Since the demise of the Scorpions no new investigations leading to convictions of notables in positions of power have taken place. The VBS management, all unknowns before the Motau report fingered them, and Angelo Agrizzi of Bosasa are the most prominent persons to appear in court on serious corruption charges in the entire life of the Directorate of Priority Crime Investigation (Hawks) which replaced the Scorpions in 2009. Agrizzi was fingered by the SIU which only has investigative and civil capacity. The SIU was unable to persuade the criminal justice administration to take any interest in its Bosasa report for ten years for reasons which became apparent when Agrizzi spilt the beans at the Zondo Commission hearings.

So concerned was President Ramaphosa, about the lack of efficiency and effectiveness in the Hawks, that upon taking office he proclaimed and established, within the NPA, a new Investigative Directorate, the ID, heading by Adv Hermione Cronje, to look into matters involving the capture of the state.

It is questionable that this step is constitutionally sound in that the investigative capacity of the NPA was ended by parliament when it repealed the Scorpions legislation and created the Hawks. The courts have laid down that the corruption busting entity of state should be free of executive control, influence and interference. The ID exists at the pleasure of the president; at the stroke of his pen it can be disbanded. This worrisome feature of its make-up also does not sit comfortably with the decision of the Constitutional Court in the 2011 Glenister case in which the criteria for anti-corruption machinery of state were spelt out clearly in a manner that binds the NPA in terms of section 165 of the Constitution.

One of these criteria is that the corruption busters should enjoy security of tenure of office. This binding feature, in effect, means that the ID should not be beholden to the president, should not be subject to closure at his pleasure and should not be influenced in what it does by reason of the power the president has over it due to being the author of the proclamation that brought it into existence.

If the NPA is to be led in a way that displays fealty to the rule of law and to the binding nature of the decisions of our courts, then it has to regard its independence as sacrosanct. It cannot have a corruption busting directorate that serves at presidential whim. It cannot, given the legislation reserving “priority crimes” for investigation by the Hawks, involve itself in the investigation of corruption (which is a priority crime) unless at the invitation of the Hawks, not the president. Given the scheme of the legislation, it ought to be prosecuting corruption matters brought to it by the Hawks “without fear, favour or prejudice”.

It is clear that the Hawks are not up to the task of investigating grand corruption, state capture and kleptocracy. The accounting officer of the Hawks is the National Commissioner of Police who in turns answers to the minister of police, currently Bheki Cele, himself a former (and disgraced) National Commissioner of Police who was dismissed by Zuma after the Moloi Board of Inquiry found him to be “incompetent and dishonest” and recommended that he be investigated for corruption.

The public of SA will know that the NPA and Hawks are not merely paying lip service to the rule of law when a docket against Cele is opened, investigated and prosecuted.

Within the ranks of the NPA there lurk a cadre of deployees of the Zuma era to whom Cronje refers as “saboteurs”. Carefully and strategically appointed during the Zuma era, these saboteurs are still in position to do the bidding of the Zuma faction of the ANC. They are able to bury dockets in piles of impossible queries, to make them disappear and generally to ensure that handcuffs and orange overalls do not feature in the future of those whom they were appointed to protect and to whom they owe an allegiance that is stronger than their theoretical allegiance to the NPA and the rule of law. It will be well-nigh impossible to winkle out these cadres. Only two of them, advocates Jiba and Mwrebi, have grudgingly left after an extended and exhausting dispute involving the Mokgoro Board of Inquiry and some litigation too. The NPA does not exist to conduct boards of inquiry into its leadership and senior ranks, it is meant to prosecute wrongdoers both fairly and thoroughly.

According to Robert McBride, who should know, the NPA has been “hollowed out” during the Zuma era. It will take many years to recover from this hollowing out and it will limp along while it works the “saboteurs” out of the system over the years.

If Batohi is to be true to the words quoted from her lips above, she should dust down the Glenister decision and find the best-practice means of implementing it in the interests of the rule of law and the obligation of the NPA to be bound by its decisions on the criteria for proper corruption busting.

A reasonable decision-maker in the circumstances now appertaining in SA could properly implement the criteria for independent corruption busting in a variety of ways. It is suggested, and has been for a long time, that the best-practice method for doing so is to establish a new Chapter Nine Institution, the Integrity Commission (CH9IC) to prevent, combat, investigate and prosecute grand corruption.

The best personnel in the Hawks, the NPA and the SIU could, duly supplemented by those who fled to the private sector when the Scorpions were disbanded, form a new entity with the necessary esprit de corps. The law requires a specialist unit totally dedicated to corruption busting. It should have properly trained personnel who enjoy a level of security of tenure of office that was not in place for the Scorpions. (As mere creatures of statute the Scorpions were closed down by a simple majority in parliament – that could not be the fate of the Ch9IC as a special majority would be needed).

The new corruption busters would be properly resourced in guaranteed fashion and would be able to function free of political influence, interference and control. These are the criteria set by the Constitutional Court in the majority judgment of Deputy Chief Justice Moseneke and Justice Cameron.

During the Zuma presidency it was too much to expect a “best-practice” response to the judgment. Indeed, the opposite occurred when parliament did as little as possible in tweaking the Hawks legislation to try to make it comply with the criteria by which it was bound. Minimalist compliance has clearly not worked, confidence in the Hawks – if it ever existed – has waned and the time is ripe to improve the structure and operations of the state as regards its duty to counter the corrupt. The NPA leadership should reflect on the capacity of the NPA and Hawks to deal effectively, efficiently and economically (section 195(1)(b) of the Constitution) with corrupt activities and make its suggestions for reforms based on a more thorough and whole-hearted implementation of the decision of our highest court.

Batohi is also right in relation to the expected upsurge of corruption in high places due to the need to urgently procure goods and services due to the pandemic. This was anticipated by Judges Goldstone and Wolf of Integrity Initiatives International at the start of the pandemic. They wrote in the Boston Globe:

Very little is certain about the coronavirus, and we are only judges, not prophets. However, we can confidently predict that the response to the pandemic will be a bonanza for kleptocrats — an opportunity for the corrupt leaders of many countries to further enrich themselves.

Governments are poised to provide trillions of dollars to counter the pandemic, without even the usual, often ineffective, safeguards to assure that the funds are properly spent. The coronavirus will, therefore, provide additional compelling proof that the world needs an International Anti-Corruption Court to punish and deter kleptocrats who enjoy impunity in the countries they rule.

Corruption has devastating consequences for human health. As the United Nations High Commissioner for Human Rights said in 2013: “Corruption kills. . . . The amount of money stolen through corruption is enough to feed the world’s hungry 80 times over. . . . Corruption denies them their right to food, and in some cases, their right to life.”

The stakes are high. The need for independence in corruption busting is undeniable. The opportune time for reform is now. It will not do to wait for the NPA to heal from its “hollowing out”, that will take more time than is available for SA in its post-pandemic problem-solving phase. A Ch9IC ought to be supported by the NPA and by its leaders if credence is to be afforded to the loyalty of the NPA to the rule of law and indeed to its own independence.

Batohi was assured of that independence before she accepted her appointment; it is up to her to claim it now.

  • Paul Hoffman SC is a director of Accountability Now; he was lead counsel for Glenister in 2011. He is also on the board of Integrity Initiatives International.
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