In a promising turn of events, Frank Chikane, a seasoned ANC veteran, assumes the role of chair of the Integrity Committee, signaling a potential shift towards combating corruption within the party. Chikane’s appointment comes shortly after Secretary General Fikile Mbalula acknowledged the mistake of disbanding the Scorpions, a move that fueled a culture of unchecked corruption in South Africa. Chikane’s involvement in the Defend Our Democracy campaign, which advocates for the establishment of a constitutionally compliant anti-corruption institution, positions him well to spearhead much-needed reforms. As the ANC grapples with internal challenges and the need for radical change, Chikane’s influence may be pivotal in promoting ethics, integrity, and accountability within the party and the nation at large.
Working together is good, if objectives are constitutionally sound
By Paul Hoffman
There is good news out of Luthuli House: Frank Chikane has taken over as chair of the Integrity Committee of the ANC. This comes hot on the heels of the announcement by Secretary General Fikile Mbalula that it was a mistake to disband the Scorpions.
Chikane is an experienced and valued ANC blue-blood. He served in the office of the president when Thabo Mbeki was national president and, more recently, has been at the forefront of the efforts of the Defend Our Democracy (DOD) campaign to right the ship of state by countering the culture of grand corruption with impunity that has flourished in SA (and particularly in the ANC) since the election of Jacob Zuma as president back in 2009, an event which brought about the demise of the Scorpions. The DOD campaign supports the establishment of constitutionally compliant anti-corruption machinery in the form of a new Chapter Nine Institution to prevent, combat, investigate and prosecute serious corruption. The ANC seems to be in a state of flux on this reform; cabinet does not deem it necessary and has ignored the call for far reaching reform made by the NEC of the ANC.
Stephen Grootes, writing for the Daily Maverick, in welcoming Chikane’s appointment, points out that Chikane will have his work cut out for him because there are so many rotten apples in the upper echelons of the ANC. There is a tendency to persist in appointing dubious characters to key positions. While the criminal justice system limps along as it does, it is going to be difficult to dislodge the culture of corruption without consequences that has so infected our body politic. Unless of course the influence of Chikane causes the necessary reform to be implemented. Ethics and integrity will improve markedly as soon as fangs are bared, orange overalls issued and the loot is raked back. The deterrent effect of proper law enforcement against the corrupt cannot be over-emphasized. Theirs is a secretive crime, cunningly contrived and carried out in a way that all to often leaves the victims unaware of the commission of the crimes involved in all corrupt activities.
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In a related Financial Mail story concerning positive developments on the thorny topic of inviting Russian President Putin to attend the BRICS summit in Johannesburg in August, an unidentified government source of Natasha Marrian’s is quoted as saying: “Defying a decision of the court has huge implications.[If] the government wants citizens to obey the law, it can’t be seen then to be consciously violating it. There cannot be a repeat of what we did with Bashir.”
That source, whoever he or she may be, needs to bring into the consciousness of the Ministry of Justice that it is defying the decision of the Constitutional Court in Glenister 2 by persisting with the failed experiment of replacing the Scorpions with the Hawks insofar as investigation of serious corruption is concerned. Without specialists on the task of investigating, successful prosecutions are few and far between.
There is general agreement that the Hawks have not been a success on the corruption front. They do other good work on their “priority crimes” portfolio, but they are operationally and structurally incapable of acquitting themselves of the task of investigating corruption in high places due to their lowly status as a directorate within SAPS, under the control of the National Commissioner of Police and accountable to the Minister of Police. The latter’s suitability for high office is questionable.
The current thinking in cabinet is that government is free to upgrade the Investigating Directorate of the NPA to what it calls “permanent status” and thereby solve the problems of corruption with impunity. This is, at best, an unconscious violation of the decisions of the courts that sat in the Glenister litigation.
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As the Constitutional Court has already chosen the ingredients for the recipe needed for effective and efficient countering of corruption, and has enjoined parliament to make the reasonable decision of a reasonable decision-maker in the circumstances, it is plain that the cake cabinet now wants to bake is not up to the standard that is both required and binding on it. Once it knows this is so, the game is up. Constitutionally compliant radical reform ought to be the urgent business of government. Chikane, with his DOD experience, is well placed to point this out to government now that he is back in Luthuli House. Following on reform at national level his job at party level will be a lot easier.
The intended upgrading of the ID will be a huge flop, the cake will not rise to the occasion.
The upgrade will not pass constitutional muster for the following reasons:
Independence from political influence, interference and impedance will not be achieved because the reformed ID will still be within the NPA and accordingly under the final responsibility of the minister of justice. The accounting officer of the NPA is the DG of Justice, a further insult to its independence. The courts have decided that the anti-corruption entity should not be under the control of the executive. The reporting line ought to be to parliament where the multi-party nature of the body is a guarantor of accountability that is not exacted by the executive, especially not an executive riddled with mafia type operators.
The head of the Assets Forfeiture Unit within the NPA was obliged to concede in recent correspondence that “Neither myself nor the NDPP [Shamila Batohi] are able to interfere or intervene in supply chain processes. We have to trust the process.” The process is under the control of the accounting officer who is not even a member of the NPA.
Secure tenure of office within the NPA, and created by an ordinary statute, is not possible, as the Scorpions learned to their cost. The ID, if and when made “permanent” as planned by cabinet, will be no better off than the Scorpions were before they were dissolved.
Both independence and secure tenure of office are criteria set in binding terms by the decisions in the Glenister litigation.
Cabinet does not regard these self-evident facts to be true.
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The minister of justice regards the findings of the minority judges, as set out in the judgment of Chief Justice Ngcobo, to be binding on government. This is a misstatement of the law, as any lawyer who reads the judgment of the majority in the case, penned jointly by Deputy Chief Justice Moseneke and Justice Cameron, will know. The confusion arises because the judgment of the Chief Justice, which deals with all the points in the case, is styled the “main judgment” in the law reports and sets out the views of the minority on the points on which the majority prevailed. The minister has, quite wrongly, latched onto these points.
In the binding majority judgment, the human rights commitments of SA and its participation in anti-corruption treaties at UN, AU and SACD levels are given as the rationale for requiring superior anti-corruption machinery of state that is compliant with the well-known STIRS criteria, namely specialized, trained, independent, resourced and secure in tenure. These criteria were set in the majority judgment in Glenister 2 and were confirmed in Glenister 3. In their original incarnation the Hawks did not pass constitutional muster.
It was thought, back then, after much tinkering, that the third incarnation of the Hawks would be adequately independent. The court, in Glenister 3, was not prepared to take into account the warnings of experts that grand corruption was rife in SA back in 2012. This state of affairs has been revealed by the Zondo Commission in its report in 2022.
The Hawks have not been a success in the anti-corruption field and no one is suggesting that they have the structural and operational capacity to bring to bear the clout (or sapiential authority) necessary to make a success of countering the corrupt.
Frank Chikane is well-placed to bring into the consciousness of government the fact that it has failed, and continues to fail, to implement the STIRS criteria properly, as it is obliged to do in terms of the joint majority judgment in Glenister 2. Once he does so, constitutionally compliant reform becomes inevitable.
The other new development – that big business and cabinet are now working together on issues affecting the nation, and in particular on corruption, is the occasion for drawing the wrong-headed approach of the justice ministry to the issues around reform of the criminal justice system so as to better capacitate it to counter serious corruption.
It is not enough to throw money at the problem. The NPA is hollowed out and saboteur infested, the ID is puny and small, the Hawks don’t cut it as investigators of serious corruption and never will. Anyone who casts a cold but serious eye over these circumstances is driven to the conclusion that radical reform of the criminal justice system is required.
If big business is reaching for the proverbial cheque book to solve the problems caused by unrestrained serious corruption, the cheque should be made out to the new Chapter Nine Institution that is needed to give effect to the criteria set in the judgments of our highest court. Anything less invites litigation that is aimed at achieving proper compliance with the law as it was laid down in Glenister 2 and confirmed in Glenister 3. Big business is well-placed to get government to do the right thing. In the circumstances in which the country now finds itself, radical reform of the criminal justice system that makes it STIRS compliant is the only avenue worth exploring by big business, if any return on investment is expected. Money simply thrown at the NPA and Hawks in the hope that it will magically capacitate them so many years down the line, is wasteful expenditure in the fight against serious corruption.
Captains of business and industry should get together with Chikane and work toward the establishment of constitutionally compliant anti-corruption machinery of state. It is the best way to defend our democracy.
Read also:
- Secretary-General Mbalula dodges accountability as SA’s problems continue to pile up – Ivo Vegter
- Lindiwe Sisulu: In-depth insights, outliving ‘dark’ forces and hope for SA’s future
- How the world sees SA – GIS on “The lost promise of South Africa”
*Paul Hoffman SC is a director of Accountability Now
