In his State of the Nation Address, President Cyril Ramaphosa announced plans to form a corruption advisory council. Paul Hoffman has detailed exactly why this plan won’t work in his previous article on the anti-corruption machinery of the state. Hoffman warns that the time for pondering a treatment plan for the cancer of corruption has come to an end. While the president of the country mulls his anti-corruption protocols, saboteurs have ripped out the teeth of the criminal justice system in the country, leaving the corrupt free to pick at the vital organs of State and democracy. The State Capture Commission has exposed the rot for all to see. A Chapter Nine Integrity Commission is the best medicine and Cyril Ramaphosa must act now, says Hoffman. – Melani Nathan
Mulling over what to do about grand corruption is taking too long
By Paul Hoffman*
Mr President, the time for mulling it over is over.
There is one specific area of reform that is critical to the future trajectory of the country, its economy and the well-being of all who dwell in this lovely land. Reform is most urgently needed in the Zuma-blighted criminal justice administration in our nascent multi-party constitutional democracy, a new form of government for SA embraced by a vast majority of voters in 1994.
The current criminal justice administration, by the admission of its own leadership, has been hollowed out, compromised, filled with “saboteurs” and rendered dysfunctional due to the ravages of the Zuma era State Capture project. The innards of that project are currently being picked over in the minutest of detail and the most shocking of scope in the evidence meticulously presented before the State Capture Commission presided over by Deputy Chief Justice Raymond Zondo.
The neutralising of the capacity of the criminal justice administration was effected by Zuma to ensure that the looters, kleptocrats and their fellow-travellers would enjoy immunity and impunity for the malfeasance involved in State Capture. So ingrained has the culture of corruption with impunity become that the “Thief in Chief”, former president Jacob Zuma, is currently cocking a snook at the efforts to get him to testify before Zondo DCJ – displaying defiance of the law that ought to attract much more concern than is currently the case.
The way in which Zuma went about hollowing out the capacity of the state to deal with the corrupt began at the Polokwane conference of the ANC in December 2007. At that conference, he was elected president of the ANC. His miraculous recovery from being fired as Deputy President was followed by a great deal of groundwork at branch level that left his opponent, then-President Thabo Mbeki, well short of the votes required to retain the leadership of the ANC.
Ace Magashule is busy with similar groundwork at present, having almost doubled the membership of the ANC since he ascended to the position of Secretary-General.
At the 2007 Polokwane conference, an urgent resolution was passed directing cabinet to dissolve the Scorpions unit in the national prosecuting authority (NPA) by transferring its investigative personnel to the police. The real reason behind this resolution was to protect Zuma and other ANC bigwigs from the unwanted attention they were getting from the Scorpions investigations into the arms deals, the relationship between Zuma and Schabir Shaik (leading to the latter’s conviction for corrupting Zuma) the travelgate scandal and many other early instances of State Capture.
The resolution taken was put into effect in spite of strong opposition in parliament and litigation aimed at heading off the scheme as an illegal and irrational move. When the Hawks, a police unit tasked with, inter alia, the investigation of corruption, came onto the statute book, the Hawks presence there was immediately challenged by Bob Glenister, a Johannesburg businessman who felt a strong sense of indignation at the disbanding of the Scorpions.
On 17 March 2011, his case was finally successful in the Constitutional Court. The STIRS criteria defining effective anti-corruption machinery were born in its majority judgement.
In order to comply with SA’s international treaty obligations and to uphold the commitment of the State to “respect, protect, promote and fulfil” the human rights guaranteed to all in the Bill of Rights “effective and efficient” anti-corruption machinery of State is required in terms of the Court’s binding ruling. It was signally absent throughout the Zuma presidency. In order to be constitutionally compliant that machinery must be specialised, trained, independent, resourced and secure in tenure of office. STIRS compliant. The Zuma administration’s failure to implement these criteria is no less contemptuous than his current display of contempt for the Constitutional Court order that he attend the State Capture Commission for interrogation.
The Scorpions had all of the STIRS qualities except the last. They were a mere creature of an ordinary statute and could be closed down by a simple majority in parliament. That is what occurred when Zuma swept to power on his “tsunami” of popularity in the ANC, later dubbed the “biggest mistake in history” by Zweli Vavi, who first coined the tsunami appellation. Their lack of security of tenure of office proved to be the Achilles heel of the Scorpions. They are no more and the country is the poorer, by over a trillion rand in loot, for their demise.
The prosecutors of the land are currently hobbled by the presence of what the new good ones call “saboteurs” in their ranks. Those who see to it that unwanted prosecutions of the corrupt do not see the light of day. It will take many years and many disciplinary inquiries to rid the prosecutors of the burden of those deployed cadres put in place to ensure the impunity of those involved in the State Capture project of the Zuma era.
The National Executive Committee of the ANC is aware that the investigation and prosecution of corruption are still sub-optimal more than three years after the resignation of Zuma as president. It publicly announced on 4 August 2020 that it had urgently instructed the national cabinet to establish a single, stand-alone, specialized and independent agency to deal with corruption. That resolution ends the long debate within policy-making ranks as to whether the multi-agency approach favoured in the National Anti-Corruption Strategy (accepted by cabinet) should be persisted in despite its manifest lack of success. The answer arrived at by the NEC resoundingly endorses the single agency approach, one used widely in the countries with the greatest record of success in countering the corrupt.
During his state of the nation address, the president indicated that:
“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to parliament.”
The Advisory Council is entirely unnecessary. The highest court in the land has spelt out what is required, the NEC has understood what is required and all that remains is the implementation of reform. An Advisory Council will take time to establish, cost a lot of money the country does not have, and it will, if it does its work honestly, advise that the government is bound to implement the STIRS criteria in the necessary reform of the criminal justice administration. The DA shadow minister of justice has strongly criticised the idea of establishing yet another talk shop when action is what is urgently required to address the culture of corruption with impunity that has been allowed.
This slide has occurred because the government, since 2007, has been unwilling to whole-heartedly comply with the binding rulings of the courts, not only in 2011 but again in 2014 when the current Chief Justice re-affirmed the applicability of the STIRS criteria.
A mere statutory anti-corruption body will be indistinguishable from the Scorpions in its legal architecture. That architecture was torn down by a simple majority in parliament thus enabling the success of State Capture. The new body, given Magashule’s machinations, could suffer the same fate for the same reasons despite its reporting line to parliament, which is a definite improvement that is STIRS compliant.
The possibilities of executive control, influence and interference in the anti-corruption machinery of state must be eliminated in order to avoid the bloodbath of the Zuma years in which all manner of manipulation was the order of the day. The decapitation of the NPA by the shafting of its leader by Zuma is the most glaring illustration of the rogue nature of the Zuma administration. His criminally corrupt activities in ridding his administration of the independent, but unwanted, Mxolisi Nxasana still goes unpunished and has not been prosecuted despite being a short sharp case that is easily proved because the transaction has been set aside in the civil courts already. Criminal charges, with an accompanying draft charge sheet, settled by two independent senior counsel, were laid against Zuma by Accountability Now in July 2015; they languish unattended on the desk of a prosecution service without the will to act without fear, favour or prejudice. Nxasana was shown the door because he let it be known that he was prepared to prosecute Zuma.
The paralysis of the prosecutors is likely to last for years due to the cadre deployments of the Zuma era. A new entity is required, as has been recognised, both by the NEC on 4 August 2020 and now by the president on 11 February 2021. It is also all well and good that the new entity should report to parliament and not the executive. The Hawks are under executive control as part of the police service and the minister of justice has “final responsibility” for the NPA. The new body, reporting directly to parliament, will enjoy greater independence than the police and prosecutors currently enjoy.
In March 2019 the president was asked by the Chief Whip of the Inkatha Freedom Party, during question time in parliament, to consider establishing what is widely regarded as the best practice means of implementing the binding STIRS criteria of the Glenister litigation rulings: a new Chapter Nine Institution to deal with the investigation and prosecution of corruption. The Honourable Singh called it an “Integrity Commission”.
The president’s response was instructive: he found the idea interestingly “refreshing” and promised parliament that he would mull over the notion.
The product of his mulling, as announced in SONA on 11 February 2021, falls short in one major respect: the new body he envisages cannot possibly be constitutionally compliant if it is of statutory nature. The fate of the Scorpions proves this. Secure tenure of office is a necessary attribute of the machinery of state that deals with corruption. Its staff cannot be constantly in jeopardy of losing their jobs because they investigate and prosecute politically exposed persons, high ranking public servants and politicians. The Scorpions lost their jobs for doing just that – institutional memories are elephantine.
It accordingly behoves the president to give effect to the NEC resolution, rethink the statutory nature of the new body he wants, and instruct his cabinet to move rapidly to establish a Chapter Nine Integrity Commission (Ch9IC) to investigate and prosecute the corrupt, rake back the loot and create a climate of corruption-free progress in which business confidence is restored, trust in government enhanced and prosperity for all ensured. As head of state, the president has been required by the courts to make the “reasonable decision of a reasonable decision-maker in the circumstances” – it cannot possibly be reasonable to recreate the Scorpions as a stand-alone body that is vulnerable to the fate they suffered.
All Chapter Nine Institutions enjoy independence that is constitutionally guaranteed, none of them may be closed down without the vote of at least two-thirds of the National Assembly and their leadership is protected against arbitrary or swift dismissal, as illustrated by the recent history of the Public Protector, a Zuma deployee who is alleged to have captured that institution to advance his nefarious ongoing agenda.
It is a given that the appointment procedures of the new Ch9IC will have to be tightened up to ensure that persons of integrity and probity are installed to lead us away from corruption with impunity toward the proper implementation of the rule of law and the vigorous pursuit of those who break the law corruptly.
The President knows that participation in appointment procedures is vital; he created a good but informal precedent with the appointment of Shamila Batoyi to head the NPA, a precedent that could and should be formalised and followed. It may be advisable to dust down the minority judgment of Justice Cameron in the last Glenister case and give consideration to the suggestions of Professor Hugh Corder, CASAC and Corruption Watch which were made to the Zondo Commission in February 2021.
The salutary practice of integrity testing introduced by Willie Hofmeyr in the Special Investigations Unit years ago should also be used on recruits before they are given specialist training of the kind the Scorpions enjoyed at the FBI and Scotland Yard.
The time for “mulling over” is long past. The notion of a new statutory body is not constitutionally compliant as it will be no better off than the dissolved Scorpions unit. The notion of a new Ch9IC is the best practice means of implementing the August 2020 resolution of the NEC and of implementing the binding Glenister litigation rulings. The time for decisive action to set up the Ch9IC has arrived.
- Paul Hoffman SC is a director of Accountability Now, he was lead counsel in the Glenister litigation.
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