South Africa, Politics

Op-Ed: We need an Integrity Commission… now

By Paul Hoffman 4 October 2016

After nearly two months of analysis and introspection by the African National Congress concerning its setbacks in the municipal elections of August 3, 2016, its National Executive Committee has come up with a three-point plan to win back electoral support. Accelerated creation of jobs, curbing of crime and cracking down on corruption are the three elements of the plan announced after the most recent meeting of the NEC between September 30 and October 2. By PAUL HOFFMAN.

The third element was foreshadowed by the preliminary remarks of the Secretary-General of the ANC, Gwede Mantashe. About a month before the NEC met, he was much quicker to note that something must be done about corruption and that the ANC must be seen to be doing something about corruption.

The concept to “deal decisively with corruption” sounds promising, but does suffer from an element of vagueness that needs to be addressed if the “being seen to be doing something” part of the drive to draw voters back into the ANC fold is actually going to work.

How then should the ANC go about taking decisive action against the corrupt among us? It is the popular belief that many of the corrupt are within the ANC’s own ranks with some in leadership positions as part of the vast patronage network that has been established since 2007 when Jacob Zuma (who himself faces 783 charges of corruption) became its president. The mechanics of getting a proper grip on the answers to the rampant corruption in the land are of some importance in the development of a strategy to deal with its malevolent consequences, political, social and economic.

The government has a Medium-Term Strategic Framework for the period 2014 to 2019 which requires the development of a National Anti-Corruption Strategy. This is still a work in progress with proposals for developing it still in the process of being formulated. The process is being driven by the executive branch of government. This is being carried out without sufficient regard to the findings of the judiciary in relation to corruption and also without any regard to the fact that the Constitutional Review Committee of the National Assembly is at present mulling a suggestion that an Integrity Commission be established under Chapter Nine of the Constitution for the purpose of effectively and independently taking on the corrupt in SA society.

Clearly the NEC is aware of the government’s anti-corruption vision, objectives, strategic pillars and programmes for its strategy and is not sufficiently impressed to leave the issue of “dealing decisively with corruption” in government’s hands.

The starting point that the government is using to develop its strategy is the National Development Plan. This is a false start. The NDP was written without regard to the findings of the Constitutional Court in Glenister II and well before HSF/Glenister III was decided in November 2014. These two court cases are central to any proper consideration of the issues around dealing decisively with corruption.

The correct and proper basis for a successful anti-corruption strategy has, in law, to be the findings of our highest court in these two cases. This is because the Constitution means what the court interprets it to mean. As regards corruption-busting, the court has construed corruption to be a human rights issue and it has drawn attention to the international obligations which the state has assumed since 1994 in relation to the world-wide imperative to maintain effective and independent anti-corruption machinery of state.

Corruption is a crime; efficient crime fighting is at the core of dealing decisively with corruption in all its manifestations. Prevention, detection, investigation, prosecution and punishment are all functions of the criminal justice administration. The stark and unpalatable truth is that this administration is dysfunctional in many important respects, especially as regards corruption.

The criteria laid down by the court are: a specialised unit, with highly trained staff, structured and able to function independently with adequate resources and who enjoy security of tenure of office. (The STIRS criteria). Without these criteria safely in place there is no prospect of dealing decisively with corruption.

The wise and the well-informed in the NEC know that this is so, which is why the NEC has now gone back to the drawing board on the corruption issue instead of waiting to see what the executive branch of government develops as its “National Anti-Corruption Strategy”. It may well be that when it comes to corruption, especially in high places, the executive is part of the problem rather than part of the solution.

Glenister II was litigation in which the legislation creating the Hawks as the premier corruption busters in the country was impugned. Glenister succeeded in persuading the court that the Hawks were not, in their initial incarnation, sufficiently independent to be an effective anti-corruption body. They were found to be too vulnerable to executive influence and interference because of their lack of independence.

One has only to observe the antics of the ministers of police and state security at a press conference called to justify the Hawks investigations of SARS and its alleged “rogue unit” to realise that the Hawks remain insufficiently independent despite the changes wrought by the executive and legislature in response to losing the court case and by the court itself when the remedial legislation still fell short of what is required in terms of the Constitution.

The Hawks, as they function at present, may be regarded by the optimistic as minimally compliant with the law, by the pessimistic as anything but independent, and by the realistic as a unit which in its operations and structure is a far cry from the best practice model to which all South Africans are entitled. Doing “something decisive”, as the NEC wishes, does not involve further tweaking of the Hawks; it requires a complete rethink of the application of the STIRS criteria in a way that fully honours the international obligations of the country and gives proper respect to the human rights culture which is contemplated in our justiciable Bill of Rights.

The quickest and easiest way to deal decisively with corruption is to accept the notion of an Integrity Commission as the best practice solution that is so sorely needed. This may not be too popular with the executive, but it will be with the people in general and the voters in particular. The objective of the NEC is best achieved by instructing the cadres on the Constitutional Review Committee of the National Assembly to expedite their deliberations, giving due attention to the draft legislation and constitutional amendment before them that are required to establish the Integrity Commission to deal with serious corruption and organised crime effectively and independently. This can be doen in a way that is just not being achieved by the Hawks at present. The Hawks need not be disbanded. Their mandate extends to all manner of priority crime as their official title (Directorate of Priority Crime Investigation) indicates. The Integrity Commission, answerable to Parliament and located in Chapter Nine to complement the work of the Auditor-General and the Public Protector, will be operationally and structurally able to deal with corruption in a manner that will outshine the executive-dominated Hawks by a considerable margin. No Chapter Nine Institution is accountable to the executive. This insulates them from the type of interference the Hawks have suffered.

Johan Burger of the Institute for Security Studies observes that:

Attempts to remove honest professionals and appoint dishonourable and incompetent people at the highest echelons of the criminal justice system have severely undermined the rule of law in South Africa.

“Corruption and organised crime, by all accounts, have increased substantially since Zuma came to power, and he himself has been able to avoid prosecution despite hard evidence supporting 783 criminal charges of corruption, fraud, money laundering and racketeering.

“All South Africans are worse off for it, as there is less public money for services such as education; and more people are murdered or attacked on the street and in their homes. Let’s hope that the changing political environment will result in a system where only the best and most honest people are appointed to fight crime.

“Until that happens, we will all be worse off while those involved in crime and corruption will continue to thrive.”

Turkeys do not vote for Christmas, Jacob Zuma has no inclination or desire to appoint “the best and most honest” to the fully functional anti-corruption entity so desperately needed. But that ought not to prevent the right-minded members of the NEC from reading the writing on the wall. They have already recognised the voters’ longing for a corruption-free environment. They know that radical action is necessary to address this longing.

Richard Calland, in his new book about the next three years in SA, is more blunt than Burger. He reckons that it will only be after the Zuma presidency ends that:

A new sense of public accountability is instilled and the days of impunity are ended.”

Perhaps there are members of the NEC who have been reading Calland and understand that the high road to the future has to have corruption-busters fired up with STIRS criteria in abundance. Anything less won’t do, either electorally or in the current struggle in progress in the criminal justice administration. The Chief Justice, Mogoeng Mogoeng, has ominously warned (in the majority judgment in Glenister III) that:

… corruption is rife in this country … stringent measures are required to contain this malady before it graduates into something terminal.”

The “stringent measures” to which the Chief Justice refers certainly include the rolling out of anti-corruption machinery of state richly imbued with the STIRS characteristics. He is not alone in his opinion. In the earlier Glenister case a joint majority judgment was penned by the recently retired Deputy Chief Justice, Dikgang Moseneke and Justice Edwin Cameron. They observed that:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law, and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence, and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

Speaking for the entire court in the later Glenister case the Chief Justice summed up the situation in relation to conquering corruption thus:

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.”

It is not even arguable that the Hawks are functioning and delivering in the manner described by the Chief Justice in this passage from his judgment in Glenister III. The Hawks are knobbled by political infighting. Three members of their initial leadership face serious charges of kidnapping and defeating the ends of justice. Some, like Robert McBride of IPID, contend that these charges have been trumped up to oust those now facing charges. Either way, it is not an edifying spectacle.

The Hawks’ current leader is facing a review application aimed at setting aside his appointment as irrational due to credibility and integrity findings against him in the High Court. The findings impugn his probity and fitness for office. They have been brushed aside by the executive as mere “opinion”, a ludicrous explanation for a bad appointment made for ulterior motives.

There are many vacancies in the ranks of the Hawks and they are seriously under-resourced. Their members are not well trained and their productivity has slumped from around 15,000 arrests a year to just over 5,000. A current conviction rate of about 25% is an indication of a lack of the efficiency and effectiveness to which the Chief Justice refers.

If Burger and Calland are outspoken in their criticism, then their position needs to be contrasted with the words of Justice Johann Kriegler, a retired justice of the Constitutional Court and our first IEC chair. Justifying his decision to write the foreword of the book Rogue written by ex SARS employee Johan van Loggerenberg, a member of the allegedly (but not actually) rogue unit in SARS, he observes:

Ultimately, though, I was motivated by a personal sense of outrage at what these dirty tricks said about the rule of law in our country. For, however opaque and perverted this Kafkaesque tale, there was a discernable pattern – discernable across a number of public institutions – where key individuals, experienced, reputable and independent-minded public servants, have been cynically shunted aside, or out. Typically, the process starts with some or other alleged transgression, relatively trivial and/or outdated. That then triggers well-publicised suspension and disciplinary proceedings with concomitant humiliation, harassment and, ultimately, dismissal, constructive or actual. Then, with breathtaking speed, a hand-picked acting successor steps in and cleans out senior management; and when you look again there is a brand new crop of compliant and grateful faces.

“In the process, honourable women and men have been ground down, ignominiously kicked out, their reputations ruined and their life savings exhausted. Often even the most feisty individual has been driven to exhaustion, physical, emotional and, of course, financial. Examples of broadly the same pattern of administrative abuse are to be found in a whole range of parastatals: think, for instance, of South African Airways, Denel, Eskom and the SABC. And of numerous senior public servants – Vusi Pikoli, Mxolisi Nxasana, Glynnis Breytenbach, Anwa Dramat, Shadrack Sibiya, Johan Booysen and Robert McBride, to speak only of the criminal justice sector – who’ve been hounded out of office.”

According to the NEC of the ANC it will be necessary to be bold in responding to the challenges of corruption. What is required is “to ensure that we listen to and act on the issues raised by the people during the election campaign”.

The people” are unlikely to be impressed with anything less than the proposed Integrity Commission currently under discussion by parliamentarians. It is also currently ignored by the executive, for obvious reasons. The Commission should be in place before the 2019 elections to demonstrate that the ANC is indeed serious about dealing decisively with corruption rather than merely paying lip-service to this worthy objective in the hope of hoodwinking voters into supporting the ANC.

The idea of an Integrity Commission is right, its time is now. DM

Photo: President Jacob Zuma, has a moment to himself after retaining his position as ANC president. Mangaung, Free State, South Africa, 18 December, 2012. Photo Greg Nicolson/NewsFire

Paul Hoffman SC is a director of Accountability Now.

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