Gareth Newham, head of justice and violence prevention at the Institute for Security Studies (ISS), said it’s too early to tell whether the National Prosecuting Authority (NPA) needed a new Investigative Directorate, proclaimed by President Cyril Ramaphosa this week to tackle corruption.
Newham described a President in a bind.
Ramaphosa positioned his 2017 ANC presidential campaign and current campaign for the 2019 general elections around fighting corruption, but the SAPS unit mandated to investigate it, the Directorate for Priority Crime Investigation, better known as the Hawks, remains stacked with compromised appointments made under former Hawks boss Berning Ntlemeza.
“There are probably people within [the Hawks] that would actively resist those investigations,” said Newham on State Capture cases.
“The idea behind this new structure is that you can carefully choose each person involved,” he said.
During his State of the Nation Address (SONA) in February 2019, Ramaphosa announced that the new investigate directorate would be established in the office of National Director of Public Prosecutions (NDPP) Shamila Batohi.
A statement from the Presidency on Wednesday said the unit would investigate “serious, high profile or complex corruption” cases emerging from the State Capture Inquiry, PIC Inquiry and SARS Inquiry as well as any other cases Batohi refers to it.
“We certainly are hoping that this will be one unit that will help speed up prosecutions and hold people accountable,” said Thami Nkosi from Right2Know on Thursday.
Nkosi was concerned that the new directorate may be toothless and called for it to act against those implicated in corruption, regardless of their political standing. He said Right2Know would be waiting for summonses to be issued – “Otherwise, why would it exist if it’s not going to prosecute anyone?”
Zen Mathe from Open Secrets said the establishment of the unit follows decades of inaction and needs the gravitas to take allegations forward. “We would hope that it becomes a unit that takes what has come forward to the Zondo Commission forward to the level of prosecution,” she said.
Ramaphosa told Parliament in February that the new unit does equate to a return of the Scorpions, the NPA’s Directorate of Special Operations that led high-profile corruption cases and was disbanded following an ANC resolution at its 2007 conference.
But it remains unclear exactly how the new unit will be composed and how effective it will be.
The Investigative Directorate will be located in Batohi’s office and when the NDPP started leading the NPA February she said she wants to prosecute corruption without fear or favour. The unit will draw prosecutors and investigators from other criminal justice agencies to focus on specific cases.
“I don’t think we’ll see much before the elections,” said Newham, noting that the new unit still needs the basics, such as office space.
Appointing a director will be the unit’s first test. Newham said it needs a legal heavyweight, perhaps from the private sector, who can prepare court-ready cases that will stand up against the country’s best defence lawyers who are already billing clients preparing to defend themselves on allegations of State Capture.
He said the Investigative Directorate will benefit from being driven by prosecutors, rather than police, and may be able to bypass bureaucracy in utilising specialised and independent investigators from various authorities.
Newham said the unit will probably want to prosecute cases in the public and private sectors, but in all cases must avoid situations where charges are later withdrawn, such as in the prosecution of Duduzane Zuma and those involved in the Estina Dairy scandal.
“You basically want to go to court with all your ducks in a row.”
How the unit is funded remains a key question. The DA’s shadow minister of justice Glynnis Breytenbach said the NPA is under-resourced and the most recent Budget speech made no mention of increases in funding.
“What President Ramaphosa is doing is smoke and mirrors, a very dangerous and disingenuous game. Unless he backs up his big talk with a budget it is as good as doing nothing at all,” Breytenbach, an NPA prosecutor before she went to Parliament with the DA, said in a statement.
Newham said the unit could be funded by the criminal asset recovery account, which currently sits at around R600-million. Ramaphosa has said the unit would be funded outside the budgeting cycle and also suggested it might draw on funds recovered by the Asset Forfeiture Unit.
Some critics oppose the very formation of the Investigative Directorate, calling instead for the return of an investigative agency like the Scorpions
Hugh Glenister, who went to court to fight the closure of the Scorpions, was quoted saying the new unit would continue to sacrifice investigative independence to the whims of the current executive.
Accountability Now director Advocate Paul Hoffman SC cited the Glenister cases and said the new unit was “incapable of exercising the type of independence of action that the law requires in accordance with the criteria set by the courts”.
He said the courts ruled that the country’s leading anti-corruption body needs to be specialised, well trained, independent, properly resourced and secure in its tenure of office, but the Investigative Directorate “will not be independent, it will lack resources and by its nature it does not enjoy security of tenure of office as its members will serve Ramaphosa’s pleasure in his capacity as head of the executive”.
The unit was appointed by the President and could be disbanded by him if it gets too close to his or his allies interests, Hoffman argued. Newham said the unit was established within the current law, while appointing an institution like the Scorpions would require significant legislative changes.
The appointment of the Investigative Directorate is not meant to be a lasting solution, said Ramaphosa in his SONA address: “In the longer term, we will work with the NPA and other agencies of law enforcement to develop a more enduring solution that will strengthen the capacity of the criminal justice system to deal with corruption.” DM
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