A Common Thread
- Paul Hoffman
- 14 Dec 2016 (South Africa)
Not least because of their sterling efforts to dodge the “junk status” bullet, the Minister of Finance, his deputy and his team and the Treasury won top honours in Daily Maverick’s Person of the Year awards.
Runners-up were the Constitutional Court and its leaders, while former Public Protector Thuli Madonsela received an honourable mention for her sterling efforts in speaking truth to power during her last year of tenure.
All of those honoured by the Daily Maverick have comported themselves with integrity by standing up against the corrupt among us and remaining true to the values and tenets of our constitutional order.
At some level, those who made the choices for the awards were motivated by their concern that corruption is the crunch issue of 2016 and that the winners are all creating ripples of hope for a better future in 2017 and beyond.
It is prudent to reflect on exactly how that better future, one in which corruption is not the dominant characteristic of our national discourse, is to be achieved.
By opting for a multiparty democracy under the rule of law, with a justiciable Bill of Rights, South Africa has, since 1994, embraced constitutionalism and is theoretically well placed to ward off the ravages of corruption. We have a free press, independent courts and Chapter Nine Institutions to support and strengthen constitutionalism. Civil society is stronger in South Africa than anywhere else in Africa. These features of the body politic serve as a bulwark against those who prefer to allow their greed to drive them to the essentially criminal life that corrupt activities entail.
As a member of the family of nations, we have accepted the terms of the UN Convention against Corruption and have also subscribed to continental and regional instruments that put the nation firmly on the trajectory of activism against corruption. Our international obligations compel us to keep effective and independent anti-corruption machinery of state that is capable of efficiently warding off the scourge that stalks the modern world in the form of corruption and organised crime. The mere fact that the Daily Maverick can publicly label members of Cabinet as “minions” of a family that “knows not the meaning of shame” and call President Zuma their “number one marionette” without any fear of a defamation action from any quarter, tells us how low the nation has sunk in the despicability stakes.
At the level of the United Nations we have accepted the Sustainable Development Goals, one of which insists on “strong institutions” as a bulwark against corruption.
It is in the institutional aspects of combating and preventing corruption that SA has shown weakness in the Zuma era which started inauspiciously with the disbanding of the Scorpions, an anti-corruption unit within the National Prosecuting Authority. Their replacement, a police unit called the Hawks, has never matched the work rate, effectiveness and efficiency of the Scorpions. The demise of the Scorpions is attributable to their willingness to seek out and prosecute the corrupt without fear, favour or prejudice. Now, the Minister of Finance wins a prize for standing up against their successor, the Hawks.
The change from Scorpions to Hawks was not without controversy. Both Gordhan and Jonas voted for the change. A more senior colleague in the ANC caucus, Professor Kader Asmal, reading the writing on the wall most astutely, resigned from Parliament rather than vote for the disbanding of the Scorpions and for their replacement with the Hawks.
When the constitutionality of the legislation that effected this change was litigated, our current Chief Justice, then a junior justice in the Constitutional Court, could see nothing wrong with the change and joined the minority of justices who would have rejected the challenge. Former Deputy Chief Justice Moseneke and Justice Cameron led the slimmest of majorities (5 votes to 4) in rejecting the Hawks because they were, in their first incarnation, regarded as insufficiently independent to be an effective anti-corruption entity.
The remedial legislation ordered by the court led to a further impugning of its constitutionality for want of compliance with the criteria laid down in the majority judgment. The executive and legislature combined to do as little as possible to comply with the criteria for effective corruption busting that were identified by the court. These are, in short, specialisation, training, independence, resources that are adequate, and security of tenure of office. The Scorpions enjoyed all of these with the exception of the last criterion; they were mere creatures of statute and could be dissolved by the majority in Parliament. They were.
On the second occasion that the Constitutional Court was required to adjudicate the constitutionality of the Hawks enabling legislation, the Chief Justice changed his original stance and very properly led the charge by penning the main judgment of the court which starts with these memorable words:
“ All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.
 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. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act (SAPS Act), as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?
The answer which the Chief Justice and the other justices gave to the question so posed was a resounding “No”. They chose not to refer the matter back to Parliament; instead they effected some panel-beating of the legislation in order to make it comply better with the criteria which the court had laid down in the previous round of the litigation.
The question that ought to be raised now is whether or not the second version of the Hawks, as approved by the Constitutional Court, is:
- An agency dedicated to the containment of corruption;
- Adequately structurally and operationally independent;
- Effectively and efficiently discharging its core mandate?
The answer to all three parts of the question is an emphatic “No”.
By their very name “The Directorate of Priority Crime Investigation” the Hawks can been seen to be far from an entity dedicated to the struggle against corruption. They do all sorts of good work in all manner of criminal investigation that has nothing to do with corruption, and yet the court requires specialisation.
The independence to which the court refers is independence from executive interference and influence. As part of the police the Hawks are answerable to the Minister of Police and are managed by another political appointee, the National Commissioner of Police, their accounting officer. The track record of the Hawks in their second incarnation (as approved by the court) is not one of independent action and fearless impartiality. They have allowed themselves to become an instrument of the faction fighting within the ANC and have even stooped so low as to allowing the Ministers of Police and State Security to run a media briefing for them. This is a far cry from independence.
As for effectiveness and efficiency: too many criminals appear to enjoy “royal game” status with the Hawks and ever fewer arrests are taking place. The work rate of the Hawks is now around one third of what it was when they were first formed and it has never matched that of the Scorpions. Dysfunction, low morale, lack of resources, many vacancies and poor leadership haunt the Hawks.
A national anti-corruption strategy to be implemented next year will be informed by public comment on a discussion document expected to be released soon. Announcing this last week at an international anti-corruption day event in Johannesburg, Minister in the Presidency for Planning, Monitoring and Evaluation, Jeff Radebe, said that – in the absence of an “overarching” set of “shared commitments” – “collaboration” around existing public service, local government, provincial and departmental anti-corruption strategies and fraud prevention, plans will continue to be found wanting.
In the meantime, the Constitutional Review Committee of the National Assembly is mulling the notion of creating a new Chapter Nine Institution, the Integrity Commission, to supplement the work of the Public Protector and the Auditor-General.
The public comment on the new anti-corruption strategy ought to be informed by the criteria laid down by our highest court and by insisting upon strict compliance with the criteria for successful corruption busting that have been set by it. A single, dedicated and specialised unit that is properly trained, institutionally and operationally independent and fully resourced is needed. Its personnel must enjoy security of tenure of office.
The executive branch of government has lost its way in the fight against the corrupt among us. Its assembling of task teams and its tinkering at the criteria laid down by the court have not assisted the nation in dealing with the demons of corruption. The public feedback called for by those driving the national anti-corruption strategy ought to send a loud and clear message. It is time for the best practice solution to the challenges posed by corruption: an Integrity Commission is needed.
Perhaps by next year, the winners of the Daily Maverick Person of the Year will be those who act on properly implementing what the court has long required to properly equip the nation to prevent and combat corruption as a means of respecting and protecting human rights as well as of complying with the international obligations of the country. DM
Paul Hoffman SC is a director of Accountability Now and the author of the new book Confronting the Corrupt.
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