Ismail Lagardien, writing for Daily Maverick, raises some vital questions and interesting comparative law in his gloomy piece on an ethics inquiry.

In the SA context , it is important to distinguish between a commission of inquiry and a standing constitutional commission such as the SAHRC or IEC. It is for this reason that the latter gets the capital “C” and the former the small “c” in the headline to this comment. The standing commissions have powers given to them by law; they cannot simply be closed down or diverted from the mandates given them in the Constitution. They are answerable and account to Parliament and not the executive branch of government.

A commission of inquiry on the other hand is in essence an instrument of policy, called into existence by the executive, on terms determined by the executive and confined to the ever variable mandate given it by the executive branch of government. The findings of a commission of inquiry bind no one; they are essentially advice to the executive on complex or controversial issues, advice given on a “take it or leave it” basis.

The ethics commission referred to by Lagardien falls into the latter category, a body capable in the context of corruption to expose a great deal about which it would not have the power to do anything due to its essentially advisory nature.

The problem at the core of the cancer of corruption currently choking the prospects of peace, progress and prosperity in SA is that the incidence of the malady increases in direct proportion to the chances of not being caught. The culture of impunity abroad in the land fuels the increase in corruption, the diversion of professionals into questionable activity a la KPMG and the burgeoning quantum of the theft from the poor that is at the heart of much of the corruption in the public procurement system at present.

With the Hawks in such disarray that they are not even able to file their annual report to Parliament timeously, coupled with the general state of dysfunction in the criminal justice administration, it is small wonder that the ever greater numbers of those who have become corrupt have embarked on a multibillion-rand feeding frenzy. This proves that when the anti-corruption cat is away, the corrupt mice will not only play but also proliferate, with consequences that threaten the continuation of the constitutional project in SA.

As far as the substantive law against corruption in SA is concerned, two points need to be made. First, there is nothing wrong with the breadth and scope of PRECCA – the Prevention and Combating of Corrupt Activities Act, our premier law on the topic. Definitions are sufficiently broad to cut down wriggle room and prescribed punishments are a suitable deterrent. Second, while the Scorpions were allowed to function in an operationally and structurally independent space as a unit within the NPA, the efficiency of the anti-corruption machinery of state in SA was not questioned. Indeed, the devastatingly effective investigations of the TravelGate fraudsters and of private citizens Schabir Shaik and Jacob Zuma, among other politically well connected players in the corruption space, actually sealed the fate of the Scorpions. They were dissolved before they were able to go after those who think that “it’s our turn to eat” actually means “it is our turn to steal from the public purse”.

The weakness of the Scorpions that will have to be properly addressed, if the SA anti-corruption entity is to be a future success, was their vulnerability to being closed down by a simple majority in Parliament. As mere creatures of an ordinary statute, the Scorpions could be, and were, closed down by the ANC majority elected in 2009. Had the Scorpions been housed in a constitutional commission under Chapter Nine of the Constitution (like the Auditor General, the Public Protector and the SAHRC) it would have required a two-thirds majority to close them down as summarily as they were in fact dissolved.

In these circumstances it is appropriate to give consideration to the establishment of an Integrity Commission under Chapter Nine as a means of addressing the culture of impunity and of eradicating the unacceptable prevalence of corruption in SA.

The mandate of the Integrity Commission should cover all aspects of the challenge of corruption from prevention and combating to investigation and prosecution before the criminal courts. Public education, dedicated specialised investigators, properly trained prosecutors and forensic experts are needed, full-time, to cope with the crisis that the corrupt have created, a crisis which “threatens to fell at the knees virtually everything we hold dear”, as the Constitutional Court has warned.

This innovation requires a constitutional amendment by Parliament and appropriate enabling legislation. The National Assembly has a Constitutional Review Committee which is currently mulling the creation of an Integrity Commission. Accountability Now has made submissions to the committee and has published, inter alia on its website, the necessary amendment and draft legislation for consideration by the committee and all who are concerned that corruption is strangling constitutionalism in SA.

Lagardien does not touch on the difference between a commission and a Commission in general nor the contrast between an ethics commission of inquiry and an Integrity Commission under Chapter Nine. While there is no silver bullet solution to corruption, it is submitted that the proposed Integrity Commission is the best practice solution available for SA, given the current dispensation and the criteria laid down by the courts for effective and efficient ant-corruption machinery of state, criteria that bind the state but are currently honoured in the breach due to the character of the Zuma administration. DM