Opinionista Paul Hoffman 8 March 2019

The constitutional need for independent anti-corruption machinery of state

Lawyers and politicians have a penchant for making simple things complicated. It suits them to do so. In the case of lawyers, complex matters attract higher fees, or more kudos for intricate judgments for those lawyers who grace the Bench. In the case of politicians, it assists in bamboozling the long-suffering electorate to wrap questionable decision-making in a great deal of circumlocution and piles of the type of manure that fertilises politics.

And so it is, in the case of the recently fired executive director of our Independent Police Investigative Directorate, Robert McBride, that more heat than light has been generated around the contested renewal of his term of office for a further five years.

Although some academic writing on the topic seems to suggest that the IPID legislation is the source of the independence of the executive director, actually our highest law, the Constitution, as interpreted by our highest Court, the Constitutional Court, is the source of the independence of IPID and its executive director. The legislation has to be consistent with the Constitution to survive scrutiny in the upcoming litigation concerning the abrupt and unpopular ending of the contract of the former ED.

The Constitution, in section 206(6), requires the establishment of “an independent police complaints body” which “must investigate any alleged misconduct of, or offence committed by, a member of the police service …”

When the politicians decided to replace the Independent Complaints Directorate with IPID there was some debate about the scope and extent of the “independence” contemplated in the section quoted from above. Due to its striving for hegemony (the core ideal of the National Democratic Revolution which informs its thinking) the Tripartite Alliance in the majority in Parliament took up the attitude that the words quoted above denote “independence from the police”, not independence from the executive branch of government.

The law found its way onto the statute book in accordance with this interpretation of the word “independence”.

Pretty soon the Minister of Police, then Nathi Nhleko, sought to suspend the executive director of IPID. Litigation ensued, the interpretation “independent of the police” was rejected in favour of a wider meaning for the word that would give greater effectiveness and efficacy to the workings of IPID.

In 2016, the Constitutional Court reminded the other branches of government of the principles applicable and ordered them to amend the legislation so as to bring it into line with the extended constitutionally compliant meaning of “independent”.

It is disgraceful that this has not yet been done by a Parliament which is obliged to uphold the rule of law (as expressed in the relevant judgment) and to ensure a system of governance that is accountable and responsive. This is clearly set out in Section 1 of the Constitution and is routinely ignored by those with their eyes on the goals of the NDR.

While the Constitution itself is somewhat light on the need for anti-corruption machinery of state, it does say that the police must prevent and combat crime (and corruption, lest we forget, is a crime). It also provides that the National Prosecuting Authority must exercise its functions without fear, favour or prejudice: in a word, “independently”.

In Section 179(2) the NPA is required to “carry out any necessary functions incidental to instituting criminal proceedings”. This does not, generally speaking, include investigation of crime, a function reserved for the police whose objectives are “to prevent, combat and investigate crime” among the other good things mentioned in Section 205(3) of the Constitution.

The closure of the Scorpions, an NPA unit, which had an investigative capacity and was dedicated to fighting corruption, was the occasion for much litigation which threw further light on the issue of corruption and the constitutionally compliant way of dealing with the corrupt, whether within the ranks of the police or otherwise.

With the benefit of hindsight, it is easy to see that the dissolution of the Scorpions was designed to facilitate the State Capture project that enjoyed currency during the wasted Zuma years; a project which may not yet be complete.

Back in December 2007, when the ANC resolved to disband the Scorpions urgently, Gwede Mantashe justified the decision in a meeting with Helen Zille, then leader of the opposition, at Luthuli House. He was then Secretary-General of the ANC and he is now its Chairman and a member of the first Ramaphosa Cabinet. His explanations are summarised accurately in “Confronting the Corrupt” as follows:

The ANC wanted the Scorpions disbanded because they were ‘a political unit made up of apartheid security branch members who treated the ANC as the enemy’… the investigation of Jacob Zuma was an ‘abuse of power’ … lastly, the ANC wanted the Scorpions disbanded because they were ‘prosecuting ANC leaders’.”

The court dealt with the matter of the closure of the Scorpions in a way that led to the characterisation of corruption as a human rights issue. The state cannot discharge its obligations to respect and protect human rights in a situation in which the public purse is being looted in a manner that amounts to theft from the poor and needy. As Navi Pillay has observed: “Corruption is a killer.”

Of importance, in the context of the current brouhaha concerning the former executive director of IPID, is the court’s criterion for defining the independence of the leadership of an anti-corruption entity (that IPID is such an entity is beyond doubt). Security of tenure of office is one of the five main criteria insisted upon by the Constitutional Court in its seminal decision of March 2011 in the second Glenister case it heard.

An executive director of IPID who is secure in his tenure of office is one who is better able to act independently in performing and leading the work of IPID without constantly looking over his shoulder to see whether or not he is pleasing the Minister of Police, the Cabinet or indeed any politician. This characteristic is particularly important in times of State Capture, rampant grand corruption and kleptocracy.

One of the best ways of ensuring that the executive director is secure in his tenure of office is to make his term a single non-renewable term of office. In this way, the temptation to “be nice” to the appointing authorities in order to get an extended appointment is removed. The executive director is in office once, only once and for a fixed term.

There can be no doubting that the willingness of IPID to investigate the acquisition of a “grabber”, using the crime intelligence budget of the police, at an inflated price, allegedly to facilitate the payment of bribes to delegates at the Nasrec conference of the ANC in December 2017, is a matter that the Cabinet, the ANC and many other crooked people would prefer to be left in abeyance, either permanently or at least until after the general elections on 8 May 2019.

As no legitimate purpose of government is served by not proceeding with the investigation IPID has in hand, the grabber fiasco is not given any prominence in the reasoning behind the decision not to renew the term of office of the former executive director. It remains to be seen whether we hear of it again from officialdom, whether before the upcoming elections or later.

The issues are simple: Was the grabber acquired at an inflated price? Was crime intelligence funding used? What was the purpose of the inflation of price and how was the excess, R45-million less R8-million, to be used?

Whether it is up to Parliament (or indeed the executive) to renew the term of office of the executive director of IPID is a question that the Constitutional Court will have to consider now that the former executive director is litigating the fairness and rationality of the termination of his services as an executive director.

It is arguable, given the requirement that the executive director’s tenure of office should be secure, that the renewal of his term of office for the second five years is solely at his option while he is in good standing. As has been pointed out elsewhere, the wording of the IPID Act is vague and ambiguous. If the ambiguity is around who has the right to renew, then it should be resolved in a manner that accords with the Constitutional Court’s findings on the criteria applicable to the leadership of anti-corruption entities in a society which aims at the realisation and enjoyment of a host of expensive human rights by all.

It is true that the ANC-led alliance is congenitally incapable of surrendering its control of the levers of power in society as this runs counter to a basic aim of its revolutionary agenda.

It is for this reason that the Minister of Police (who should be under criminal investigation for his role in negotiating leases at excessive rates for police headquarters) was so bold as to give notice to the former executive director.

In his world view, he has control over IPID which is only independent of SAPS, not of him. In the SA jurisprudence around the independence of anti-corruption units, his attitude and actions are anathemas.

The former executive director is indeed entitled to rational decision-making concerning his tenure of office and he is entitled to fairness in that decision-making.

If the decision to end his term at the end of February is only his to make, or if no legitimate purpose of government is served by ending his term prematurely when he is still willing, able and competent to continue, and/or if it is an unfair decision – not the decision of a reasonable decision-maker in the circumstances to end his time as executive director half-way through his intended term of office – then the litigation now pending will end in yet another defeat for the denizens of the NDR and a victory for good, accountable and properly responsive governance. DM

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