The civil society organisations that have written an open letter to President Cyril Ramaphosa deserve thanks and congratulations for articulating their well-founded concerns about the “vultures” that are circling as both government and civil society scramble to ameliorate the ill-effects of the Covid-19 pandemic in SA. The “vultures’” temptation to loot, their tendency to be kleptocratic and the hard evidence of attempted State Capture in South Africa are reasons enough to be sufficiently concerned to pen an open letter to the president.

It is also commendable to express the concern that “if we fail in our duties to protect the public from these corrupt vultures during this time, we lose the last fragment of hope that we can offer to people”. Better still is the express commitment to the Constitution which, to again quote from the open letter, “should empower us to ensure the measures taken and the allocation of resources are, in fact, for the benefit of the people”.

The Constitution has no express reference to corruption. The Constitutional Court has, however, interpreted the duty of the state to “respect, protect, promote and fulfil” the rights in the Bill of Rights to mean that there is a constitutional obligation to regard countering the corrupt as a duty of the state. There are also various international treaty obligations in place which require the state to maintain adequately independent anti-corruption machinery to effectively and efficiently deal with corruption.

The combination of constitutional duties (as articulated by the courts) and SA’s treaty obligations require the state to put in place an entity which is enabled and empowered to prevent, combat, investigate and prosecute corruption in all its manifestations.

The apex court has considered these issues in its judgments in the Glenister litigation over the replacement of the Scorpions (an NPA unit) with the Hawks (a police unit). In its majority judgment of 17 March 2011, the court identified five binding characteristics or criteria for best practice for a state entity maintained for the purpose of combating corruption, a nasty, corrosive force in any society, but particularly in a society in transition to a democratic, open, accountable and responsive future of the kind envisaged by the founders of the new South Africa. The criteria are: Specialisation, Training, Independence, Resources and Security of tenure of staff (STIRS). A unit that can be said to have all of these characteristics in abundance is well equipped to counter corruption; but if it lacks any of these, it will struggle to perform effectively. A useful acronym, STIRS, sums up these criteria in an apposite and easily remembered word.

The Scorpions came close to satisfying the five criteria; but their weakest link was security of tenure of office. A mere creature of statute, the Scorpions were validly, if somewhat illogically, dissolved by the Zuma-led majority in Parliament. In their place came the Hawks. No one even suggests that the Hawks are up to the tasks at hand in 2020 in relation to combating grand corruption in SA. The president himself has so little confidence in the Hawks that he has proclaimed an Investigative Directorate in the NPA to deal with State Capture.

The civil society organisations that have bravely written to the president do not even give the Hawks a passing mention. Rightly so. The Hawks are not specialised – they are mandated to deal with all manner of “priority crimes”. They have very little appropriate training – most of their members are what are called “stasie-speurders” (station detectives) in the police. Their independence is so lacking that in over a decade they have not succeeded in investigating a single “vulture” implicated in grand corruption who is well-placed in government circles. The Hawks are under-resourced and would regard investigating Bheki Cele for his corrupt activities while commissioner of police as a distinctly career-limiting move. They have sat on the SIU report in relation to the corruption of Bosasa since 2009.

The NPA is also not STIRS compliant. It was, at least partially, captured during the Zuma presidency. Its leaders speak of the hollowing out of the institution and complain of saboteurs in the ranks of prosecutors. It is easy to “disappear” a criminal docket. A district prosecutor will do so for as little as a few thousand rand, while, at the other end of the scale, advocate Seth Nthai SC, a former member of the Judicial Service Commission, was prepared to make an arbitration “go away” for a bribe of R5-million.

Anything less than a new Chapter Nine institution to deal with corruption with impunity will stand less chance of ending the impunity of the kleptocrats. While the impunity continues, as it has since before the Zuma presidency, the constitutional project in SA is in jeopardy.

The nettle that both the civil society organisations and the president have not quite seized is that there is a culture of corruption with impunity abroad in SA. The various “workaround” solutions suggested in the open letter have value, but unless and until the impunity is addressed the vultures will continue to circle the public purse, the special loans and grants for pandemic relief and indeed anything that they can sink their foul talons into for their greed to be satisfied. To deter impunity, a strong institution is needed; the corrupt must fear detection, investigation, conviction, forfeiture of the loot and incarceration. Anything less tends to encourage rather than deter.

The way in which to counter impunity is plain. The creation of an institution that is constitutionally compliant and satisfies all of the STIRS criteria in every way is what is required. It was gratifying to hear Karam Singh, head of legal and investigations at Corruption Watch, explaining on television on 24 May that an institution rooted in the Constitution is what is required. The reason for his taking this legally sound position is that security of tenure (the final S in STIRS) is not possible if the entity seized with ending impunity for corruption is not located under the protective umbrella of the Constitution. It will be at risk of having the same fate as the Scorpions if it is not positioned as a new Chapter Nine institution. It is legally impossible to close down any of these institutions without a special majority in Parliament. Had the Scorpions been a Chapter Nine institution they would still be in existence (and doing good work) because the ANC has not had a two-thirds majority in Parliament at any time since Jacob Zuma has led it.

Some may argue that the new Investigative Directorate in the NPA, headed by Hermione Cronje, is the answer to the impunity for corruption issue. Not so; as Singh correctly observed, a proclamation by a president is capable of being changed either by the president who issued it or any of his successors. In other words, Cronje’s unit works at the pleasure of the head of the executive branch of government. That is exactly what the Constitutional Court has laid down should not be allowed to happen. The anti-corruption entity needs to be free of executive influence and interference. That is impossible if it exists at the whim of the president.

During the fourth, fifth and sixth parliaments, Accountability Now has been advocating the creation of a new anti-corruption body under Chapter Nine of the Constitution. At first it was given the name “Anti-Corruption Commission” but, due to the negative overtones of that name, this has been replaced by the name “Integrity Commission”. Quite coincidentally, the nickname given to this desired new body is “The Eagles” because eagles fly higher, see further and go after bigger prey than hawks. Needless to say, vultures fear eagles but not hawks.

On the Integrity Commission page of the website of Accountability Now, the necessary constitutional amendment and draft legislation can be found. It has been given to the Constitutional Review Committee in the National Assembly and is under consideration by it as well as by those who are responsible for formulating the National Anti-Corruption Strategy. Corruption Watch and PARI both play a leading role in this important work and are signatories to the open letter to the president.

Anything less than a new Chapter Nine institution to deal with corruption with impunity will stand less chance of ending the impunity of the kleptocrats. While the impunity continues, as it has since before the Zuma presidency, the constitutional project in SA is in jeopardy.

President Cyril Ramaphosa has expressed interest in the formation of an Integrity Commission, having referred to it in Parliament last year as a “refreshing idea”.

This expressed willingness of Ramaphosa to consider the establishment of a new Chapter Nine Integrity Commission has been supplemented by his Minister of Justice, Ronald Lamola, who has observed that professionals – business and political operators – are responsible for State Capture. He went on to remark:

“Based on evidence before the Commission of Inquiry into State Capture, it is clear that politicians could not have done it on their own. All South Africans have a role to play in ensuring that it never happens again because, if it did, it would not only be the government or state-owned enterprises such as SAA which would collapse, but all of us are going to collapse.”

The minister’s words echo the oft-quoted finding of the Constitutional Court in the seminal “Glenister II” case:

“…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.”

On the legislature’s side, it is reported that Dikeledi Mahlangu, a member of the National Council of Provinces, was heard to point out during a debate on appropriations that:

“It is frustrating when a municipality is taking the municipal infrastructure grant to pay salaries. You were given resources to spend on the departments and those commitments were made to the public. The only thing we are lacking is consequence management.”

Indeed. The problem that built up during “the wasted Zuma years” is that the corruption-busting capacity of the state has been fragmented and clogged with personnel in the Hawks (investigations) and the National Prosecution Authority (NPA) who are either unable or unwilling to do the heavy lifting required to prevent, combat, investigate and prosecute serious forms of corruption.

Perhaps the civil society organisations should consider a supplementary letter to the president to remind him of his interest in establishing an Integrity Commission to end the culture of corruption with impunity in SA? Anything less won’t do. DM