In these times of fiscal belt-tightening and with the threat of a sovereign debt crisis, it is important to remember that raking back the loot of State Capture is a sensible response to the financial pickle in which the country finds itself. Without recouping the proceeds of State Capture from the looters, we are in a situation in which 21 cents of the public rand goes to servicing debt and 62 cents to the public service wage bill. That leaves very little for the rest of us.

It is encouraging to see that the party created by the “accidental” former Johannesburg Mayor, Herman Mashaba, The People’s Dialogue, is seeking to develop a policy that is capable of successfully addressing corruption. The grand corruption with impunity, which has hollowed out the criminal justice administration in the course of the Jacob Zuma-era State Capture project has blighted progress toward the realisation of the goals of the Constitution and has left the country in dire financial straits, and quite incapable of meeting the expensive UN Sustainable Development Goals by 2030 or ever.

In any policy formulation process, it is appropriate and indeed necessary to take cognisance of what the Constitution allows. Any policy, which amounts to conduct that is inconsistent with the Constitution, would be invalid and vulnerable to being successfully impugned in court. While there is no reference to corruption in the Constitution, the Constitutional Court has found that the international obligations of the state, coupled with its duty to respect and protect human rights, mean that countering the corrupt is a matter regulated by the Constitution. The finding came in the second Hugh Glenister case in a judgment handed down in 2011. It was followed in 2014, in further litigation aimed at preserving the capacity of the state to counter corruption. On both occasions, the constitutionality of the Zuma administration’s devastation of the anti-corruption machinery of state was under consideration.

The binding criteria by which to measure the constitutionality of the laws governing the anti-corruption activities of the state can be summarised in a single five-letter acronym as the “STIRS” criteria.

In 2011, it was found that it was in order to disband the Scorpions, provided that the substitute organisation (the Hawks) met the criteria of the Constitution for an effective and efficient entity to counter the corrupt. The initial incarnation of the Hawks did not pass muster. The court sent Parliament back to the drawing board.

Everyone now knows that closing down the Scorpions and replacing them with a less than suitable police unit, the Hawks, has not been a success and that reform is needed. Indeed, the Hawks were arguably designed to facilitate or enable State Capture. Dissolving the Scorpions certainly made life easier for the kleptocrats.

While the court was not prescriptive about the details, it did require Parliament to make the decision of a reasonable decision-maker in the circumstances when considering and passing legislation that complies with the criteria for an anti-corruption entity. These attributes the court laid down in a manner which binds the state, including our independent National Prosecuting Authority, which was a party in the case.

The binding criteria by which to measure the constitutionality of the laws governing the anti-corruption activities of the state can be summarised in a single five-letter acronym as the “STIRS” criteria.

The Zuma administration approached the task of passing the remedial legislation required of it by the court with the appetite of a vegetarian presented with a kilogram of rare steak for dinner. As a result of the lack of enthusiasm for properly implementing the decision of the court, SA has limped along with feeble Hawks and an NPA lacking in the expertise and capacity to counter corruption. The People’s Dialogue seeks, correctly so, to address this problem.

The first STIRS criterion is “S” for specialisation. The court envisages an entity which deals with corruption and nothing else. Civil society group, Casac, is fond of calling this the “dedicated unit” requirement. The Hawks are required by law to investigate what are called “priority crimes”. They are not specialists.

Second, “T” for training of staff is identified as a requirement. When the Scorpions were established, the new recruits were sent to the FBI and Scotland Yard for the type of training that enabled them to acquit themselves well in the confrontation of the corrupt in high places. This task they carried out so well that the Zuma administration simply could not allow them to continue to pursue crooked cadres and their friends in business.

So dire is the current situation that the Steinhoff fraud investigation is being assisted by accountants appointed and paid for by Steinhoff, the potential conflict of interests notwithstanding. Asking the Zuma administration to vote resources to anti-corruption work was like asking turkeys to vote for Christmas.

The third criterion is “I” for independence in both structure and operations. This entails an ability to act without fear, favour or prejudice in the pursuit of the corrupt. Freedom from political influence and interference is at the heart of the notion of independence. Executive control (as occurs in the police) is not allowed. Appointment procedures must ensure that the right people in terms of both qualifications and mindset are appointed. The unit should report to our multi-party Parliament and not to a member of the executive. 

The Hawks are a police unit, their accounting officer is the National Commissioner of Police and he reports to the minister of police. They have not, do not and cannot act independently due to the constraints of this reporting line as well as to their structural and operations limitations. Bheki Cele may have many attributes, but a champion of constitutionalism he is not.

The fourth criterion (“R” for resources), is that the unit be properly resourced in guaranteed fashion. Sufficient expertise is useless if the necessary resources are not available to put feet on the ground, forensic experts into harness and artificial intelligence at work in the fight against corruption. The Hawks have none of these. 

So dire is the current situation that the Steinhoff fraud investigation is being assisted by accountants appointed and paid for by Steinhoff, the potential conflict of interests notwithstanding. Asking the Zuma administration to vote resources to anti-corruption work was like asking turkeys to vote for Christmas.

The last criterion, (“S” for security), and this is the criterion the Scorpions lacked, is that the unit should enjoy security of tenure of office. As a mere creature of statute, the Scorpions could be dissolved by a simple majority in Parliament. The necessary majority, notwithstanding the best efforts of the opposition and civil society, voted the Scorpions out of existence in 2009. 

It ought to be difficult to close down an adequately independent body and to dismiss the functionaries that work in it. This applies to the judiciary where a two-thirds majority is required to remove an errant judge from office. It also applies to Chapter Nine Institutions (hence the difficulties with the Public Protector), that special majorities are required to remove their leaders from office or disband them.

As I have said before, the best-practice way of ensuring the anti-corruption machinery does enjoy secure tenure and the other STIRS criteria would be to house it in Chapter Nine of the Constitution.

Since March 2019, President Cyril Ramaphosa has been mulling the idea of establishing an Integrity Commission as a permanent Chapter Nine institution with a constitutional mandate to prevent, combat, investigate and prosecute corruption. Quite understandably, he has been distracted by the pandemic. The drivers of the National Anti-Corruption Strategy, so long in the making, are also considering proposed legislation of the same kind and they should report soon regarding the establishment of an Integrity Commission with the necessary “teeth” to see off the corrupt.

The business-like approach of the People’s Dialogue will surely see it championing the establishment of a new Chapter Nine Integrity Commission to investigate and prosecute the corrupt.

The leader of the opposition still hankers after the Scorpions without adding the important rider that the new unit should enjoy the type of security of tenure of office that the Chapter Nine Institutions have from their constitutional protection.

It is clear that the president has no confidence in the Hawks when it comes to the investigation of the grand corruption and kleptocracy involved in State Capture. They have more than enough other work to do on the various priority crimes covered by their mandate.

The stopgap move made by Ramaphosa in relation to the investigation of State Capture has been the proclamation of the Investigative Directorate (ID) of the NPA headed by Advocate Hermione Cronjé. As the ID serves and exists at the pleasure of the president, it does not possess the “I” for independence criterion laid down in the Glenister decisions of the Constitutional Court. The ID is unlikely to pass constitutional muster if its formation is ever challenged.

Shamila Batohi wisely regards the ID as a stop-gap unit. Parliament took away the investigative capacity of the NPA as regards corrupt activities; it is not open to the president to try to “work around” the will of Parliament by proclaiming the establishment of the ID to investigate the monstrously grand corruption strangling the life out of the country.

The effects of State Capture on the workings of both the police and the NPA are such that there is a need for a recruitment drive and a healing process. Training the new recruits and healing the wounds will take years. These are years that are not available to SA if the loot of State Capture is to be recovered and the perpetrators issued with orange overalls any time soon. The “saboteurs” (Cronje’s word for the Zuma old guard), in the NPA are in position still to thwart the work of the ID; the leadership of the police is rotten with crooked cadres and the Hawks lack the capacity to deal with grand corruption.

The business-like approach of the People’s Dialogue will surely see it championing the establishment of a new Chapter Nine Integrity Commission to investigate and prosecute the corrupt.

This move will have the felicitous side effect of enabling the NPA to realise its goals of being independent, professional, accountable and credible far sooner than if it remains encumbered with the thorny issues relating to the prosecution of grand corruption in all its forms. DM