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Most fish rot from the head, but the NPA’s head is fresh – it’s the Zuma tail that is rotten

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Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.

South Africa has taken an enormous battering to save the skin of one man, Jacob Zuma. Its legitimacy as a modern constitutional democracy under the rule of law needs to be restored now.

A galaxy of stars contributed an Op-ed to Daily Maverick in June under the auspicious title “We must develop governance game-changers for a post-Covid-19, post-Zuma recovery” (Tania Ajam, Pascal Moloi, Pali Lehola and Ivor Chipkin, DM 24 June 2020).

The thoughts they express and the suggestions they make are profound and timely. Their respective pedigrees demand that their views be accorded serious consideration. It is their fourth “game-changer” that is the topic of this gloss on their essay. They submit that “a reconstituted NPA could reel in some high-profile corruption arrests that could contribute towards rebuilding the legitimacy lost during the Zuma era.”

On the assumption that the loss of legitimacy referred to is a reference to the failure of the state to uphold the rule of law and to implement the supremacy of the Constitution during the Jacob Zuma years, the reconstitution of the NPA is indeed critical to the future trajectory of the country. Loss of legitimacy impacts on business confidence; it scares off new investment while it encourages kleptocracy and a culture of corruption with impunity in the land. The impunity is still very much in place notwithstanding the arrest of a handful of VBS bankers, one of whom is repentant, the rest recalcitrant.

The need to reconstitute the NPA is based on a clear-eyed assessment of the degree to which the NPA was captured by the Zuptoids during the period between the dissolution of the Scorpions (an NPA anti-corruption unit) and the present day.

The new brooms at the NPA, Shamila Batohi and Hermione Cronjé, both complain about the hollowing out of the NPA during the Zuma era. Indeed, both of them fled good jobs in the NPA when the Zuma era started, Batohi to work in the Hague as a special advisor to the ICC prosecutors and Cronjé to life at the Bar.

Cronjé has let it be known publicly that there are what she calls “saboteurs” in the current NPA, planted by Zuma to look after his interests in the period after the end of his second term, a term which ended early on 14 February 2018. It is easy to sabotage criminal investigations from within the NPA. Excuses not to prosecute are many; impossible queries about the content of dockets presented bog down the system. Files disappear as do critical witnesses, some permanently.

The need to reconstitute the NPA has been recognised by President Cyril Ramaphosa. He is currently mulling the idea of establishing a new Chapter Nine Institution, an Integrity Commission, to investigate and prosecute the various forms of grand corruption which marked the Zuma era. The idea of a Ch9IC was put to the president during parliamentary question time in March last year by the doughty Chief Whip of the Inkatha Freedom Party. The president expressed sufficient interest to call the idea a “refreshing” one before he promised to mull it over.

The stopgap move the president has taken in respect of the NPA is not one that can last. He proclaimed the establishment of the Investigative Directorate of the NPA to handle State Capture prosecutions and investigations. While the intent may be commendable, the legality is questionable. Parliament, in closing down the Scorpions, made laws that reserved all investigative work in relation to “priority crimes” (which include corruption) to the Hawks or “Directorate of Priority Crime Investigation” a police unit with a reporting line to the Commissioner of Police and the Minister of Police.

It is now common cause that the Hawks have not been a success in the corruption aspects of their mandate. No “big fish” have been reeled in on their watch which has already been more than a decade long.

Courts defer to other branches of government when it comes to decision-making on how to run the country. In the Glenister cases, the decisions made were not prescriptive in their detail, but they did clearly set out the criteria by which the anti-corruption entity was to be measured.

It was apparently for the purpose of working around the lack of capacity, efficiency and effectiveness in the Hawks that the president proclaimed the ID and appointed Cronjé to head it. This move is unlikely to withstand a challenge that impugns its constitutionality. It is deeply inappropriate that the premier corruption busting entity in the country, the ID, should exist at the pleasure of the president and be required to do work legally reserved to the Hawks by an Act of Parliament.

Be that as it may, the notion of reconstituting the NPA legitimately is a sound one that should indeed be explored in the interests of restoring legitimacy, business confidence and new investment that create much-needed jobs. The art of paying lip service to the rule of law is highly developed in the corridors of power in SA. A more genuine commitment is needed, especially as government is bound by the court findings in the Glenister cases.

How then to go about reconstituting the NPA? Fortunately the parameters of the problems this ticklish task present have already been explored by the Constitutional Court in the Glenister cases it heard after the Scorpions were dismantled by a Parliament in the thrall of the “Zuma tsunami” (as an enchanted Zwelinzima Vavi put it). Vavi has since come to his senses and calls the ascent of Zuma to power the “greatest disaster” in the history of SA. He may be right, but the damage is not irreparable if SA now “boxes smart”.

Courts defer to other branches of government when it comes to decision-making on how to run the country. In the Glenister cases, the decisions made were not prescriptive in their detail, but they did clearly set out the criteria by which the anti-corruption entity was to be measured. The court required Parliament to make the reasonable decision of a reasonable decision-maker in the circumstances. What was needed then, as is still needed now, is an adequately independent body which is equipped to see off corruption effectively and efficiently.

These criteria ought to inform the reconstitution of the NPA required to enable the reeling in of the big fish:

First, a single specialised entity is required. The Scorpions and the ID both meet this criterion. The dedicated focus on grand corruption and nothing else (like the plethora of “priority crimes” on the Hawks’ plate) is what is envisaged.

Second, the personnel must be properly trained. The Hawks are derisively referred to as “stasie speurders” (station detectives) by the ex-Scorpions who received appropriate training from Scotland Yard and the FBI when they were established.

Thirdly, and critically, the unit needs to be independent. It must be able to act without fear, favour or prejudice. There must be a willingness to act without political influence or interference against all wrongdoers irrespective of their station in life and their connections. The unwillingness of the NPA to prosecute manifest criminality of Zuma in the Nkandla renovations debacle and in the removal of NDPP Mxolisi Nxasana from office illustrate the depth of the rot in the NPA. Charges laid in both matters languish in the bowels of the system.

The fourth requirement is that the corruption busters must be properly resourced in a guaranteed manner. This status is needed to prevent a situation in which the wherewithal to combat the corrupt is removed or insufficient.

The fifth, and the last, requirement laid down by the Constitutional Court in March 2011 is that the unit enjoy security of tenure of office. The Scorpions were a mere creature of statute. They were established and disestablished by a simple majority in Parliament. Had they been a Chapter Nine Institution they would have had the protection of a special majority which the Zuma administration did not command in Parliament at any stage. Had that been the case, the charges against Zuma would not have been dropped on the eve of his (first) election, the Scorpions would still be in place, Batohi and Cronjé (among others) would not have lost a decade or more of institutional experience, and the NPA would not currently be infested with the “saboteurs”, planted in its ranks by Zuma, of whom Cronjé complains.

While the courts were not prescriptive about the details of the reforms needed to create the constitutionally compliant unit that the judgments require, it is plain that the best practice response to the judgments is the establishment of the Ch9IC which has been proposed and promoted by Accountability Now since 2012, when a submission to the Parliamentary constitutional review committee was first made.

Policy-makers and Parliamentarians, civil society organisations, the faith-based and business sectors, academics; lawyers and journalists all have a role to play in sparking the will to reform in ways that efficiently enable the reeling in of the “big fish”.

The response of the Zuma administration was to do as little as possible to comply with the court’s criteria. That response led to the tweaking of the Hawks in minimalist fashion and to their failure to achieve even a tiny fraction of the successes of the Scorpions. Investigations by the Scorpions led to the charging of Zuma, Schabir Shaik, Jackie Selebi, Tony Yengeni and the Travelgate fraudsters.

It is small wonder that the ANC of that era had no appetite for proper anti-corruption machinery of state – it was used on its bad leaders to good effect and with increasing frequency. Of all those named, only Zuma still escapes conviction. The country has taken an enormous battering to save the skin of one man. Its legitimacy as a modern constitutional democracy under the rule of law needs to be restored now.

The suggested reconstitution of the NPA has to take into consideration the presence and immovability of the saboteurs in its ranks. The establishment of the Ch9IC is a reconstitution to consider. The new body can recruit in a way that instantly sheds the saboteurs; the NPA itself will take years to rid itself of them, years the country does not have available to it in the post-pandemic post-Zuma era. Problems of gender-based violence and femicide are enormous enough to occupy the full attention of the NPA. Shedding responsibility for countering grand corruption should come as a relief to those who remain to rebuild the NPA into the formidable entity it was before the Zuma era hollowed it out so thoroughly that it will take years to rebuild from within. The recruitment of personnel, carefully vetted, for the Ch9IC will include NPA staffers, good Hawks, SIU personnel and many in the private sector who derived great job satisfaction from their roles in the Scorpions.

The political will to reconstitute the NPA along the lines suggested above is the missing ingredient at this stage. The building of the necessary will is enabled and encouraged by the type of thoughtful contribution the galaxy of stars have made in the columns of DM. The words of the court, per Moseneke DCJ and Cameron J, on 17 March 2011 should serve to inspire the changes needed now:

“…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.”

Policy-makers and Parliamentarians, civil society organisations, the faith-based and business sectors, academics; lawyers and journalists all have a role to play in sparking the will to reform in ways that efficiently enable the reeling in of the “big fish”.

May the president mull well and do his duty diligently and without delay. DM

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