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Mr President, your new anti-corruption Hub won’t work

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

The President’s new crime-busting Hub set up to target Covid-19 corruption and abuse of funds will work no better than the Zuma-era Anti-Corruption Task Team. Instead, an Integrity Commission should be set up under Chapter Nine of the Constitution, implementing the criteria for anti-corruption mechanisms already set out in 2011 by the Constitutional Court.

On Thursday 23 July 2020 President Cyril Ramaphosa, in a televised address to the nation, announced his establishment of a nine-agency anti-covid-corruption “Hub” as his administration’s answer to the looting and abuse of the vast funding made available to counter the pandemic sweeping the country and the world. 

He looked and sounded tired and dispirited, as indeed he might. Part of the reason for his defeated demeanour is his knowledge and private lawyerly insight that the Hub will not work any better than its predecessor, the “Anti-Corruption Task Team” of the Zuma era. Here’s why.

There has long been a debate in anti-corruption circles around the world about whether a multi-agency or a single-entity response to corruption with impunity is appropriate. There are good arguments on both sides of the debate that it is unnecessary to embark upon. The reason is that the issue has already been settled by the Constitutional Court. It has, in terms that bind the state, elected the single-entity approach as the appropriate one for SA in the majority judgment handed down in November 2014 in the last of the trilogy of Glenister cases that it heard in the wake of Jacob Zuma’s rise to power. 

The Hub is the embodiment of the multi-agency approach taken to extremes. No fewer than nine agencies participate in the Hub, probably a world record. They will do so illegally and in flagrant disregard of what the court has laid down in litigation dealing with the best-practice response to corruption-with-impunity, or what former President Kgalema Motlanthe delicately calls “consequence management”.

Here is how Chief Justice Mogoeng Mogoeng put it in 2014:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The “we” to whom the learned Chief Justice refers in the second paragraph quoted above is the majority of the Justices of the highest court in the land. What they lay down as the law is binding on those who litigate in our courts. This finding has clearly been overlooked by our exhausted president and his hard-pressed advisers.

The architecture of the Constitution of SA lends itself to the single-agency approach. The Scorpions, located as they were within the National Prosecuting Authority, are a good precedent for this approach. They were created to deal with the rise in corruption in SA around the turn of the century and did their job so well that they had to be closed down by the victorious ANC factions who met to elect Jacob Zuma at Polokwane in December 2007. Their vote was good for Zuma but not for SA.

The delegates also voted to disband the Scorpions urgently and to transfer the investigative personnel to SAPS. At the time, then ANC Secretary-General Gwede Mantashe acknowledged openly that the motivation for the ANC’s resolution was that the Scorpions were investigating top ANC members who needed to be protected against this intrusion. The net result was the untrammelled State Capture project of the “wasted” Zuma years. 

The new Hawks unit within SAPS has never been equal to the task of investigating corruption in high places (arguably this worthy objective was not intended by the politicians who supported Zuma) and has not landed a single “big fish” swimming in the dark pools of corrupt activities in SA since its establishment: so much for consequence management on Zuma’s watch.

The president seems to be alive to the limitations of the Hawks. Shortly after his ascent to office, he proclaimed the establishment of an Investigative Directorate with the NPA. It is headed by a former Scorpion, Hermione Cronje. The president appears to have overlooked the fact that the legislation passed by Parliament to form the Hawks reserves the investigation of corruption (and other priority crimes) to the Hawks, not the NPA. Indeed, the creation of the Hawks was designed to strip the NPA of its investigative capacity insofar as corrupt activities are concerned. Cronje’s new unit was hailed as “the new Scorpions” but it has failed to launch a single prosecution of any kind. 

Cronje explains that in the Zuma years the NPA has been “hollowed out” and that it is infested with pro-Zuma saboteurs who owe their positions to Zuma and place their fealty in his camp rather than to the rule of law. The “saboteurs” are well placed to trip up, delay, deflect and derail any prosecutions not desired by the factions in the ANC which still place their loyalty in the Zuma camp. This group makes up nearly half of the ANC on a good day for Ramaphosa, and more than half on a bad day, largely depending on where the DD Mabuza “unity” faction decides to place its support.

The problem for the Hub is that there is only one agency, and indeed constitutionally speaking there can only be one agency, which has the prosecutorial work involved in countering the corrupt in its mandate. The agency concerned is the NPA, which is enjoined by the Constitution to act “without fear, favour or prejudice” or, in a word, “independently” in the discharge of its mandate to prosecute.

As Cronje has pointed out, her “saboteurs” lurk in the dark corners to ensure that no harm comes to those who have the protection of the Zuma-aligned forces. It follows that, practically speaking, the Hub is doomed before it takes its first plunge at securing the conviction of the corrupt “covidpreneurs” as those feeding at the newly opened health-related tender trough have been dubbed.

In fairness to Cronje, it needs to be recorded that she is one of the many Scorpions who resigned rather than work under mendacious Menzi Simelane who was made National Director of Public Prosecutions by Zuma to put in place “the ANC’s vision for the NPA”. Simelane did not last, his appointment was found to be invalid and irrational by the Constitutional Court. Despite the mendacity that disqualified him, he still holds a position in Lindiwe Sisulu’s ministry.

The “failure to launch” syndrome of the Investigative Directorate will not be cured by the creation of the Hub. The president explained his decision making in the following terms:

[W]e have established a collaborative and co-ordinating centre to strengthen the collective efforts among law enforcement agencies so as to prevent, detect, investigate and prosecute Covid-related corruption.

“This centre brings together nine state institutions.

“These are the Financial Intelligence Centre (FIC), the Independent Police Investigative Directorate, the National Prosecuting Authority, the Hawks, Crime Intelligence and the SAPS Detective Service, the South African Revenue Service, the Special Investigating Unit and the State Security Agency.

“With an operational hub at the FIC, this centre is investigating allegations of corruption in areas such as the distribution of food parcels, social relief grants, the procurement of personal protective equipment and other medical supplies, and UIF special Covid-19 scheme.

“At least 36 cases are currently at various stages of investigation and prosecution.”

There is no mention of the failure of the Investigative Directorate and the NPA to obtain any traction in their anti-corruption work during the Ramaphosa presidency. The current National Director of Public Prosecutions, Shamila Batohi, is at pains to explain the sorry state of affairs in her domain. IFP MP Narend Singh has summed up her situation neatly in the following words:

“Unfortunately, the NPA is currently punching below its weight.

On 30 June 2020, at a meeting of the Portfolio Committee on Justice and Correctional Services, the NDPP reportedly shared her views as to why South Africa is losing the battle against corruption. The sheer volume of work, coupled with serious capacity constraints within the NPA, continue to present major obstacles in the fight for justice.

This view instils very little confidence in our law enforcement agencies. Undeniably, it also widens the scope for corruption – something that South Africa, on the brink of economic collapse, can ill-afford…

“The NPA’s latest Annual Report (2018/19) emphasised that the Specialised Commercial Crimes Unit, mandated to deal with serious, complex and organised commercial crimes, had a vacancy rate of 20.92% and operated “with the lowest number of prosecutors since 2010.”

The Hub does not and cannot address these shortcomings.

Nor is the Hub in any way compliant with the binding criteria laid down in the earlier Glenister case, decided in March 2011, in which the Hawks’ initial legislative mandate was successfully impugned because they lacked independence. In that case, the majority judgment was delivered jointly by two justices who have since retired: then Deputy Chief Justice Dikgang Moseneke and Edwin Cameron. They wrote:

“There can be no gainsaying that 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.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

In that case, the famous “STIRS” criteria for anti-corruption machinery of state in SA were set out by the Court for the guidance of future administrations. No one in the Hub fits all of the criteria, yet all of the criteria are required. Not a single agency in the Hub, apart from the unconstitutional Investigative Directorate, specialises in anti-corruption work. They all have their day jobs, and, given the complexity of the work of the Hub, it is a racing certainty that the day jobs will take precedence over the work needed to counter corruption. Even the Hawks have other priority crimes to investigate. 

There is simply no attempt at compliance with the specialisation criterion.

The second criterion is training in the complexities of countering corruption. No mention of training is made in the presidential announcement.

The all-important independence criterion is omitted by the president. Even the Investigative Directorate is his personal creation and serves at his pleasure. No leader of the Hub has been identified. The Hub is supposed to function in a space in which freedom from political influence and interference is guaranteed as per the 2011 Concourt decision. A leaderless Hub, both structurally and operationally, will be as dysfunctional as a headless chicken. The Hub is being set up to fail by reason of its lack of independent leadership.

The lack of proper resourcing is already lamented both by Singh and by NDPP Batohi.

Security of tenure of office, the last of the five criteria laid down in the March 2011 judgment, is the one feature the Scorpions lacked. The Hub is at the mercy of the executive branch of government. Its police components answer to Bheki Cele, the “dishonest and incompetent” commissioner who rose, politically, to become minister after being dismissed because of the findings of the Moloi Board of Inquiry.

He should be under investigation for corruption, but, sadly no progress reports emerge from the Investigative Directorate, armed as it is with Moloi’s report and those of then Public Protector Thuli Madonsela. There is simply no political will to go after the corrupt in high places, and the setting up of the Hub will not change that in any way, shape or form.

The president should be looking to establish a new STIRS-compliant Integrity Commission under Chapter Nine of the Constitution to prevent, combat, investigate and prosecute grand corruption in all forms whether pandemic-related or not. That is the effective and efficient solution the Chief Justice prescribed in 2014. Understandably, given the propensities of the then president, there was no appetite to comply with the law as laid down by the Constitutional Court when Zuma was president. 

The real question is not whether the Hub will succeed. It won’t. It is whether the Ramaphosa administration has the moral fortitude and fealty to the rule of law to comply properly with the decisions of the highest court in the land. If not, further public interest litigation is needed, but it would be so much better if those in power simply recognise that SA is doomed to fail in the manner foretold by the court in 2011 if the levels of corruption of which the Chief Justice complained in 2014 are allowed to continue.

The Hub won’t work. An Integrity Commission will. DM

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