Two-and-a-half months have gone by since the ANC announced to the world that its National Executive Committee has resolved to call upon Cabinet to establish a separate, stand-alone independent body to “deal with” corruption in SA.
The decision so made is both timely and appropriate. Timely, because the ravages of grand corruption are currently strangling the prospects of a sustainable economic recovery. Appropriate, because doing so will bring the position of the ANC back into line with the rule of law and the binding requirements for capable corruption busters that were laid down in the Glenister litigation, a unique trilogy of public interest cases that all ended up in the Constitutional Court on appeal.
Much as the National Prosecuting Authority and the SAPS of 2020 may like to end the culture of corruption with impunity still abroad in the land after the Zuma years saw a savage campaign to capture the state, the skill, the will, the capacity, the capability and the resources are not available in these hollowed out and corrupted institutions and will not be for many a long year.
National Director of Public Prosecutions (NDPP) Shamila Batohi has admitted that efforts thus far to counter corruption are but a “pinpoint on an iceberg”. The fruits of her clean-up campaign, worthy as it is, will not be available timeously. Rebuilding a hollowed-out institution takes more time than is available to South Africans of goodwill who long for the economic recovery which the Economic Reconstruction and Recovery Plan (ERRP) envisages. The jobs that come with economic recovery will not emerge from the lockdown, the “covidpreneurism”, and the Zuma years if the corrupt are not issued with those longed-for orange overalls soon.
The ANC NEC’s call was expressed as being “urgent”. It is indeed urgent that steps be taken to make the structural and operational reforms that are necessary. How to do so effectively and efficiently is the practical question which the Cabinet is now facing as it researches ways to implement the resolution presented to it during the first weekend of August 2020.
Until 2009, the investigative and prosecutorial aspects of corruption busting were combined and were the responsibility of the Scorpions, a unit of the NPA. Since then, with the disbanding of the Scorpions, the investigation of priority crimes (including serious corruption) is the responsibility of the new police unit called the Hawks, while the prosecution function remains with the NPA. Most, but not all, crime is prosecuted by the NPA.
Military courts in which military prosecutors function outside the NPA do exist, with the approval of the Constitutional Court. It will accordingly not be unprecedented to strip the NPA of its functions in relation to prosecuting grand corruption in all its manifestations in order to give them to the new institution of state that the NEC desires be urgently established.
Taking the investigation of grand corruption, properly defined by Parliament, away from the Hawks to bestow that task on the new agency is not controversial. It will relieve the Hawks of a mandate that they have never been equipped and enabled to discharge. It will also free up the Hawks to deal with other priority crimes, of which there are many.
The NEC’s requirement that the new body be permanent is a vital aspect of the reform. The closure of the Scorpions, made possible because they were a mere creature of an ordinary statute, could become the fate of the new body if it is created similarly and if a simple majority in Parliament so votes. This outcome is a distinct possibility if a Zuma-like leader emerges in the future.
The best available way to ensure the permanence of the new body is to house it in Chapter Nine of the Constitution. The existing six institutions created in that chapter cannot be closed by a simple majority vote. Their functioning as “state institutions supporting constitutional democracy” (as the Constitution itself puts it) will be enhanced if the new grand corruption busters are slotted into the natural home available for them between the Auditor-General, whose audits give first warning of accounting malfeasance, and the Public Protector, whose main mandate relates to maladministration of the state and public administration.
Many cautious lawyers and conservatively inclined observers are concerned that the constitutional amendment required to create a new body and to take away the prosecution of grand corruption from the NPA could be catastrophic to constitutionalism. It need not be so.
The Constitution has been amended without controversy on many occasions without dire consequences. It is a living document and ought to be changed to deal with the challenges of the day.
That grand corruption is a challenge is beyond doubt. The patent inability of existing structures to deal with grand corruption is a challenge that must be met if the rule of law is not going to be felled at the knees. No economic revival is possible without the rule of law firmly in place. The new investment needed will simply not be made.
The practical issue to be addressed is to decide on a definition of grand corruption. Even in international law, no such definition exists. The monetary value is probably the best measure. Parliament will have to decide the rand value at which the new body swings into action. This could be anywhere between R1-million and R10-million as the threshold amount for engaging the new body. The all-but-useless Anti-Corruption Task Team of the Zuma era chose R5-million as its cut-off point. Petty corruption will remain the business of SAPS to investigate and the NPA to prosecute.
Individual corruption busters worthy of the name are plentiful in SA. They are often former Scorpions now in the private sector, members of the anti-fraud sector in commerce or professionals in big firms of attorneys and accountants. They are not prepared to consider a career in the NPA for the obvious reason that the fate of the Scorpions has been a career-limiting object lesson for them. However, if guarantees of independence and proper resourcing are put in place and the recruitment procedures are transparently sound human resource management practices, it will be possible to attract the best of recruits to the new body. Their security of tenure of office will make the new body attractive to recruits.
The spectre of political interference and influence in all matters relating to the new body must be guarded against and catered for in the required constitutional amendment and in the enabling legislation. These measures will empower the new body to do its work in the manner envisaged by the values and principles set out in Section 195 of the Constitution.
As the creation of the new body along the lines suggested above (and as required by the NEC) will bring the anti-corruption machinery of state into alignment with the criteria laid down in binding fashion in the Glenister litigation, it ought not to be a matter of controversy, in principle, even though dispute on detail may emerge in parliamentary debate of the new law and the constitutional amendment. Both are required to give proper effect to the NEC’s instruction to the Cabinet.
Bright lines must be drawn between the mandate of the NPA and that of the new body. A repetition of the “turf wars” and “cherry picking” that marked the poor relations between SAPS and the Scorpions in the last days of Jackie Selebi’s leadership of SAPS and the final years of the Scorpions can be avoided if their respective mandates are carefully defined.
The aspect of the matter that is cause for the most alarm at present is that the Cabinet has not publicly reacted to the NEC’s call in any way, shape or form. The NEC does not appear to be pressing for action; at least, not in public. Calls by civil society and faith-based leaders for reform are not being dealt with responsively. The loyal opposition in Parliament has not reacted to the resolution of the NEC in public. Before the NEC resolution was made, the president told Parliament that the establishment of a Chapter Nine Integrity Commission was a “refreshing idea” worth “mulling over”. He later demurred with a “not at this stage” response when pressed at question time by the IFP.
The foundational values of openness, accountability and responsiveness all suggest that it is time for Cabinet to take the public into its confidence in relation to its response to the NEC resolution and to the concerns expressed above. DM