There has been an interesting development in the interactions in Parliament around the newly published draft National Prosecuting Authority Amendment Bill to establish the Investigating Directorate Against Corruption (Idac) as a permanent entity within the NPA.
According to Deputy Minister of Justice John Jeffery, the bill is a “stopgap measure” pending a report by the National Anti-Corruption Advisory Council (Nacac). The existing Investigating Directorate (ID) was established by President Cyril Ramaphosa in 2019 by proclamation — and not as a permanent entity.
Jeffery told Parliament’s Justice Committee this means the ID could be disestablished by another proclamation. As the lack of permanence makes it more difficult to attract investigators, the ID has to rely on seconded investigators.
The ID’s investigators and prosecutors have been seconded from the Hawks, the State Security Agency and the NPA. The bill, Jeffery said, would give the ID greater investigative capacity. He told MPs the National Anti-Corruption Advisory Council’s work, which is long-term, will include advising on strengthening the country’s anti-corruption institutional arrangements — including the possible establishment of an anti-corruption commission as recommended by the Zondo Commission of Inquiry into State Capture.
He added that Nacac aims to produce a report next year. “These are not issues that can be decided overnight,” according to Jeffery (Nacac was appointed over a year ago). He explained to baffled parliamentarians that “this bill is something that is urgently needed now. We want it passed as soon as possible so that the NPA is better equipped to fight corruption cases.”
It is necessary, in the interest of constitutional democracy, the survival of the rule of law, and the urgent but long-overdue duty to rake back loot and exact accountability from the seriously corrupt, that this report be subjected to some analysis.
The bill itself
The intention behind the bill is to make the existing ID, a unit established by presidential proclamation within the NPA, into a permanent entity within the NPA.
In the media release that accompanied the bill, the minister of justice contends that the bill satisfies the Stirs requirements (specialised, trained, independent, resourced and secure in tenure of office) laid down in binding terms by the Constitutional Court on 17 March 2011. Hitherto no legislation has been passed or implemented properly to satisfy the said criteria.
It was thought, as far back as 2014, that the police could effectively and efficiently acquit themselves of a mandate to deal with serious corruption via the formation of the Hawks (Directorate of Priority Crime Investigation).
However, nobody is suggesting that the Hawks of today are up to the task at hand. On their watch, State Capture, tenderpreneurism and even covidpreneurism have all flourished, convictions have plummeted and the seriously corrupt have enjoyed impunity, all the while stealing the state into penury.
The last S in Stirs — secure tenure of office — implies a measure of permanence, hence the ministerial stress on the topic. For the deputy minister to concede that far from being permanent, the new incarnation of the ID will be no more than a “stopgap measure”, is to concede that it will be unconstitutional if it is ever made law by the passing of the bill before or after Parliament rises to face the electorate next year. No “stopgap measure” can ever be regarded as proper compliance with the last Stirs criterion. By definition, stopgaps are not permanent.
To make matters worse, the location of the Idac within the NPA renders its “independence” criterion suspect because the NPA is under the “final responsibility” of the minister, needs his concurrence in its policies and looks to the director general of justice as its accounting officer. These are not features of an independent entity; the NPA is no place to locate anti-corruption machinery of state.
The notion that the bill is needed to help with recruiting specialist prosecutors and investigators is plain daft: the ministry should name one such person who would go to work for a stopgap organisation, given the experience of those who once worked for the now disbanded Scorpions.
The history of the ID
When he came to power after the resignation of Jacob Zuma on 14 February 2018, President Cyril Ramaphosa realised that he could not rely on the police to do investigative work on serious corruption properly.
He addressed this issue, entirely without reference to the law and the Glenister criteria, by creating an Investigating Directorate within the NPA via a presidential proclamation. This in itself is unconstitutional as there is legislation that reserves all criminal investigations to the police.
The proclamation of the ID in 2019 has been tolerated as a stopgap step by the executive on the way to proper compliance with Stirs criteria. At the time it was criticised.
The ID has been singularly unproductive (97 cases on file in four years) and unsuccessful both in the Nulane prosecution and in its attempts to secure the extradition of the Guptas hiding out in Dubai. It has been selective in the work it does, preferring to refer potentially politically awkward matters to other agencies.
Building the political will to comply with the Glenister requirements
Taking the need to counter corruption seriously is, in the final analysis, a matter of political will. When the will of politicians is informed by a culture of entitlement, the notion that “I did not join the Struggle to be poor” and their duty of service to the people is overtaken by their greed — kleptocracy and kakistocracy reign supreme. Self-enrichment supplants public service.
In such a milieu, the prevention of corruption is best achieved by making a well-publicised example of a large number of “Big Fish” in politics, public service and business who have succumbed to the temptations of grand corruption. Show trials ending in successful convictions that withstand appeals with exemplary sentences imposed can and should be allowed to replace the culture currently in place in SA.
This felicitous outcome remains beyond reach while there is no Stirs compliance in the anti-corruption machinery in place. Competent investigations always precede good prosecutions; without strong investigation services, the best prosecutors in the world struggle to secure convictions.
The fact that many (apparently not all) in the governing alliance subscribe to the value system of the National Democratic Revolution, which aims to secure unconstitutional “hegemonic control of all levers of power in society”, makes it difficult to cultivate a culture of respect for the rule of law by setting up the necessary independent entity that is Stirs compliant.
Nacac is chaired by Professor Firoz Cachalia of Wits, a former ANC politician. He has promised a report by Nacac before the elections due next year. Nacac is fortified by the support of expert researchers recruited to assist Nacac in discharging its mandate.
Cynics will regard setting up Nacac as a typically dithering response of the president to the pressure for change and the need to match the Stirs requirements with the hegemony he prefers. Hopefully, Nacac will respond actively to the attempt to kick the can down the road rather than join the deputy minister in doing so.
Time will tell whether Nacac will come up with a constitutionally pure and better solution than that favoured by the DA, the IFP and several smaller parties and interest groups like Defend our Democracy and the faith-based sector — namely the establishment of a Chapter Nine Anti-Corruption Commission that bypasses the executive and reports directly to Parliament.
The way forward
The Idac Bill should be withdrawn immediately. It apparently still lacks the necessary certification of the chief state law adviser and won’t get it in the light of the deputy minister’s concessions.
Nacac should present its promised report without delay. There is no rocket science required in relation to the necessary anti-corruption machinery of state. The binding Stirs criteria must be implemented both promptly and properly, no ifs, no buts.
On other topics such as prevention, public education and a “societal change” as Prof Cachalia puts it, the urgency is not as great as the need for radical reform of the criminal justice system’s capacity to counter serious corruption and rake back loot. As the country badly needs to rake back loot or go bust, tackling corruption as a crime first is a case of putting the cart before the horse in which the peripheral matters that engage Nacac’s attention may be found.
The parting gift of the current Parliament to the people of South Africa should be a Stirs-compliant entity that is operationally and structurally capable of countering serious corruption. There is no sense in allowing the matter to be held over for a future Parliament.
With cross-party cooperation of the kind seen when floor crossing was reformed, there is enough time available to do everything that is necessary to put in place a suitable entity that is constitutionally compliant.
If it is constituted in a constitutionally pure way that is preferable to the suggestions of the DA and Accountability Now, so much the better. It is in the crucible of honest parliamentary debate that the best solution will be found. Let that debate now begin. DM