The creation of a corruption-fighting body built along the lines of the Scorpions — with the same inherent flaws as faced the Scorpions — will see such a body suffer the same fate.

The failure of the government to counter serious corruption effectively and efficiently, as required by the Constitution, is becoming a pivotal issue in the run-up to the 2024 general elections. Rightly so. 

All contestants have to create a platform that includes as a leading manifesto item their plans for reform of the limping criminal justice administration which has failed to get to grips with serious corruption since the disbanding of the Scorpions in 2009.

The Scorpions were a unit within the National Prosecuting Authority which specialised in the investigation and prosecution of serious corruption, all under one roof, using a “troika system” to do its work. 

Intelligence-led investigations directed by seasoned prosecutors, and using forensic specialists whenever needed, led to the high rate of success enjoyed by the Scorpions who liked to call themselves the “People’s Advocates” because their work involved protecting the people of the country against the ravages of serious corruption.

Today, as parties prepare to face the electorate, a variety of solutions to the scourge of corruption are available for voters to ponder before casting their ballots in the election in 2024.

Scorpions doomed

The tripartite alliance led by the ANC, in government since 1994, has been responsible for the demise of the Scorpions in a highly contested process that started in 2007 in Polokwane when the ANC passed a resolution demanding the urgent dissolution of the Scorpions. 

It ended in 2014 when the last of the Glenister cases that impugned the constitutionality of the changes made was finalised. 

The successors to the investigative functions of the Scorpions, known as the Hawks, are a police unit officially called the Directorate for Priority Crime Investigation. Some of the functions of the prosecutors in the Scorpions are now in the hands of a body within the NPA known as the “Investigating Directorate” (ID) which was established by proclamation in 2019 and has all of 97 dockets on its plate.

The ANC recognised, as long ago as 2020, that the Hawks and ID are not up to the task at hand due to the high incidence of serious corruption and the concomitant culture of impunity in SA. 

The National Executive Committee of the ANC passed a resolution in August 2020 calling for the establishment of a stand-alone, independent, specialist body of a permanent nature to deal with corruption. Somewhat optimistically, the resolution was greeted as a “Eureka” moment at the time.

Although the instructions to the national Cabinet contained in the resolution are expressed to require urgent attention, Cabinet has ignored them — in breach of the pecking order in the ANC which regards the NEC as the highest decision-making body on policy in the party between conferences.

Somewhat belatedly, Cabinet now proposes an upgrade for the ID in a bill that envisages the creation of a new body: the Investigating Directorate Against Corruption, or Idac, to be located in the NPA as a unit structurally and operationally indistinguishable from the Scorpions on all major aspects of its design and functioning.

Depending on whether one pays attention to the Minister of Justice or his deputy, the intention behind the creation of Idac is a new permanent body specialising in serious corruption investigations and prosecutions (the minister) or a “stopgap measure” (the deputy minister) put in place to await a report from the National Anti-Corruption Advisory Council. (Nacac).

Nacac is in place with a purely advisory role at the behest of a dithering president who uses it as an excuse for kicking the can down the road rather than taking decisive action on corruption. 

The indecision is attributable to weak leadership or fear of prosecution of many in leadership positions in the ANC, or both. There is no mystery for Nacac to unravel on the topic of investigating and prosecuting serious corruption.

On the contrary, there is a clear and concise judgment of our highest court, commonly called “Glenister 2”, which has loudly and clearly spelt out the criteria by which such functions are to be carried out. 

While sensibly leaving it to the other spheres of government to make the decision of a reasonable decision-maker in the circumstances, the court has set the criteria by which to establish the body required. 

The main criteria have become known as the stirs (specialised, trained, independent, resourced and secure in tenure of office) criteria and they are notably absent from the ID and Idac.

Even the Scorpions, a creation of the Mbeki Cabinet, did not measure up to the stirs criteria except as regards training and specialisation. 

Its staff were sent to the FBI and Scotland Yard for the training necessary to enable them to specialise in countering serious corruption. So well did they do their work that they incurred the ire of ANC politicians who participated in the Travelgate scandal and were convicted of fraud following Scorpions-led investigations. 

They also successfully prosecuted the Chief of Police, Jackie Selebi, and Tony Yengeni, the Chief Whip of the ANC in the National Assembly. The work of the Scorpions lives on in the pending prosecution of Jacob Zuma.

However, the Scorpions, as a unit within the NPA, lacked the necessary independence, resourcing and security of tenure of office. 

It is therefore misplaced wishful thinking to hanker after the re-introduction of a Scorpions-like body as a solution to the issues around unsolved cases of serious corruption, organised crime, kleptocracy and State Capture.

Regarding the independence of the Scorpions: being part of the NPA had them under what the Constitution calls “the final responsibility” of the Minister of Justice. 

That minister has to concur in all policy decisions of the NPA (and this included the Scorpions until their disbandment). Worse still, the accounting officer of the NPA is the director general in the Department of Justice. In fact, the NPA is run as a programme within the Department of Justice. 

This may well work with respect to its everyday functions in prosecuting ordinary criminals, but it is not an appropriate structure for operating with the independence needed by those who counter serious corruption successfully. 

The disbanding of the Scorpions is proof of this point, as is the huge backlog of corruption cases that have accumulated since their demise.

On guaranteed resourcing 

It was planned that the Scorpions would be grown to a staff complement of about 2,000, but by the time they were disbanded, they had only slightly more than 500 personnel. 

Under-resourcing of anti-corruption entities is a mean trick by corrupt governments around the world that are desirous of clipping the wings of those fighting the corrupt.

Secure tenure of office

Being a creature of an ordinary statute, the Scorpions were vulnerable to closure by way of a decision of Parliament taken by a simple majority. 

That fate befell them after incurring the ire of the ANC, whose crooked leaders felt put upon by the Scorpions. 

Secure tenure of office flows from an entrenched position in the architecture of the Constitution. In SA that position is enjoyed by Chapter Nine institutions which cannot be closed down by a simple majority in Parliament and which also enjoy constitutionally recognised independence.

The ANC is going into the 2024 elections with Idac as its proposed solution to the issues around unsolved cases of grand corruption, not only in State Capture but also in general. 

Idac is structurally and operationally indistinguishable from the Scorpions and is liable to face the same fate. The deputy minister’s view of Idac as a stopgap measure tells you all you need to know about its security of tenure of office.

Opposition plans

The official opposition has a different plan to counter serious corruption. 

Two private members’ bills are in the works at Parliament and they are designed to compete directly with Cabinet’s Idac bill, which the DA regards, rightly so, as unconstitutional. 

The two bills envisage an amendment to the Constitution to create a new Chapter Nine Anti-Corruption Commission and its enabling legislation.

The DA’s plan to counter corruption is based on a suggestion made by Accountability Now in the wake of the Glenister litigation and contained in drafts presented to the executive, the legislature and the NPA in August 2021 after it became apparent that Cabinet was ignoring the August 2020 resolution of the NEC of the ANC. 

Accountability Now presented its ideas to Parliament on 17 March 2023. 

Serious thinkers in the ANC parliamentary caucus, especially those concerned about their prospects of re-election, look favourably upon the idea of a new Chapter Nine body to counter serious corruption. 

The Defend Our Democracy Campaign and faith-based leaders also support the setting up of a Chapter Nine institution.

Many of the smaller parties in Parliament also appreciate the binding nature of the criteria set by the courts, and they too support the DA’s bills. 

The IFP has embraced the idea since 2019 and it is expected that new formations like ActionSA, Rise Mzansi, and Bosa will see the folly in the Idac bill and will also support the establishment of a Chapter Nine Anti-Corruption Commission as the best-practice method for implementing the binding decisions of the Constitutional Court in the Glenister litigation. 

The Deputy Minister of Justice has given the Idac bill an effective kiss of death; if the ANC has any sense, it will abandon the bill which has apparently not been certified as constitutional by the Chief State Law Advisor. 

The ANC would be better advised to support the DA’s bills, thereby defusing corruption as an election issue.

The call to “bring back the Scorpions” made by the likes of a contrite Secretary General of the ANC, who was at the forefront of the moves to disband them back in 2007, should be regarded with suspicion and great caution. 

The mission of the ANC is to secure hegemonic control of all the levers of power in society. The rulings of the court do not countenance that for stirs-compliant anti-corruption machinery of state. 

Their lack of independence and secure tenure of office were the Achilles’ heel of the Scorpions, and will be (as the Deputy Minister of Justice so tellingly points out) the Achilles’ heel of Idac.

It is both idle and wishful thinking to hanker after the Scorpions. 

Rather support the new Chapter Nine body by voting for a political party or independent candidate whose manifesto includes a clear commitment to creating such a body. DM