In an effort to persuade a sceptical parliamentary committee of the value of voting for the establishment of the Investigating Directorate Against Corruption (Idac), the following submission was made, according to news reports:
Creating Idac through legislation was “a significant step in creating a permanent structure within the NPA to drive prosecution-led investigation into corruption and to prosecute these offences”.
This statement by Kalay Pillay, spokesperson for the Justice Ministry, needs to be interrogated thoroughly by Parliament. The National Assembly is meant to exercise oversight over the activities of the executive, including its efforts at producing new legislation clearly required to counter the scourge of corruption that threatens the prospects of a prosperous future for the country.
The first and obvious criticism is that setting up Idac is a retrogressive step that, in essence, winds back the clock to the time that the Scorpions unit was set up within the National Prosecuting Authority (NPA) by Penuell Maduna, who was then minister of justice in the Mbeki Cabinet. He recognised the need for efficiency and saw that the police were not up to the task of investigating serious corruption in South Africa because of their institutional architecture, their own corruption, and a lack of suitable skills within their ranks.
From a legal perspective, Idac is indistinguishable from the Scorpions in that both will be, or were, creatures of statute created by a simple majority in Parliament with a mandate to go after cases involving serious corruption or organised crime. Both find or found themselves located within the NPA which has as its accounting officer the director-general of justice.
The NPA is run as a programme within that department. The whole of the NPA, including any future Idac and the Scorpions, until their disbandment in 2009, falls under what the Constitution calls the “final responsibility” of the minister of justice. The policies of the NPA are made subject to the concurrence of the minister of justice. The constitutional exhortation that the NPA function “without fear, favour or prejudice” in terms of national legislation that ensures this happy state has never been taken seriously by the government.
The ideals of the National Democratic Revolution, which aspires to “hegemonic control of all the levers of power in society”, are wholly inconsistent with the notion of a truly independent NPA and no national legislation exists to ensure that independence; this position obtains notwithstanding the provisions of section 179(4) of the Constitution.
No national directors of public prosecutions have ever seen out the fixed term of their term of office. Executive interference has seen to that unhappy state of affairs.
A major difficulty with creating Idac via ordinary legislation is that the legislation can be repealed by a simple majority in Parliament. This fate befell the Scorpions after they had incurred the ire of the ANC and of parliamentarians caught up in the Travelgate debacle which ended in multiple prosecutions for defrauding travel allowances made available to members of Parliament.
The fact that the Scorpions investigated Jacob Zuma and his financial adviser, Schabir Shaik, helped seal their sad fate. Shaik was, as long ago as 2005, convicted for corrupting Zuma. Zuma’s own trial is still pending.
The specialists, having been once bitten by the shenanigans of government, are likely to be twice shy about rejoining a unit that is structurally and functionally indistinguishable from the Scorpions.
These and other difficulties were grappled with by the Constitutional Court in the second Glenister case in 2011. In that case the new Hawks legislation (Hawks were set up to do the investigative work previously done by the Scorpions) was struck down as unconstitutional and sent back to the drawing board in Parliament.
In striking down the Hawks legislation as unconstitutional, the court was careful not to be prescriptive about the alternatives to the Hawks, but it did lay down, in binding terms, the criteria by which our anti-corruption architecture should be judged in order to pass constitutional muster. The Idac Bill, currently before Parliament, fails to pass the tests laid down by the court by a country mile.
The criteria set by the court have become known as the STIRS criteria; even the National Anti-Corruption Strategy of 2020 mentions them in a footnote. The acronym means:
- A body of Specialists in countering corruption;
- Properly Trained to acquit themselves of their complex tasks;
- Independent in both structure and operations;
- Resourced adequately in guaranteed fashion, and
- Secure in their tenure of office.
The proposed Idac will not properly comply with any of these requirements.
The anti-corruption specialists so sorely needed will have to be recruited as most of them left the NPA when the Scorpions were closed down by the newly installed Zuma-oriented administration after the 2007 Polokwane election of him to lead the ANC.
The specialists, having been once bitten by the shenanigans of government, are likely to be twice shy about rejoining a unit that is structurally and functionally indistinguishable from the Scorpions. Already the NPA is having great difficulty in finding suitable personnel. Creating Idac is not going to make recruitment any easier, wishful thinking to the contrary notwithstanding.
As to the necessary independence of the new Idac: it will suffer from exactly the same deficits as the Scorpions.
The proponents of Idac do not suggest how recruits will be trained. When the Scorpions were formed, both Scotland Yard and the FBI were roped in to train up staff to lead the Scorpions. It worked well and the Scorpions were a success. It seems that similar plans are not in the offing due to budgetary constraints.
As to the necessary independence of the new Idac: it will suffer from exactly the same deficits as the Scorpions in that it will be equally vulnerable to political interference and influence; lacking in the operational and structural safeguards that are available to Chapter 9 Institutions, which operate free of the executive branch of government. The Idac will be liable to be closed down summarily by a simple majority vote in Parliament.
There is no talk of guaranteeing the budget of the new Idac.
The Idac staff will not enjoy secure tenure of office. One need look no further than the fate of the Scorpions to see that this is so.
Far from being a significant step in the right direction, the establishment of Idac along the lines suggested in the bill currently before Parliament is a retrograde step that takes us back to the situation that prevailed until the successes of the Scorpions against politically exposed persons in high places led to the demise of their unit.
The unspoken attitude of the national Cabinet appears to be “heaven forbid that a STIRS-compliant entity sees the light of day, think of how many of us and our friends will be in jeopardy if that happens!”
The gormless way in which the President opened the national anti-corruption dialogue on 8 November tends to confirm that which is unspoken.
During his entire address the President did not touch upon the need for his government to comply properly with the requirements of the Glenister judgment. Its criteria are binding on the government and have never been properly implemented at any time since they were laid down.
While the President was speaking as head of state and head of the national executive whose meeting made him unconscionably late for his engagement to deliver the keynote address, he is also the leader of the ANC and has been since 2017. In August 2020, the National Executive Committee of the ANC passed a resolution in which it instructed his Cabinet to urgently establish a stand-alone, independent entity populated by trained specialists able to act without fear, favour or prejudice in countering serious corruption and organised crime.
Short of radically revising the powers of the NPA, the creation of the body envisaged by the DA is clearly the best-practice solution to the rampant corruption that is prejudicing the poor and destroying the future of democracy under the rule of law in South Africa.
That resolution has been ignored by Cabinet; instead, and somewhat belatedly, Idac – which has none of the characteristics ordered by the NEC – is the solution on offer from Cabinet. It bears mentioning in passing that the President is a member of that NEC and that the NEC is the highest decision-making body in the ANC. For some mysterious and unexplained reason the resolution has not been acted on in any way, shape or form. There has been no public accounting for the omission to act on the resolution.
The record also shows that it was the IFP, in March 2019, which introduced the President to the notion of setting up a new Chapter 9 Institution to tackle the corrupt. At the time the President found the idea “refreshing” and undertook to “mull it over”. It seems he is still mulling. He has certainly not rejected the notion at any time in his public utterances.
The President ought also to be aware that the DA is putting the finishing touches on two private members bills, piloted by the shadow minister of justice and designed to create and enable what the DA calls a “Chapter 9 Anti-Corruption Commission” to do the work the government currently apparently intends should be done by the feeble Idac, which is yet to be formed.
If he is so aware, he gave no inkling or indication of it during his speech. Short of radically revising the powers of the NPA, the creation of the body envisaged by the DA is clearly the best-practice solution to the rampant corruption that is prejudicing the poor and destroying the future of democracy under the rule of law in South Africa.
The suitability of the Chapter 9 solution is so obvious that it can be anticipated that those who subscribe to the Multi-Party Charter and others in the political contestation of 2024 will support the establishment of the commission so envisaged and first proposed to Cabinet in August 2021 by Accountability Now.
The drafts suggested by Accountability Now are in “Under the Swinging Arch”. The Glenister judgment, upon which the suggestion is based, is also an appendix to “Under the Swinging Arch”; its binding criteria can be seen from a perusal of paragraph 166 and following of the judgment.
If the President and Nacac wish to continue to ignore the binding nature of the judgment and the best-practice suggestions for its implementation, they do so at their peril. Seeking declaratory, mandatory and supervisory relief in court that is aimed at the proper implementation of the Glenister judgment’s criteria is a simple matter and could be coupled with an application impugning the constitutionality of Idac, assuming that Parliament is so ill-advised as to pass the Idac Bill.
One thing is certain: The future of constitutional democracy under the rule of law hangs in the balance and will be informed by the way in which the government responds not only to the recommendations of the Zondo Commission, but also to the binding criteria laid down by our highest court. DM