The latest news on the justice front is that the budget of the National Prosecuting Authority is to be so severely cut that its 344-odd aspirant prosecutors, due to complete their internships in January, will not be able to take up the jobs in the NPA that they desire.
This is budgeting of the pennywise, but pound-foolish kind. A fully functioning criminal justice system has the potential to rake back the loot of State Capture, variously estimated to be between one and two trillion rand. Budget cuts and vacant posts won’t be conducive to recovery of ill-gotten gains from the corrupt. Some pragmatic rethinking of the situation and planning is required. Consider this: the entire NPA budget is in the same ballpark as VIP Protection in SA.
The law applicable to countering corruption is clearly stated in the judgments of the Constitutional Court in the Glenister litigation. The Stirs criteria are by now well-known despite the fact that they have never been properly implemented by the executive branch of government. Nor has Parliament adequately monitored the implementation of the legislation it has passed as a consequence of the Glenister rulings.
At this stage, it is common cause that the wholly inadequate combination of police investigators (the Hawks) and specialist prosecutors, in place since the demise of the crack Scorpions unit in 2009, has not been equal to the task of preventing, combating, investigating and prosecuting the levels of corruption, State Capture and kleptocracy seen in SA since the rise of Jacob Zuma to successive terms in the presidency.
Read more in Daily Maverick: Be careful what you wish for when hoping for a triumphant return of the Scorpions
The national Cabinet acknowledges the Stirs requirements as binding on the state. These are the words of the Minister of Justice, Ronald Lamola, when, in August 2023, he introduced the national Cabinet’s latest attempt at Stirs compliance in the form of the “Idac Bill” which envisages a Scorpions-like body called the Investigating Directorate Against Corruption:
“It creates a specialised entity within the NPA, staffed with trained individuals who enjoy the requisite level of independence, resources, and security of tenure to tackle corruption head-on.”
The problem with the minister’s statement is that when one applies the criteria in it to Idac, it is simply not true, not legally so nor practically so.
From a legal standpoint:
- Idac is not Stirs-compliant in any way, shape or form;
- The NPA is not independent at all because it is under the final responsibility of the minister;
- The NPA has to obtain his concurrence in any policy decisions the NPA makes and answers to the director general of justice, who is the accounting officer of the NPA;
- The NPA is run as a programme within the Department of Justice, not as an independent entity accountable to Parliament rather than the executive; and
- The NPA accordingly lacks adequate independence from the executive in the form required in the Glenister judgments.
From a practical perspective the NPA:
- Was gutted during the worst of the State Capture period and has not recovered since;
- Is infested, to use the terminology chosen by its own leadership, with “saboteurs” placed within its ranks as a result of the ANC policy of cadre deployment to see to it that no well-connected comrades face trial for corrupt activities (nor have they thus far);
- Is seriously underfunded; and
- Is incapable of recruiting or even interesting those with the type of specialist skills required to counter corruption.
In short, it is a fool’s errand to attempt to create a new body to counter the corrupt within the NPA as it is currently configured for all of the reasons set out above. It is also, practically speaking, no cure to relocate the NPA within Chapter Nine due to its intractable dysfunction on many levels.
The Cabinet’s proposals for the formation of Idac do not accord with the sentiments of the NEC of the ANC as expressed in a resolution taken in August 2020 calling upon Cabinet to establish, as a matter of urgency, a permanent stand-alone new entity of independent specialists well able to counter corruption and collect loot. The resolution has simply been ignored by Cabinet, for reasons not explained in public.
The official opposition is currently putting the finishing touches on legislation to establish a new Chapter Nine Anti-Corruption Commission along the lines suggested by Accountability Now in August 2021. Before Cabinet stirred itself into bringing forward the Idac Bill, the ANC caucus in the National Assembly was taking an intelligent interest in initiating the necessary legislation as a pair of committee bills, now they will be private members bills.
The Defend Our Democracy Movement and even some members of Nacac (the president’s national anti-corruption advisory council) support the idea of a single, independent anti-corruption body. Civil society organisations and faith-based organisations are also on board with the Chapter Nine solution because it ticks all the boxes the courts created in the interpretation of the meaning of the Constitution as it applies to anti-corruption work. For some unexplained reason, the Cabinet does not like the notion of a Chapter Nine Institution. It should say why.
Read more in Daily Maverick: Chapter Nine Institutions should have a key role to play in defending our Constitution
In the run-up to the forthcoming general election, it is likely that corruption will be widely identified as a burning issue that requires proper, constitutionally compliant attention from the political parties vying for the vote.
Poverty, inequality, joblessness, failures in service delivery from water and electricity to healthcare and municipal services are all, at least in part, due to the high levels of unaddressed corruption in SA. Priority ought to be given to corruption and to the raking back of the loot “liberated” by the corrupt, whoever they are. Apart from anything else, the country needs the money!
In any well-run election campaign, the attitude and plans of the Cabinet will be exposed for what they are: a feeble and devious attempt to appear to be anxious to deal with corruption that does not pass either practical or constitutional muster for the reasons set out above.
Appeals to reason in formulating a proper response to the rampant corruption abroad in the land are often characterised as akin to asking chickens to buy shares in KFC from Colonel Sanders. This argument requires interrogation. All politicians who nod in the direction of democracy crave the lifeblood of re-election more than anything else.
It is true that between elections there may be a tendency to shield the corrupt, but, at election time the ongoing paralysis involved in anti-corruption efforts by the state is overtaken by the desire to be re-elected. Those who think they can fool the electorate into thinking they are anti-corrupt, when they are not, need to be exposed for the charlatans that they are.
An election campaign that properly interrogates the need for reform and the inadequacy of the reforms proposed will compel many to act pragmatically on the realisation that their interest in re-election trumps the continued protection of corruption as a pastime for kleptocrats who have hitherto enjoyed immunity.
A clear focus on what is required by the courts in binding terms and a campaign of voter education will persuade all but the dullest of political operatives that it is time to support the establishment of Stirs-compliant anti-corruption machinery of state. Even the Cabinet is pretending to do so with its ill-considered Idac Bill.
It seems that the DA has already identified a constitutionally compliant way forward on counter-corruption. The question now is whether the paralysis afflicting the Cabinet and its charade of an Idac unit will be sufficiently exposed to turn votes against those politicians who continue to punt Idac over a Chapter Nine Institution.
It is possible that pragmatic progress toward constitutionally compliant anti-corruption machinery is attainable, even in the hearts and minds of those who currently prefer to pretend to be willing to address shortcomings in the system, when in fact they are not so prepared.
The job of the electorate is to identify and call out the culprits. They are all hiding in plain sight. They should be punished at the polls. DM