The doubly moderated deliberations on crime and corruption in South Africa during the first panel discussion of Daily Maverick’s The Gathering at the Cape Town International Convention Centre on 14 March 2024 reveal and confirm the urgent need for an anti-corruption entity (ACE) for South Africa that is effective and efficient.

Those campaigning for office should identify corruption as South Africa’s primary and most pressing election issue. The scarcity of jobs, failures of service delivery at all levels, the “load shedding” by Eskom, the dysfunction in the transport and hospital systems, and most other perennial complaints are, on analysis, attributable in large part to the pervasiveness of corruption in South Africa both today and in the recent past.

Looting of the public purse goes unpunished. Loot is not recovered, as it could and should be. The poor suffer most in the absence of a fully functioning ACE.

Panel discussions do not lend themselves to in-depth analysis, especially when big egos clash and the need to entertain via jests, jibes and jousting trumps sober analysis.

Here’s the thing: Since the 2009 demise of the Scorpions, a unit within the National Prosecuting Authority, South Africa has in effect been without an ACE. The Scorpions had a fatal weakness. They were created by an ordinary statute which the ANC could and did repeal using its simple majority in Parliament. In the place of the investigative functions of the Scorpions came the Hawks, a police unit tasked with the investigation of “priority crimes” including corruption.

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The Hawks have not been a success in fighting corruption because their structural and operational environment is not conducive to work on kleptocracy, serious corruption and the fallout of State Capture. There are good people in the Hawks and the NPA, they need to be capacitated, empowered and properly resourced at operational and structural levels.

Wisely, the government has, post-Zuma, recognised this and has, via a questionable 2019 presidential proclamation, given the NPA some investigative capacity by setting up an Investigating Directorate (ID) within the NPA. It has about 200 files open in a context in which more than 1,400 miscreants were identified by the Zondo Commission alone.

And it was just scratching the surface. No politicians have been jailed for their role in State Capture. The Guptas are scot-free in Dubai, according to the belief of the justice spokesperson on the panel. Beefing up the system is obviously indicated.

At present, awaiting presidential signature, there is legislation in the works in Parliament nicknamed the “Idac Bill”. It is designed to beef up the ID and address some of its unconstitutional features. Chief among these is that it serves at the pleasure of the President and can be closed down at the stroke of his pen.

The new Idac (Investigating Directorate Against Corruption) is touted by the government as a “permanent” addition to the anti-corruption armoury because, like the Scorpions, it will be the creature of an ordinary statute and not a presidential proclamation. Describing such an entity as “permanent” is misleading because Idac can be closed down just as easily as the Scorpions were disbanded.

This is sure to happen as soon as it takes an interest in the alleged criminality of senior politicians, who are not in short supply in the era since Jacob Zuma miraculously recovered from being fired by his predecessor in 2005 (for his alleged involvement in corruption) and nevertheless managed two terms as president of South Africa.

The Idac Bill will not pass constitutional muster. The Constitution means what the Constitutional Court says it means. As regards the establishment of an ACE, that court has given sustained attention to what is required. The trilogy of cases mounted by Bob Glenister, as a public interest litigant, address what the Constitution requires of the ACE in South Africa. Here is what the justices laid down, in terms that bind the state, in the second Glenister case:

“[197] We therefore find that to fulfil its duty to ensure that the rights in the Bill of Rights are protected and fulfilled, the state must create an anti-corruption entity with the necessary independence, and that this obligation is constitutionally enforceable.  It is not an extraneous obligation, derived from international law and imported as an alien element into our Constitution: it is sourced from our legislation and from our domesticated international obligations and is therefore an intrinsic part of the Constitution itself and the rights and duties it creates.”

The legislation to which the court refers includes Precca (the Prevention and Combating of Corrupt Activities Act), which has an extensive preamble that makes it clear that corruption is officially viewed as a human rights violation in our law. The international law treaty obligations are derived from treaties at the UN, AU and SADC levels, all of which oblige the state to keep an independent and effective ACE.

In the third Glenister case the court, at the outset of the majority judgment, made it clear that a single ACE is the requirement of our law. Scant regard has been given to the requirements so laid down in the actions of both the executive and the legislature. The latter is meant to exercise oversight over the implementation of the new 2014 legislation which has so clearly and obviously failed to address grand corruption in South Africa. As a result the state has been seriously impoverished by the corrupt, especially those involved in State Capture.

As the Idac Bill locates the proposed new ACE in the NPA, the question that arises is whether being so located fits the criteria for the ACE that have been prescribed by the court. These criteria have become known as the STIRS criteria, a useful acronym that refers to the court’s reliance on independence, specialisation, adequate training and resources as well as secure tenure of office.

While the Constitution does require that the “prosecuting authority exercises its functions without fear, favour or prejudice”, the independence of the NPA is not constitutionally entrenched and has never been established in national legislation. This omission is due to the desire of the government to exercise hegemonic control of all the levers of power in society. This desire informs the underwhelming response of the government to the Glenister rules.

The minister of justice has “final responsibility over” the NPA and must concur in all prosecution policies devised by its leadership. These features appear from section 179 of the Constitution. The director-general of justice is the accounting officer of the NPA and it is operated as a programme within that department. None of these features, quite obviously so, are elements of operational and structural independence.

Since Idac will not be independent, have guaranteed resources and enjoy secure tenure of office superior to that of the now defunct Scorpions, it is plain that the Idac legislation envisaged to address the need for an ACE will, when challenged, be struck down as invalid for its want of compliance with the STIRS criteria, unless late amendments are made to address these shortcomings. Since the President has not yet signed the bill, it is not too late to reconsider it.

Referring to the lot of the Scorpions, the court observed that:

“[212] The lack of independence is reflected in our view most signally in the absence of secure tenure protecting the employment of the members of the entity and in the provisions for direct political oversight of the entity’s functioning.”

In short, bringing back the Scorpions in the guise of Idac just won’t do from a constitutional perspective. The government should reconsider. It may well be encouraged to do so by the soon-to-be-published recommendations of the National Anti-Corruption Advisory Council which has spent the past two years taking a deep dive into the topic of reforming the criminal justice administration to better capacitate it to deal with corruption.

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Idac will not attract the skilled specialists needed; a new Chapter 9 entity of the kind envisaged by most opposition parties will be able to recruit the best of the Hawks, the SIU and the NPA to its ranks to make it the ACE the court envisages. And it can pay for itself by raking back the loot of State Capture and other corruption.

Accountability Now has long suggested the establishment of a new ACE in the form of a Chapter 9 Institution to prevent, combat, investigate and prosecute serious corruption. There may be other constitutionally compliant ways of establishing the much-needed ACE, but we do not know of a better one. We remain open-minded and ready for persuasion.

The judgment from which extracts are quoted above is included in “Under the Swinging Arch”, available on our website. It is instructive to read from paragraph 166 (at page 199 of the ebook) of the judgment to the end in order to be informed on what the law requires.

To whet the appetite to read on, the court explained:

“The need and rationale for combating corruption

“166. There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

The acronym “STIRS” was mentioned during The Gathering discussions. While we admit authorship of the acronym, as can be seen above, the ACE criteria it sums up in a word are those of the Constitutional Court.

The need for an ACE that is STIRS compliant has been recognised by most opposition parties. This fact will have to be taken into account should the ANC become involved in serious coalition negotiations after votes are counted on 29 May.

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A proper constitutionally compliant ACE is urgently needed in South Africa. The country is on the FATF grey list, its economy is in the doldrums, the latest national Budget dips into reserves. Significantly, joblessness is chronic due to the lack of business confidence that necessarily precedes new investments which create jobs. Prudent business people hesitate to make new investments when corruption is rife. When it is properly addressed, business confidence is stimulated and grows.

If the government persists with the Idac Bill in its present form the ensuing legislation will be impugned in court and at the same time relief aimed at achieving the proper implementation of the STIRS criteria will be sought in public interest litigation necessitated by the unwillingness of the government to act on what is required of it by the Constitutional Court in the judgment referenced above. DM