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Opinionista

South Africa urgently needs an Anti-Corruption Commission with real teeth – a Scorpions 2.0

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Glynnis Breytenbach is the DA Shadow Minister of Justice and Constitutional Development.

The fight against corruption cannot be solved through slapdash legislation which does nothing to ensure the independence of the National Prosecuting Authority and, by extension, the Investigative Directorate.

We have not seen one high-profile politician responsible for capturing our state successfully charged and prosecuted.

Three years after the conclusion of the State Capture Commission and two years after the publication of its first report, the National Prosecuting Authority (NPA) is simply not in a position to deal with the scale of corruption nor hold the individuals and entities implicated to account.

The NPA is required to fulfil its Constitutional mandate to prosecute crime without fear, favour or prejudice, but is itself an institution that suffered the most at the hands of the State Capture project.

The NPA has lost a vast number of experienced prosecutors, both to the private sector and to retirement. Very little has been done to remedy this loss.

The NPA is taking on the task of prosecuting complex criminal networks with a paucity of staff. At the same time, it must focus its efforts on rebuilding the hollowed-out institution while keeping the wheels of justice turning.

It is no surprise that it is struggling to prosecute these networks responsible for State Capture.

The NPA’s inability to hold those implicated in corruption, money laundering, organised crime and terror financing to account has contributed to the Financial Action Task Force (FATF) greylisting South Africa. 

The Corruption Perception Index for 2023 scored South Africa at 41, the worst it has ranked since 2012.

So what is the solution?

The Department of Justice and Correctional Services has touted the re-establishment of a permanent Investigative Directorate (ID) within the NPA that focuses on dealing with corruption as the solution. However, this solution is misleading for various reasons.

First, making the ID a permanent entity will not solve the problem. The ID was established five years ago by the President by way of a proclamation (as opposed to legislation). In the past five years, it has not achieved much in combating corruption. By simply giving it the name “permanent” we are not solving the inherent problems that led to it not working in the first place.

The real problems lie elsewhere – lack of sufficient appropriate skills, both prosecutorial and investigative, lack of forensic skills and capability, lack of political will and a lack of sufficient or any support from SAPS. 

And most importantly, a total lack of adequate funding.

The ID purports to replicate the Scorpions. This is simply not true.

The Scorpions was an effective unit because it had access to excellent and experienced prosecutorial expertise and investigative and forensic skills.

We also must not overlook that, because it was effective and successful, the ruling party dissolved it with great fanfare and glee when it started pursuing politicians.

Nothing in the recent legislation protects the ID from following the same fate. 

The governing party has taken great care to ensure that a simple 50% + 1 majority of politicians in Parliament can remove the ID by amending the NPA Act. 

The removal of the Scorpions was a key turning point in our state’s capture. Fool us once, shame on them; fool us twice, shame on us.

The fight against corruption cannot be solved through slapdash legislation which does nothing to ensure the independence of the NPA and, by extension, the ID.

It also does not pass constitutional muster. 

The Constitutional Court has expressed firm views in this regard. The NPA lacks institutional independence because, at the end of the day, the minister of justice has the final responsibility for it and also controls its budget – or lack thereof.

For these reasons, we propose a different solution to the problem: an Anti-Corruption Commission – an independent constitutional body housed outside the NPA.

We would place the Anti-Corruption Commission as a Chapter 9 institution with the same status as the Public Protector and Auditor-General.

In the following months, the Constitution Twenty-First Amendment Bill will be introduced in Parliament by the Democratic Alliance as a private members’ bill to establish the Anti-Corruption Commission. 

This Commission will have the power to investigate and prosecute serious corruption and high-level organised crime, including money laundering and racketeering.

Most importantly, it will not be beholden to the political elite.

As a Chapter 9 body, the Anti-Corruption Commission will be a robust organisation that is not dependent on those in power for its operations.

It will be well-resourced, enjoy a secure tenure of office, subject only to the Constitution and report directly to Parliament and not the minister of justice. Its budget will be determined directly by the Treasury, thereby removing the spectre of control by the minister.

The OECD, in its report on Specialised Anti-Corruption Institutions, recommends that these bodies “must be independent from undue interference, specialised in corruption and have sufficient resources and power to meet their challenging task”. 

It is quite clear that the NPA lacks these qualities. The Anti-Corruption Commission, as a Chapter 9 institution, will not.

The Anti-Corruption Commission is a dire necessity rooted in the need to address a history of corruption, civil disillusionment and political hypocrisy.

The failure of our current system to bring to justice many of the corporations and individuals implicated in corruption and organised crime only deepens inequality in South Africa.

It continues to deny delivery of guaranteed human rights and access to justice against those who steal, loot and misappropriate resources which were intended to uplift communities.

We cannot continue accepting the status quo of impunity and zero accountability. 

South Africa needs an Anti-Corruption Commission – an actual Scorpions 2.0 – to once and for all address the problems in prosecuting high-profile and complex matters effectively and efficiently, ensuring accountability and consequences for antisocial behaviour. DM

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Comments - Please in order to comment.

  • ST ST says:

    Corruption needs to be raised in public conversations as robustly as other social ills like GBV. It is endemic and normalised so much so that a lot of people clearly don’t see the issue with voting for or supporting individuals who are widely reported to be corrupt. They don’t connect the dots between that person who cannot explain their sudden wealth, living in mansion, wearing Gucci, children in expensive schools and their own poverty.

    A report a few years ago stated that SA youth accept that they believe that they’d likely need to pay someone to get ahead anywhere in SA. Sad indeed

  • Denise Smit says:

    This is for corruption. What about criminality. A politician assaults a police officer, and fires of a gun in public. He causes mayhem and destruction where ever he goes, even causing damage to businesses and private property. He can make any violence inflaming remark. His friend is the deputy minister of police. ?He has been found innocent in all cases and even the proof of videos and bullets have holes in them

  • Henry Coppens says:

    ANC et all will never support this – like the turkey voting for Christmas.

    • Fanie Rajesh Ngabiso says:

      Yet another mature, considered and invaluable approach – one which will positively impact every law abiding citizen of our country.

      If you don’t vote DA in this election you should seriously considered getting yourself certified.

  • Fanie Rajesh Ngabiso says:

    Yet another mature, considered and invaluable change – for every law abiding citizen of our country.

    Anyone not voting DA in this election is just plain stupid.

    • Rodney Weidemann says:

      Unfortunately, it is exactly this attitude that stops plenty of undecided voters from placing their X next to the DA – Nobody likes to be insulted for choosing who they vote for. If the DA genuinely wants to make headway, they need fewer of their supporters to be quite this insulting towards the voters they want to capture – then, maybe, they will grow their voting base, rather than seeing it shrink…

      • Fanie Rajesh Ngabiso says:

        Sadly, the truth is sometimes painful. While I understand your comment and I am sorry for offending your sensibilities, I have been deeply invested in news for many many years, and observed peoples’ inability to step back from petty bickering, racial only positions, rear view-mirror-only driving and likewise the inability look objectively and honestly at real truths like – there is no free lunch, there is no perfect political party, there is only better, and on and on. When adding to this that people ignore overt truth, written in huge neon letters because it does not suit their narrative it makes me realise that intelligent narrative is wasted.

        Finally let’s combine this with the simple fact that I am forced to sit and watch these self same individuals destroy my country, not just for me but for themselves also when there is a very real way in which we can all help all of us so simply unlike you I do not consider my observation unreasonable.

  • Rae Earl says:

    This is absolutely the best solution to the political muscle crippling the NPA. Shamila Bathoi is more than capable of running an operation like this but she stood no chance at the NPA which was denuded of honest and experienced staff members and forced to accept a hopeless budget before she arrived there. That was instituted by arch criminal Jacob Zuma and has been cemented in place by today’s top ANC hierarchy. Under a DA led government the advent of Glynnis Breytenbach’s Anti Corruption Commission allied to a Scorpions 2 unit will ultimately result in prosperity returning to SA.

  • Concerned Citizen says:

    If it does not meet the requirements set by the Constitutional Court, take the government back to court.
    Surely they are in contempt of a court ruling.

  • Jan Vos says:

    “South Africa needs an Anti-Corruption Commission,”- like a pain in the butt. More “commissions” only leads to more corruption. The “commissions” are corrupt as well…

  • Kenneth FAKUDE says:

    We have all the resources to fight crime including willing whistle blowers which we fail to protect.
    We have a diverse parliament what is lacking is the will.
    Political parties benefit when the ruling party fails so a lot will be allowed to happen for credit gains.
    When will we see parties flooding the courts for implementation of governance resolutions passed in parliament?
    They are all obsessed with getting the ANC out of power not holding the ANC accountable.
    A majority of realistic South Africans want the ANC out yesterday already but this numbers game works in different dynamics, in the mean time let’s hold them to account.

    • ST ST says:

      Scary thought…” a lot will be allowed to happen for credit gains.” But true in toxic ‘democracies’ like SA, USA

      It’s all a (victimless!) game…never mind the citizens. They’re just collateral damage in the game to get to the ‘Thrones’. That’s what matters?

    • John Pius says:

      Yes SA do need Scorpions 2.0 but times has changed as well. Back then, corruption was .
      Thanks for speaking my mind, the truth, the only truth and nothing but the truth. Politicians are just pure evil. Given their evilness, I have forced myself to accept that they can loot but is shouldn’t be more than 30%. For real, they are only stealing 30% and spending the other 70% properly poverty will be missing in SA dictionary.

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