Possibly in an attempt to pre-empt grey-listing, the Government has in principle embraced the establishment of an Anti-Corruption Entity (ACE) of the kind that the Constitutional Court has already prescribed in binding terms. President Cyril Ramaphosa recently announced a range of plans to overhaul the Government’s anti-corruption strategy, and to ensure prosecutors’ independence, but will these measures be effective in rooting out corruption and ensuring the criminals are prosecuted?  Paul Hoffman (SC), director of Accountability Now,  weighs in.

If Government is going to get real about tackling serious corruption, there are a few facts and legal considerations that need to be considered. The decisions of the Constitutional Court in the Glenister litigation of 2011, are binding on government, yet they have never been properly implemented despite their loud and clear requirements.

In terms of the ruling, the Government is obliged to create a reformed anti-corruption entity that meets five key criteria, namely that it is specialised, trained, independent, resourced, and secure in tenure of office.These binding criteria set by the highest court in the land have become known by the acronym STIRS.

We are still without such an entity at present. Neither the Hawks nor the NPA, comprehensively meet these requirements.

Our prosecution service is not properly independent. It is run as a programme of the department of justice with the director general of justice as its accounting officer. The minister of justice retains what the Constitution calls “final responsibility” over the National Prosecuting Authority, which reports to him. A reporting line to our multi-party parliament is preferable by far for a truly independent entity. It is achievable if the entity has a Chapter Nine status. Chapter Nine of the Constitution mandates the creation of Institutions designed to protect and support democracy. These institutions are separate from government and independent from political parties or other interest groups. All Chapter Nine Institutions report directly to parliament.

The pernicious executive interference, influence and control that has hamstrung the NPA, and destroyed the Scorpions, should not apply to a truly independent anti-corruption entity. 

Secure tenure of office is equally important. The fact that no National Director of Public Prosecution has seen out his or her term of office is all you need to know about security of tenure in the NPA. A permanent Investigating Directorate (ID) within the NPA will be no better off than the Scorpions were due to its vulnerability to being closed by a simple majority in parliament. A Chapter Nine Institution’s closure requires a two thirds majority, and the legal abandonment of the rule of law, would need a 75% majority in parliament. Ordinary legislation tweaking the status of the ID within the NPA, could in future be repealed in the same way as the Scorpions enabling legislation was repealed.

Few self-respecting, skilled, and experienced corruption-busters will be prepared to serve in the revamped ID. They would be more likely to volunteer for the army of prosecutors that the Chief Justice says is required, if they are recruited into a stand-alone independent and properly resourced Chapter Nine Anti-Corruption Institution, that is fully compliant with the Glenister requirements.

The Anti-Corruption Entity proposed by Government is achievable if the right political will is brought to bear. The Constitutional Court has ruled that an ACE should specialise in anti-corruption activities. The personnel need to be highly trained and appropriately skilled. They must enjoy secure tenure of office and must be structurally and operationally adequately independent to perform effectively. Their resources must be guaranteed at a level equal to the task at hand.

South Africa can do all these things - we proved that with the high success rate of the Scorpions who were dissolved at Jacob Zuma’s behest in 2009. Their Achilles heel was their lack of security of tenure, a weakness that is easily cured by giving Chapter Nine Institution status to the ACE. The Scorpions were closed down by a simple majority in parliament, to do the same to a Chapter Nine Institution requires a currently unattainable two-thirds majority vote.

An announcement by cabinet that it has resolved to move forward with the establishment of an ACE to prevent, combat, investigate and prosecute serious cases of corruption, in which the amount involved is (say) in excess of R 5 million, and that the necessary legislation is being treated as urgent should persuade the decision-makers at FATF that grey-listing is not necessary.

Whether or not SA is grey-listed, moving ahead with the new ACE is vital to the survival of constitutional democracy under the rule of law in SA. Whether the reform is tackled before or after grey-listing, the need to cease as soon as possible with doing without the effective and efficient ACE required by the Constitutional Court in the Glenister litigation remains the first and most pressing priority of responsible governance in our country.

The patriots in the NPA need to oppose the cabinet’s plans to make the Investigating Directorate into a permanent feature of the NPA. Instead, they should get behind the DA and IFP (and even the ANC NEC resolution of 4 August 2020) by insisting on the best practice solution to the ongoing corruption issues in South Africa. That solution is the proper and whole-hearted implementation of the decisions made by our highest court in the Glenister litigation, by establishing a Chapter Nine institution that meets all of the STIRS requirements.

Written By Paul Hoffman (SC), Director, Accountability Now