“As long ago as 2011, our highest court set the parameters for corruption busting in terms that bind the state. The Zuma administration had no appetite for introducing the needed reforms. Now, parliament has decided to consider draft legislation aimed at achieving a best practice implementation of the rulings of the court.” – Paul Hoffman, SC, Director Accountability Now.

In the wake of Chief Justice Raymond Zondo remarking that “an army of prosecutors” will be needed to process the report of the State Capture Commission, the National Assembly’s Constitutional Review Committee in parliament unanimously decided, on 3 June 2022, to give anti-corruption organisation, Accountability Now, a comprehensive hearing on its proposed “Chapter Nine Integrity Commission”, a body designed to investigate and prosecute serious corruption cases in South Africa in a constitutionally compliant manner.

Both SAPS and the National Prosecuting Authority are currently gutted due to the ravages of state capture and a chronic lack of appropriate resources and funding. Insufficient specialist capacity, the presence of “saboteurs” in the ranks and the ongoing inability to attract suitably qualified and experienced personnel render both toothless in the battle against the corrupt.

Given that the loot of State Capture has been estimated at between R1- and R2-trillion, there is every reason for the state to regard the matter of recovering the money and holding the looters to account in criminal trials as urgent. Potentially, an independent and specialised anti-corruption entity would have the capacity and the skills to investigate and prosecute the vast number of corruption cases arising out of the Zondo Report.

The Chapter Nine Integrity Commission (Ch9IC) proposed to government by Accountability Now in August 2021, could fit this bill. The Ch9IC will be a standing commission with a constitutional mandate, not a commission of inquiry. Its staff will be hand-picked, and integrity tested. Carefully selected specialists will be drawn from the best of the Hawks, the prosecution service, the Special Investigations Unit (SIU) and from the private sector where former Scorpions long to return to the ranks of “the people’s advocates”.

There is also a need to implement properly what the Constitutional Court has ordered in terms that bind government. That Court first laid down the criteria applicable to the specialised anti-corruption entity. It is required to secure timeous delivery of our guaranteed human rights and to perform our international treaty obligations in the anti-corruption sphere. The rulings in the second Glenister case delivered in March 2011 aim to capacitate the state to counter the corrupt effectively and efficiently. There was no appetite for this in the Zuma era.

In terms of the specialised, trained, independent, resourced, and secure, (STIRS) criteria laid down by the court, the entity should be a specialised and properly trained unit that is both operationally and structurally independent and well-resourced with guaranteed funding. In addition, it must enjoy secure tenure of office. These features are dismally absent in the current structures through which the Hawks investigate corruption and the prosecutors  prosecute the corrupt. How best to comply with the STIRS criteria, informs the thinking behind the proposal for a Chapter Nine Integrity Commission. (Ch9IC)

Accountability Now has long advocated the establishment of a Ch9ICthat is given a mandate to prevent, combat, investigate and prosecute serious corruption. Its suggested legislation may not be the holy grail, but it is compliant with the criteria set by the court with binding effect on government. The drafts were supplied to Cabinet and Parliament in August 2021. They should urgently be debated in Parliament so that the remedial legislation needed can be aired in public with the participation of active citizens. The Ch9IC could be established within months if the emerging cross-party consensus is used to good effect and the public participation process is given the urgency that is now accepted by the deputy minister of justice.

The National Executive Committee of the ANC appears to be on the same page as Accountability Now. In August 2020, it instructed Cabinet to establish, as a matter of urgency, a stand-alone, specialist, permanent and independent anti-corruption body that ticks all the boxes of the binding Glenister criteria. It was indeed, when no reaction by Cabinet to this instruction emerged in public within a year, that Accountability Now made its own drafts available publicly and to Cabinet and Parliament. They are on the Chapter Nine page of its website together with an explanatory memorandum. There is also an executive summary of the memorandum.

Chief Justice Zondo’s report on his findings of fact and his recommendations are not of a binding nature. However, they will be instructive and informative to those who favour good governance under the rule of law and the Constitution in the place of the capture of the state by kleptocratic forces bent on satisfying their own greed rather than promoting the public good.

The report, in which taxpayers have invested about R1-billion, is damning. It highlights an urgent need to rake back the loot of State Capture and to hold those responsible for grand corruption and kleptocracy associated with it to account in both the civil and criminal courts of the land.

Currently, the SAPS and NPA are mandated to deal with corruption. The police, via its (post-Scorpions) Hawks unit, must investigate all forms of corruption. The NPA must prosecute the corrupt identified in police investigations or in the work of its new Investigating Directorate (ID), a body introduced by presidential proclamation to serve at his pleasure with a limited mandate. Because it lacks independence and is under executive control, it is questionable that the ID passes constitutional muster. The applicable legislation, which trumps any proclamation, regards investigations as the preserve of the Hawks. Prior to the division of work between police and prosecutors the Scorpions unit of the NPA did both the investigation and prosecution to good effect. The closure of the Scorpions was a travesty that paved the way for state capture.

The SAPS has been identified by the Institute for Security Studies and by Corruption Watch as the most corrupt of state institutions. Expecting the police to act as effective and efficient corruption busters is akin to asking Kaiser Chiefs supporters to cheer for Pirates.

We know with the benefit of hindsight, that no legitimate purpose of government was served by dissolving the Scorpions in 2009. Their main sin was that they did their work too well on highly placed politicians and their associates in business. Had the Scorpions been a Chapter Nine institution, the ANC would not have been able to muster the two-thirds majority necessary to dismantle them, and the Scorpions would still be with us today and might have nipped State Capture in the bud. The absence of secure tenure of office proved to be their Achilles heel.

The UN Sustainable Development Goals, to which SA subscribes, require strong institutions of government. The UN points out that: “Conflict, insecurity, weak institutions and limited access to justice remain a great threat to sustainable development.”

A Ch9IC, working on serious cases in which more than (say) R5-million is involved, will be a strong independent institution that could do the hard work of holding the corrupt accountable. The costs involved of establishing a Ch9IC need not be prohibitive, especially if the existing SIU is blended into the new entity. This will end the duplication of effort that saw Bosasa’s malfeasance slip through the cracks in the system for a decade. As recouping the loot will be a consequence of the establishment of the Ch9IC, it will, in time, more than pay for itself.

Reform should also improve the lot of whistle-blowers - heroes of the state capture era. Greater protection, appropriate compensation, and a caring attitude towards them, are long overdue.

The reform contemplated also presents the opportunity for considering the latest anti-corruption research of the Paris-based international, Organisation for Economic Co-operation and Development (OECD), which has proposed non-trial solutions to jurisdictional and logistical challenges posed by international corruption. The incorporation of a legislated regime for monitoring and ensuring the integrity of processes of this kind will enhance the efficacy of anti-corruption efforts and considerably speed up recovery of loot from those who would prefer to “pay back the money” rather than take the pain of a long and expensive trial that may see them jailed for extended periods.

Up until now, the main missing ingredient has been the political will to take the steps necessary. Properly implementing the rulings made on the STIRS criteria will show due respect for the decisions of our highest court and a willingness to move with the times to stamp out the scourge of corruption.

The resolution of the Constitutional Review Committee is welcomed. It presents the opportunity to enhance parliamentary oversight of the executive by introducing laws better aligned to the need to counter the corrupt in the circumstances that currently prevail. The establishment of a Chapter 9 Integrity Commission, should be the first step on the long road to reforms that properly implement the, as yet undelivered, promises of the Constitution.

Written by Paul Hoffman SC, a director of Accountability Now. He was lead counsel in the Glenister case in which the STIRS criteria were laid down by the Constitutional Court.