Corruption must be tackled; but how?
The Constitutional Court has spoken: its order is plain and clear. The Hawks, as anti-corruption fighters, are unconstitutional to the extent that their enabling legislation fails to secure an adequate degree of independence for them. The government has to remedy the defect in the law and parliament has been given until September 2012 by the court to do so.The ruling means that unless the anti-corruption machinery of the state is of an independent nature, it is ineffective in the fight against political and high-level corruption because of the possibility of political interference in the decision making processes within the corruption busting entity. The Hawks have demonstrated their lack of independence time and again. No truly "big fish" have been brought to book by them; their investigations into the allegations of wrongdoing in the conclusion of the arms deals was closed down by the Hawks and all manner of thin excuses have been preferred to avoid getting to grips with the issues, so much so that the President has now by-passed the Hawks and has appointed an independent commission of inquiry to look into the arms deals. All too often the Special Investigations Unit in the National Prosecuting Authority (NPA) is harnessed to do the work of an independent corruption buster.
It would seem, from somewhat vague early indications, that the government believes that a mere tweaking of the Hawks legislation will suffice to comply with the court order. Although no draft legislation has seen the light of day yet, the person briefing parliament on the matter is the head of the Hawks. His attitude seems to be that there is not much that needs to be done to comply. Protection of turf rather than attention to the detail of the judgment is evident from the briefing of sorts that was given to parliament. There has not been any proper follow up on the briefing yet, and the time available to meet the court imposed deadline is shrinking rapidly.
The appointment of Willem Heath as new head of the Special Investigating Unit (SIU) is inauspicious from the point of view of having independent corruption fighters. His independence has long since been compromised by his closeness to the Zuma-inner-circle. The public perception of his lack of independence is reflected in the many editorial and other opinions marking his appointment. Clearly, the President has not acted on the court's findings by making this new appointment.
In the meantime the National Planning Commission has, not surprisingly, identified corruption as a primary public enemy. It proposes that the fight against corruption be fought across a broad front by many agencies, concluding with the warning that: "numerous anti-corruption agencies and laws and forums also present their own problems due to overlapping mandates and a lack of strategic co-ordination of investigating bodies."
The Council for the Advancement of the South African Constitution (CASAC), the originator of the Red Card campaign against corruption, takes a view different to those of the government and of the Planning Commission. CASAC sagaciously regards corruption as the "biggest threat ever" to our democracy. It demands the establishment of a dedicated, independent, statutory anti-corruption agency with adequate funding from Treasury. Its role would be focused on education, prevention and enforcement. While CASAC sees a role for civil society and others in the fight against corruption, it feels the responsibility should be that of a single agency, whose mission should be to fight the scourge of corruption.
CASAC disagrees with the stance of the Planning Commission that having multiple agencies to fight corruption will insulate them from themselves being corrupted; pointing out that the antidote to this phenomenon is transparency, accountability and independence.
With so many different approaches to remedying the independence defect in the set up of the Hawks, it is useful to attempt to synthesize them on the basis of application of principles that are foundational to our new constitutional order.
What does independence really mean in the context in which it is used in the court order? The majority of the Constitutional Court referred approvingly to the definition of independence given by the Organisation for Economic Co-operation and Development (OECD). Key elements are protection from undue political interference, structural and operational autonomy along with a clear legal basis and mandate for a special body, department or unit. Transparent appointment procedures with proper human resources management and internal controls help ensure independence.
The court found that the Hawks lack the necessary operational and structural attributes to be called sufficiently independent to qualify as a body that is constitutionally compliant and capable of discharging the international obligations assumed in treaties that bind the country.
On the basis of these criteria it is clear that the thoughtful and specialised approach of CASAC is preferable to that apparently foreshadowed by government and that suggested by the Planning Commission.
Ideally, and surely any proper campaign against corruption should be based on ideals, the solution adopted elsewhere in Africa may be an appropriate source of inspiration and guidance for the law-making process that is required by the court's order in the Glenister case.
IFAISA suggests the creation of a new Chapter Nine institution called "The Anti-Corruption Commission" (ACC) as an independent body to tackle the scourge of corruption is the safest means of ensuring that the body needed can function "without fear, favour or prejudice", or independently, in a manner safeguarded by the Constitution itself. Mere legislation is too easily changed or scrapped, as South Africa learnt to its cost in the sad saga of the dissolution of the Scorpions. The ACC should be headed up by a retired judge called the ACC Commissioner. There should be a deputy commissioner in each province and appointments should be made on the recommendation of an independent body which, unlike the JSC, is not dominated by politicians. Operatives in the ACC should be ultimately accountable to the Commissioner, who in turn should report to parliament annually or at more frequent intervals should the need arise.
The mandate of the Hawks should be adjusted to allow them to continue to work on priority crimes other than major corruption and on petty corruption matters and other matters in which both corruption and other crimes feature. The Hawks should be legally obliged to register all investigations of corruption of any kind with the ACC and will be obliged to pass on serious corruption cases to the ACC. It often happens that corruption is not the only criminal offence that a suspect has committed. Means of coping with a multi-pronged investigation will have to be devised so as to prevent a recurrence of the debilitating turf wars that were waged between SAPS and Scorpions in the past.
The ACC should look to parliament for its funding, not to the executive. Perhaps the budget of the ACC should be expressed as a percentage of GDP or tax revenue so that the temptation to strangle it financially is removed.
As the ACC will, in accordance with the CASAC demands, only have, educative, preventative and investigatory powers, the NPA will have to be obliged to show good cause to the ACC should it decide not to prosecute any corruption charges referred to it by the ACC.
It will not however suffice to simply have a "statutory agency" as CASAC requires. The experience with the Scorpions shows how vulnerable a mere statutory body can become in times of political turbulence, and how easily "selective prosecution of political enemies" takes place when the anti-corruption entity is not properly independent in the sense in which the Constitutional Court means it.
The things that went wrong with the Scorpions should be treated as a learning experience, and steps should be taken to prevent any repetition of the excesses indulged in when elements within the Scorpions became feral, acting beyond their mandate, especially in the field of information peddling and generally failed to uphold the rule of law and the Constitution.
It is possible to reconcile and appropriately accommodate elements of the various approaches that are in circulation at present, provided that some variation of the ideal solution is the one adopted by parliament. Long suffering South Africans deserve nothing less than the best possible anti-corruption entity. Without it a failed state, corroded by the scourge of corruption, is our bleak future.
Paul Hoffman SC
30th November, 2011
