International Affairs, Corruption and a culture of Human Rights (cont.)
Corruption has a supply side, being those who are willing and able to pay bribes, and a demand side, being those who are prepared to accept bribes or other benefits. Described judicially as "a cancer in society" corruption creates extreme inequity in markets and societies in which it is prevalent. Transparency International (TI) has during the course of 2008 conducted a scientific survey covering 22 countries around the world in order to produce its Bribe Payers Index, a ranking of the world’s most economically influential countries according to the likelihood of their firms to bribe abroad. South Africa ranks 14 out of the 22, with Belgium emerging at 1, the least corrupt country surveyed and Russia at the bottom of the list as the most corrupt.
The index is based on interviews conducted with senior business executives. When those interviewed in South Africa were asked: "How would you assess the actions of the government in the fight against corruption?" a whopping 56% replied "Very ineffective". Only in Singapore was the answer to the same question “Very effective” from 72% of respondents, Singapore was the only country to make it into double figures for the percentage of replies in the "very effective" category to this question. The interviews were conducted between August and October 2008 at a time when the South African parliament was debating a proposal that the Directorate of Special Operations, or Scorpions as they are branded, be disbanded. The Scorpions are a specially created anti-corruption and organized crime busting unit of the National Prosecuting Authority in South Africa whose investigators were allowed to function independently of the police and of political control. The unpopularity of the scheme to dissolve the Scorpions may have influenced the percentage of respondents who replied so negatively regarding the South African government’s effectiveness in the fight against corruption.
It should come as no surprise then that in South Africa the police are seen as the institution most affected by corruption, ahead of political parties and parliament. The Scorpions have been disbanded officially in terms of two new laws assented to on 20 February, 2009. South Africa is now without an independent anti-corruption unit of any kind. The legality and constitutionality of the legislation scuppering the Scorpions will be challenged in Court.
The prevalence of corruption in South Africa does not sit easily with the constitutional framework created when the new democratic dispensation came into being in 1994. The new Constitution is a state of the art document. The supremacy of the rule of law and the Constitution is entrenched. There is a separation of powers between the executive, legislative and judicial spheres of government with suitable checks and balances in place. The values of openness, transparency, accountability and responsiveness to the needs of the people are regarded as foundational to the new multi-party universal adult suffrage system in which human dignity, the achievement of equality and the advancement of human rights and freedoms in a non-racial and non-sexist way are the core values. There is a justiciable Bill of Rights included in the Constitution guaranteeing a wide range of rights and freedoms.
The state is bound to respect, protect, promote and fulfill the rights in the Bill of Rights. Everyone is equal before the law and has the right to equal protection and benefit of the law. The right to inherent human dignity has to be protected and respected.
Prior to the adoption of these lofty values South Africa was the polecat of the world. A sovereign white parliament clung to power and to the policies of apartheid in the face of increasing isolation and sanctions. None of the rights and values summarized here were available to all of the people and a virtual police state held sway. As Nelson Mandela put it in his inaugural speech on 10 May 1994:
"Never, never, and never again shall it be that this beautiful land will again experience the oppression of one by another...The sun shall never set on so glorious a human achievement. Let freedom reign."
Upon the adoption of the near miraculous transformation to constitutional democracy, in which all conduct and laws inconsistent with the Constitution are invalid and the Constitution itself is the supreme law, the isolation and sanctions ended and a stream of foreigners, mainly economic migrants with some new investors too, entered the country and sought to share in the transformation and the opportunities that it brings.
The government soon recognized that the opening up of South Africa to the global economic order was not necessarily all good. The stream of incomers seeking income included a disproportionate number of well organized criminal elements. The drug trade, abalone smuggling, human trafficking and other forms of organized crime flourished in the heady atmosphere of freedom and openness. The criminalization of opposition to apartheid has had the unfortunate side effect that getting into trouble with the police is not generally regarded as a socially unacceptable form of conduct. Prior to liberation it was a way of life for many of those who now lead the country; for some, it seems, old habits die hard.
Steps were taken to deal with organized crime properly so that the undermining of the integrity of the police could be prevented and law and order could be maintained in accordance with the promises of the new dispensation. These steps included the introduction of a corruption busting unit, called the Scorpions, which would operate independently of the police in the fight against organized crime and corruption. The importance of the institutional independence of the Scorpions needs to be stressed. The National Prosecuting Authority is headed by the National Director of Public Prosecutions. This official is not a politician. He or she is a professional prosecutor, a specialist who is a fit and proper person to lead the investigation and prosecution of crime "without fear, favour or prejudice" in the words of the Constitution and the empowering legislation. All prosecution staff take an oath of office to act in this independent way. While the Minister of Justice does have "final responsibility" for the National Prosecuting Authority, its policy is determined by the professionals at the top of the organization and only the National Director of Public Prosecutions may issue policy directives. The role of the Minister in policy is simply to concur in the policy worked out by the senior prosecutors.
This contrasts starkly with the position of the police. The Chief of Police, or National Commissioner of Police as he or she is officially called, does not enjoy the same level of sapiential authority (that is human resource management code for "clout") as his colleague the National Director of Public Prosecutions. He has no policy making functions at all. National policing policy is the responsibility of the Minister of Safety and Security who takes input from his provincial counterparts and determines policy at cabinet level. Police personnel are not sworn to act independently, they all answer – ultimately – to their Minister.
It is instructive to have regard to what was said at the time that the need to introduce the Scorpions was debated in parliament: The intention to establish the Scorpions was first announced by President Thabo Mbeki in his State of the Nation Address on 25th June 1999, in which he said:
"To enable our law enforcement agencies to translate this into reality, I am privileged to announce that a special and adequately staffed and equipped investigation unit will be established urgently to deal with all national priority crimes, including police corruption."
The then Minister of Justice & Constitutional Development, Dr P M Maduna, addressed Parliament on 1 November 1999 and stated that:
- Mbeki had repeatedly addressed Parliament on the issue of preventing and fighting crime;
- Mbeki had announced a bold initiative aimed at addressing the challenge faced by the criminal justice system in its fight against national priority crimes;
- these challenges included the existence of corruption among certain officers in law enforcement agencies, unsatisfactory standards of investigation which result in unacceptably low rates of conviction, and the general lack of an efficiently co-ordinated attack on organised and syndicated crime by investigation, intelligence and prosecution authorities;
- the Inter-Ministerial Security Committee and the National Director of Public Prosecutions had been hard at work to establish the Scorpions, which would complement and, where necessary, supplement the efforts of existing law enforcement agencies in fighting national priority crimes;
- these crimes include vehicle hi-jacking; offences related to possession of, or trading in, arms and ammunition; serious economic offences (or serious commercial crime); organised and syndicated crime; corruption in the criminal justice system; and crimes against the State;
- the office of the Department of Justice & Constitutional Development would be responsible for vetting members of the DSO to ensure that they were able to perform their duties competently, free of corruption and without fear or favour;
- there was a collective responsibility, across the political divide, to ensure that this initiative was properly resourced;
- the legislative framework provided for an appropriate constitutional balance between two equally important imperatives, namely to combat crime with conviction and resolve, and to do so in a manner that reflects our commitment to the rule of law and the provision and protection of human rights, whilst providing an effective deterrent to engaging in crime;
- all people should recognise the threat that crime poses for the development of our democracy;
- crime destabilises the economy and impacts dramatically on the poor and historically disadvantaged;
- the Scorpions would provide a supplementary national resource for law enforcement;
- the Scorpions would have a unique function and would face extraordinary challenges in executing their duties;
- in order to ensure that the Scorpions unit succeeds, it would be necessary to ensure that the Scorpions recruited the best and most talented corps of personnel available;
- in an effort to assist the Scorpions in realising the objectives that had been set for it, it should be remembered that what was being built was a specialist unit that must be able to take on, and deal with, increasingly sophisticated levels of criminality;
- countries that had committed themselves to rooting out organised crime and syndicated crime had discovered that conventional crime-fighting methods had failed against the sophisticated practices of international crime syndicates and organised crime;
it was necessary to send out a strong message that crime has no place in our society and does not pay.
On or about 7th February 2000, the then Minister of Safety and Security, Mr Steve Tshwete (“Tshwete”), conducted a media briefing on behalf of the Crime Prevention and Integrated Justice Sector. Tshwete stated that: prosecution-led and intelligence-driven investigations were a key deterrent in the fight against crime and corruption;
- the creation of the Scorpions gave effect to the determination to increase national conviction rates through prosecution-led investigations;
- the Scorpions unit would direct its energies at priority crimes including vehicle hi-jacking, syndicated drug and arms dealing, transnational crimes, money laundering and corruption;
- the Intelligence Services would be pivotal to combating crime at its source;
- improved methods of intelligence-gathering and close co-operation between the intelligence arms of State, the SAPS, Scorpions, Customs and Immigration Services would contribute to significantly improved investigations which in turn would impact on the quality of prosecutions and increase public confidence in our systems.
The necessary legislation was passed and the Scorpions came into existence on 12 January 2001. They have an enviable and extremely successful track record with conviction rates consistently in the range of 82% to 88%. In 2004 a police investigation into travel voucher fraud among numerous members of parliament was handed over to the Scorpions on the basis that the SAPS was not as well-equipped to deal with the matter. And so the "Travelgate" scandal was born. The investigation led to the prosecution and conviction of numerous politicians, most of them from the ruling alliance. Many pleaded guilty and were fined in terms of plea bargains negotiated. The Scorpions were also involved in the investigation of allegations of corruption concerning the arms deals. Both Tony Yengeni, a former ANC Chief Whip in the National Assembly, and Schabir Shaik, the current president of the ANC’s former financial adviser, have been successfully prosecuted. Jacob Zuma has been charged and an investigation into the arms deals is continuing, hampered by the resignation of senior investigators who have left the Scorpions because they have no appetite for being absorbed into the police. The Scorpions have also investigated and charged the Police Chief, Jackie Selebi, with serious crimes, despite political interference in their plans to do so. Selebi awaits trial and has resigned as Chief of Interpol. Inexplicably he was kept on by President Mbeki, under suspension when his fixed term contract expired while he was so suspended because of the pending criminal case. The post-Polokwane leadership seems not to want his services.
As far as international affairs are concerned, when it comes to the fight against corruption, South Africa has not been idle.
The country is a signatory to the United Nations Conventions Against Corruption as also the African Union Convention on Preventing & Combating Corruption. It is instructive to quote from the submission made by the Parliamentary Information and Monitoring Service of IDASA to the National Council of Provinces in the debate on the legislation in terms of which the Scorpions have been disbanded:
"INTERNATIONAL OBLIGATIONS REGARDING THE INDEPENDENCE OF AN ANTI-CORRUPTION AGENCY
24. In addition to these Constitutional imperatives, South Africa has acceded to a number of international treaty obligations that require it to ensure that its anti-corruption capacity is institutionally independent of potential sources of interference.
25. South Africa has signed and ratified both of the most significant international treaties intended to combat corruption, viz. the United Nations Convention Against Corruption (2003) and the African Union Convention on Preventing and Combating Corruption (2003), as well as the United Nations Convention Against Transnational Organised Crime (2003).
26. All these treaties enjoy a high level of international support and commitment and, hence, credibility. All three require the establishment of specialised anti-corruption agencies that must be characterised by real independence.
27. Article 36 of the UN Convention Against Corruption provides:
'Each State Party shall, in accordance with the fundamental principles of its legal system, ensure the existence of a body or bodies or persons specialized in combating corruption through law enforcement. Such body or bodies or persons shall be granted the necessary independence, in accordance with the fundamental principles of the legal system of the State Party, to be able to carry out their functions effectively and without any undue influence. Such persons or staff of such body or bodies should have the appropriate training and resources to carry out their tasks.' (Emphasis added)
28. Article 5(3) of the AU Convention provides that states parties undertake to:
'Establish, maintain and strengthen independent national anti-corruption authorities or agencies.' (Emphasis added)
29. Article 9(2) of the UN Convention Against Transnational Organised Crime, similarly, requires that:
'Each state party shall take measures to ensure effective action by its authorities in the prevention, detection and punishment of the corruption of public officials, including providing such authorities with adequate independence to deter the exertion of inappropriate influence on their actions'. (Emphasis added)
30. The reasons for this common requirement include the susceptibility of law enforcement agencies worldwide to corruption and organised crime, as is recognised, for example, in Article 9(1) of the Transnational Organised Crime Convention. Furthermore, susceptibility to these powerful forces of influential members of the business community and of the political class is part of the human condition around the world."
In terms of these conventions, the Republic of South Africa, as a signatory thereto, has undertaken inter alia to -
- develop and implement, or maintain, effective anti-corruption policies that reflect the principles of the rule of law, proper management of public affairs and public property, integrity, transparency and accountability; and endeavour to establish and promote effective practices aimed at corruption; and
- endeavour, in accordance with fundamental principles of domestic law, to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest; and
- develop and implement or maintain independent units to combat corruption."
The disestablishment of the Scorpions unit and the creating of a new unit within the South African Police Services (which is under the political control of the Minister of Safety and Security, and hence the ruling alliance), breaches the undertakings furnished in the treaties and violates South Africa’s international obligations.
In terms of section 231 of the Constitution, it is provided, inter alia, that international agreements are binding on the Republic. All three of the treaties mentioned fall into this category.
In the circumstances, the disestablishment of the DSO violates section 198, which requires that national security be pursued in compliance with international law and section 231 respectively of the Constitution. The country is effectively without an independent anti-corruption unit once the dismantling of the Scorpions is complete and this breaches its solemnly undertaken international obligations. No amount of tinkering with the new police unit intended to replace the Scorpions can ever render it institutionally independent of political control as it falls under the policy directives and ultimate control of the Minister of Safety and Security. The constitutional imperative to promote the achievement of equality can not be achieved if corruption is allowed to fester and spread. As TI points out, inequities follow from corruption. This is the antithesis of what the Constitution requires. Equality can not be established in an inequitable society. It is to be hoped that the Courts will, on the basis of the flouting of international obligations undertaken by the country, inter alia, strike down the laws dissolving the Scorpions and insist on the preservation of an independent anti-corruption unit as undertaken in the treaties to which South Africa is a party and which it has ratified.
PAUL HOFFMAN SC
26 March, 2009.
(Paper prepared for a SAIIA conference held in Cape Town)