The Government vs CASAC - More Promises or Real Change?
The conclusion of a study done by the Council for the Advancement of the Constitution (CASAC) that South Africa is in danger of becoming a dysfunctional state, because of the inadequacy of the government's response to endemic corruption has been rejected by Minister in the Presidency, Collins Chabane.In disputing the CASAC findings, Minister Chabane, who chairs the inter-ministerial anti-corruption committee, argued that the Government has made the fight against crime and corruption one of its five top priorities, and proof of its genuine commitment was South Africa's signature of "a number of international protocols compelling the country to deal with corruption".
The more important outcome of this interchange between the Government and CASAC was in this published official response to CASAC - "South Africa has never experienced any democracy until 1994 and no South African or any formation in our society can stand to claim monopoly to know more than all of us South Africans. We are all learning and building this democracy together and that includes supporting, protecting and respecting all institutions of state we have established in promotion of our constitutional democracy. We call on all South Africans to contribute to this objective"
On the face of it, this means that we can now look forward to a different style of public administration and leadership. A style in which respect for section 195 (1) (e) of the Constitution is shown. This provision requires the public administration to respond to the needs of the people, and encourage the public to participate in policymaking. This is hopefully the start of our building a truly participative constitutional democracy.
If so, it means that when the government acts in ways that ignore the learning and building processes, civil society can ask the 'hard questions' and be given the straight answers.
This is a positive change from the dark days when the government introduced legislation to disband the ruggedly independent Scorpions and replace them with the painfully hooded Hawks despite widespread public disquiet.
Notwithstanding the public participation process, Parliament ignored all the representations that made reference to the requirements of the international treaties that oblige the country to keep an independent anti-corruption agency. The legislature and executive simply went ahead and disbanded the Scorpions and with them all semblance of an independent anti-corruption capacity.
Fortunately, one citizen, Bob Glenister, felt that the Government had acted unconstitutionally and started, a campaign against the legislation. After a struggle in three different courts, it was accepted that he was right. The Constitutional Court held that the legislation establishing the Hawks is unconstitutional because the Hawks are not independent. The government is required to redraft the legislation by September 2011.
This is but a blink in time for the legislative process. SA can now rely on the new spirit of governance, foreshadowed in Chabane's announcement, that will lead to new legislation which creates a truly independent anti-corruption agency that will satisfy the need of all for probity and integrity in the fight against corruption.
Independence, in an organisational context, is a cultural developmental process which is not unlike the process suggested by the Government in their response to CASAC - but it does require some foundational 'non-negotiable' parameters.
The first of these is the tangible structural requirements of 'how' individuals need to interact with one another to get the job done. As a high level operating division of the National Prosecuting Authority (NPA), the Scorpions were created in line with legal and constitutional requirements as well as equivalent international agency models. This was a structurally independent organisation.
On the other hand, the Hawks were created at a much lower operating level as a unit within the SA Police Service, and as a result have to contend with many more organisational levels of seniority, and in addition, also having to report to a ministerial committee. This, as the majority of the Constitutional Court found, is certainly not a structurally independent organisation. The hierarchy and political leadership inhibit independent investigation.
The second 'non-negotiable' concerns the selection of 'fit and proper' operatives for the delicate task of rooting out corruption.
This is somewhat more difficult, because the rules for deciding who is 'fit and proper' deal with those difficult "people issues" of:
- qualifications - usually not too contentious,
- experience - where relevance plays a major part and
- integrity - at the risk of being in the eye of the beholder. Assuming that the risks can be minimised through logical and transparent checks and balances, this is the process to 'empower' individuals with personal authority to act within the scope of their known competencies and their position in the organisation - their structural authority.
Given that the requirements for structural and personal authority are achievable with defendable logical processes and transparency, the third non-negotiable will actually determine the effectiveness of any redefined anti-corruption agency.
This is the requirement that creates the appropriate operating environment, one giving properly appointed 'fit and proper' individuals, the freedom to act without fear, favour or prejudice. In a word their "independence" is assured, financially, structurally and at the all important personal level.
This was the concern of the majority of Constitutional Court Justices who held that operatives who had to fear some form of career sanction, for 'upsetting' someone, somewhere, could not operate independently, because of the personal risks posed by undue influence, interference and intimidation.
These considerations should also be of grave concern to all who are affected by corruption. The Court's finding is a serious indictment of all leaders, in politics and other spheres, who, after seventeen years of democracy, should be using every opportunity to build our constitutional democracy. However, if reliance can be placed on the Government's response to CASAC, this will change shortly.
The first real test of this 'promise' will be manner in which the executive and legislature respond to the requirements of the majority judgment in Glenister's case. SA could see the start of a new political will, and a civil society groundswell of demand coupled with vigilance to see that the right steps are taken to cure the cancer of corruption now rampant in South Africa.
Eighteen months is not a long time, but we do not have to reinvent the wheel. The formation of an all new Anti-Corruption Commission (ACC) as a new Chapter Nine institution is a possible solution. The ACC will have to be led by a retired judge or person of equivalent stature and independence. Its staff complement will have to be imbued with the skills, experience and integrity as well as the personal authority, that will enable them to remain at least one step ahead of the organised, well resourced, politically connected and innovative criminals who are involved in corrupt activities, especially those in high places.
The Constitutional amendment and enabling legislation for the ACC will have to be meticulously drafted to ensure accountability to Parliament (not the Executive), transparency and independence for the new corruption busters. It is only with these features that the ACC will be responsive to the need for ordinary people to be free of the debilitating effects of the scourge of corruption.
Daan Groeneveldt
Director
Institute for Accountability in Southern Africa
