State Capture: Security of tenure of office is key to the independence

13Apr 2021
The Guardian
State Capture: Security of tenure of office is key to the independence
  • of corruption-busters

​​​​​​​There is an emerging consensus that what is required in the battle against State Capture is an elite entity of well-trained specialists who focus entirely on corruption and its cousins, and who are able to function independently. And to prevent political interference,-

By Paul Hoffman   

-they must have security of tenure of office.

The SA Human Rights Commission and the Office of the Public Protector (ably represented by the acting Public Protector) are deserving of congratulations for organising a three-day conference on the topic of human rights and corruption which ran virtually for the last three mornings of March, which, fittingly, is Human Rights Month.

Diverse inputs were received from a variety of sources in government, the chapter 9 institutions and in civil society too. At the end of the deliberations of the conference it was apparent to all that reform of the criminal justice administration to better counter the culture of grand corruption, kleptocracy and attempted State Capture in SA is urgently needed. Without swift reforms the scourge of corruption, described by some as “a crime against humanity”, is likely to overwhelm SA and derail our constitutional project started with such high hopes and lofty aspirations in 1994.

From the various inputs given it is clear that the link between proper delivery of the human rights guaranteed to all in the Bill of Rights and the debilitating effects of grand corruption has been established in the minds of delegates to the conference.

Whether the link exists in the public imagination as well is an open question. It is one which depends on the extent to which the values of the Constitution have been inculcated since 1994 and the receptiveness of the population to the notions of dignity, freedom and the achievement of equality in a multiparty democracy under the rule of law in which governance is informed by openness, accountability and responsiveness to the needs of the people. It is fair to assume that the constitutionalists outnumber those who would prefer not to live in the type of constitutional democracy that was informed by the development of the acclaimed and widely supported National Accord of the early nineties.

The “how-to” questions around reform of the criminal justice administration occupied the most contentious parts of the deliberations of the conference. As befits their constitutional mandates, those from the chapter 9 and 10 institutions who participated put their focus on good governance and a culture of promoting human rights. The UN’s Sustainable Development Goal #16, which commits the country to a good governance ethos, was invoked and the need to fix the system to achieve that goal was stressed.

Delegates were reminded that the Constitutional Court has grappled with the issues around corruption and human rights and has produced rulings which bind the state. The judgments require proper compliance with criteria set by that court. These are not just “nice-to-have” items, they are obligatory. Any reforms contemplated must accordingly be consistent with the judgments of our highest court. Reforms that are inconsistent with the rulings are liable to be struck down for want of compliance with the judgments and the Constitution as interpreted by the judgments. The failed experiment of dividing anti-corruption work between the Hawks (investigations) and the NPA (prosecutions) should inform decision-making now needed urgently.

There is an emerging consensus that what is required is an elite entity of well-trained specialists who focus entirely on corruption and its cousins, who are fully resourced in guaranteed fashion, and, from both a structural and operational perspective, are able to function independently. Whether the new body should enjoy structural and operational security of tenure of office as an element of its independence from the executive branch of government was a hotly contested question on which there is a variety of opinion.

Sona in February speaks only of a new statutory body that reports to Parliament, not the executive. The reporting line is sound, the idea of a mere statutory body is not. The Scorpions, we need to remind ourselves, were also a statutory body created as part of the prosecuting authority. The latter has a constitutional mandate to act without fear, favour or prejudice. These fine features did not assist the Scorpions when they came under attack from the supporters of then-new president Jacob Zuma. A simple majority in Parliament created the Scorpions and a simple majority was all that was needed to dissolve them. Despite the best efforts of civil society, the loyal opposition and some imaginative litigation, the Scorpions are history and SA is the poorer for it.

Both the National Anti-Corruption Strategy (Nacs) and the Justice Department’s representative at the conference speak of a “statutory/constitutional” Nacs, or in the case of the Justice Department a “statutory or constitutional” body to counter the corrupt. The department does not yet favour a new constitutional body, but it should give serious consideration to the elements of independence required by law, particularly the “secure tenure of office” requirement. If this requirement is not properly catered for in the new body the risk of not passing constitutional muster looms large.

It is instructive to have regard to the words of the Constitutional Court on the topic. In the March 2011 majority decision in the Glenister litigation the issues with which the court was faced were summarised by Deputy Chief Justice Dikgang Moseneke and Judge Edwin Cameron with the following words:

“… Two crucial questions remain for determination. The first is whether the Constitution imposes an obligation on the State to establish and maintain an independent body to combat corruption and organised crime. And if it does, the second is whether the specialised unit which the impugned legislation has established, the DPCI [or Hawks police unit], meets the requirement of independence. In answer to the first question … we conclude unequivocally that the Constitution itself imposes that obligation on the State. To the second question, we hold, unlike the main judgment, that the requirement of independence has not been met and consequently that the impugned legislation does not pass constitutional muster.”

The court placed reliance upon the research of specialists on countering corruption in the employ of the Organisation for Economic Cooperation and Development (OECD), saying:

“The OECD report defined independence as follows: ‘Independence primarily means that the anti-corruption bodies should be shielded from undue political interference. To this end, genuine political will to fight corruption is the key prerequisite. Such political will must be embedded in a comprehensive anti-corruption strategy. The level of independence can vary according to specific needs and conditions. Experience suggests that it is the structural and operational autonomy that is important, along with a clear legal basis and mandate for a special body, department or unit. This is particularly important for law enforcement bodies. Transparent procedures for appointment and removal of the director together with proper human resources management and internal controls are important elements to prevent undue interference’.”

It will not suffice, nor will it pass constitutional muster, for a mere statutory body of specialists to be established. That will put the country back where it was before the Scorpions were so ignominiously dissolved despite the opposition of the far-sighted Professor Asmal and the opposition parties in Parliament. It will not guarantee secure tenure of office and the new body will be vulnerable to the same fate as that suffered by the Scorpions.

On the vexed topic of secure tenure of office for corruption-busting personnel the court was clear in its views of the Hawks when compared to the Scorpions or DSO (Directorate of Special Operations):

“In short, the members of the new Directorate enjoy no specially entrenched employment security. They, like other members of the SAPS, have employment rights under the SAPS Act and under other labour and employment law statutes, but no special provisions secure their employment. While it is not to be assumed, and we do not assume, that powers under the SAPS Act will be abused, at the very least the lack of specially entrenched employment security is not calculated to instil confidence in the members of the DPCI that they can carry out their investigations vigorously and fearlessly. In our view, adequate independence requires special measures entrenching their employment security to enable them to carry out their duties vigorously.”

This discussion is taken further in paragraph 225 of the majority judgment:

“The contrast with the position under the now-defunct DSO [Scorpions] is signal. Previously, under the NPA Act, the DSO was established in the office of the NDPP, and fell within the NPA. In terms of s 179(1) of the Constitution, the NDPP is appointed by the President as head of the national executive. The head of the DSO was a deputy NDPP, assigned from the ranks of deputy NDPPs by the NDPP, and reporting to the NDPP. The NPA Act provides that a deputy NDPP may be removed from office only by the president, on grounds of misconduct, continued ill-health or incapacity, or if he or she is no longer a fit and proper person to hold the office. And Parliament holds a veto over the removal of a deputy NDPP. The reason for the removal, and the representations of the deputy NDPP, must be communicated to Parliament, which may resolve to restore the deputy NDPP to office.”

In his analysis of this judgment, the late Professor Kader Asmal concluded that there are only three proper locations for the new body of corruption busters: The NPA, the OPP or a new chapter 9 institution. He gave his views in 2011 within a month of the delivery of the judgment.

While currently prosecutors do enjoy the protection of the Constitution, the Hawks investigators do not. A reform aimed at the wholehearted implementation of the binding criteria of the judgment must have due regard for security of tenure. Neither the OPP nor the NPA are currently suitable locations for the new body; both have suffered the ravages of State Capture and will take years to recover to the level at which they functioned prior to the “wasted Zuma years”.

The rulings set out above were confirmed in the 2014 round of the Glenister litigation in which the Helen Suzman Foundation participated as a litigant. Here is how Chief Justice Mogoeng Mogoeng opened the majority judgment:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The best practice solution to the problem is to establish a stand-alone new chapter 9 institution with a mandate to investigate and prosecute corruption. This step will involve relieving the NPA, SAPS and OPP of various anti-corruption functions that they currently are burdened with in terms of various statutes and the Constitution itself. This accords with the criterion of specialisation.

The specialised attention to corruption that is required cannot be given, adequately, efficiently and effectively by institutions whose mandate is far wider than countering corruption.

It will not suffice, nor will it pass constitutional muster, for a mere statutory body of specialists to be established. That will put the country back where it was before the Scorpions were so ignominiously dissolved despite the opposition of the far-sighted Professor Asmal and the opposition parties in Parliament. It will not guarantee secure tenure of office and the new body will be vulnerable to the same fate as that suffered by the Scorpions.

We have to learn from the mistakes made in the past, not repeat them. Vusi Pikoli, a former National Director of Public Prosecutions, has gone so far as to suggest recently that executive interference with the new body should be criminalised. That would also be an effective way of protecting its necessary independence.

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