Mixed bless­ing

Finweek English Edition - - COVER STORY -

PAR­LIA­MENT’S CHAL­LENGE IS to find a way to al­low anti-graft in­ves­ti­ga­tors and pros­e­cu­tors to work with­out hav­ing to fear some form of ca­reer sanc­tion: for “up­set­ting” some­one, some­where, in an un­de­fined or­gan­i­sa­tional sys­tem. The Con­sti­tu­tional Court rul­ing in favour of busi­ness­man Hugh Glenis­ter de­mands Par­lia­ment re­solves that and re­con­sti­tutes the Direc­torate of Pri­or­ity Crimes In­ves­ti­ga­tion – the Scor­pi­ons – by Septem­ber next year.

That work will co­in­cide with what’s cer­tain to be a po­lit­i­cally charged pe­riod lead­ing up to the ANC’s elec­tive con­fer­ence at year-end 2012. Nev­er­the­less, the late Pro­fes­sor Kader As­mal – who re­signed as an MP in protest against the dis­band­ing of the Scor­pi­ons – ar­gued there are three likely lo­ca­tions for the anti-corruption unit: the Na­tional Prose­cut­ing Au­thor­ity, the Of­fice of the Pub­lic Pro­tec­tor and a stand-alone unit ac­count­able to cit­i­zens via rep­re­sen­ta­tives in Par­lia­ment and to the courts.

While there’s a po­lit­i­cal prob­lem in lo­cat­ing the unit in the NPA – be­cause its head, Menzi Sime­lane, is a po­lit­i­cal ap­pointee – or­gan­i­sa­tions such as the In­sti­tute for Accountability in South­ern Africa are call­ing for an all new an­ti­cor­rup­tion com­mis­sion. Such a Chap­ter 9 in­sti­tu­tion would be led by a judge or re­tired judge and would be sim­i­lar to the rel­a­tively suc­cess­ful all-in-one model used in Hong Kong and Mau­ri­tius.

How­ever, con­cen­trat­ing all anti-graft in­ves­ti­ga­tion and pros­e­cu­tion in a sin­gle agency isn’t an un­mit­i­gated bless­ing. An agency such as that runs the risk of be­com­ing the cen­tral fo­cus of the pow­er­ful and priv­i­leged it’s in­ves­ti­gat­ing. In other words, en­sur­ing two or more anti-corruption agen­cies have ca­pac­ity and in­de­pen­dence means there isn’t just one “en­emy”. But no mat­ter how an in­de­pen­dent corruption-bust­ing unit is struc­tured it has to be for­ti­fied by an in­de­pen­dent ju­di­ciary and backed by the po­lit­i­cal will to fight all graft.

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