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.