How to really end corruption

The SA Human Rights Commission and the Office of the Public Protector (ably represented by the acting Public Protector) deserve congratulations for organising a three-day conference on human rights and corruption, which ran virtually towards the end of March, Human Rights Month.

Diverse inputs were received from the government, Chapter 9 institutions and civil society. By the end 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. The link between proper delivery of the human rights guaranteed in the Bill of Rights and the debilitating effects of grand corruption has been established.

Whether the link exists in the public imagination as well is an open question. It depends on the extent to which the values of the Constitution have been inculcated 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 a constitutional democracy.

The “how-to” questions on reform of the criminal justice administration were the most contentious. The representatives of the Chapter 9 and 10 institutions focused on good governance and promoting human rights. The UN’s Sustainable Development Goal 16, which commits the country to a good governance ethos, was invoked.

Delegates were reminded that the Constitutional Court has produced rulings that require compliance. Any reforms must be consistent with these judgments. The failed experiment of dividing anti-corruption work between the Hawks (investigations) and the National Prosecuting Authority (prosecutions) should inform decision-making.

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, specialists who are fully resourced and able to function independently.

February’s State of the Nation Address spoke 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 were also a statutory body, but that did not assist them 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 dissolved them. SA is the poorer for it.

In the Constitutional Court’s 2011 decision in the Glenister litigation, which challenged the dissolution of the Scorpions, Deputy Chief Justice Dikgang Moseneke and Judge Edwin Cameron asked “whether the Constitution imposes an obligation on the State to establish and maintain an independent body to combat corruption and organised crime” and concluded it did. They also held that “the requirement of independence has not been met” in the plan to replace The Scorpions.

The court relied on research by the Organisation for Economic Cooperation and Development, quoting the OECD: “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... Experience suggests that it is the structural and operational autonomy that is important ...”

On the vexed topic of secure tenure for corruption-busting personnel, the court was clear in its views of the Directorate for Priority Crime Investigation (the Hawks) when compared to the Scorpions, finding that “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”.

Whereas currently prosecutors do enjoy the protection of the Constitution, the Hawks investigators do not. Reform aimed at the wholehearted implementation of the binding criteria of the judgment must have due regard for security of tenure.

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.

It will not suffice, nor will it pass constitutional muster, for a mere statutory body of specialists to be established.

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.