South Africa needs an integrity commission

by Advocate Paul Hoffman

Commentators and the twitterati are abuzz, describing the symptoms of the war of attrition at present, in progress in and between the centres of power in the South African body politic. General anxiety in the land has spawned local use of the hashtag #Where do we go from here? Martin Luther King used the phrase as the title of a book which, appropriately so, had the subtitle, Chaos or Community?

Allegations of “state capture” are under investigation by the Office of the Public Protector at the request of the Jesuits and others. Finance Minister Pravin Gordhan is under attack by the Hawks, the apex body of corruption busters in South Africa. The key state-owned enterprises have been shovelled under the wing of President Zuma – Is this putting the fox in charge of the hen house, the commentariat cries. Even the usually malleable electorate has expressed some displeasure. Literally thousands of former African National Congress (ANC) local government councillors are without a job and wondering what to do next in the wake of electoral reverses on 3 August 2016. They now comprise a well-connected lobby for change within the ANC. This contribution to the national conversation is for them too.

The national leadership of the ANC has pondered long and hard, with or without the assistance of the hashtag. Gwede Mantashe owns up to assuming “collective responsibility” and calls for “introspection”. Joel Netshitenzhe, a veteran of the Mbeki inner circle and still on the National Executive Committee of the ANC, has a long list of what he calls “the sins of incumbency”. These sins range from patronage and tenderpreneurism through the full range of cronyism, nepotism and clientele-ism. Comprador capitalists, including shy “cash only” donors to political parties in power, do not escape his analysis. All too often, he remarks, some of the cash is kept by the cadres to whom it is delivered in brown paper bags and only part reaches party coffers.

A major cause of much of the trouble currently besetting South Africa is not receiving sufficient attention, probably because the cause is, to use BJ Vorster’s tired phrase, “too ghastly to contemplate” let alone address in a constructive and patriotic fashion. The nation proceeds at its peril, towards an economic and political precipice of pandemic proportions, if it continues to stick its head in the sand and to pretend that the ship of state will somehow right itself automatically and sail serenely away from the precipice towards which it is currently hurtling, downgrade by downgrade, deficit by deficit. The state won’t self-correct without targeted interventions. It is powerless to do so. All people of goodwill need to take charge of their destiny.

Corruption of the most destructive kind

A major cause of the symptoms summarised above is corruption of the most widespread and corrosive kind. The moral compass of the leadership of the ANC needs to be reset. Mantashe knows this: he speaks of the need to deal with corruption and for the ANC to be seen to be dealing with corruption. Gauteng ANC boss Paul Mashatile calls for responsiveness to the people crying out against corruption, and the South African Communist Party has a lot to say about how serious the need to address corruption has become.

But how to get serious about taking on the corrupt is the unanswered question. Much more than the internal integrity committee of the ANC is required to address the issue. This is so because it is not only ANC members who are involved in corruption. Indeed, corruption is far more endemic worldwide than that, but it is also because corruption is a crime way beyond the jurisdiction of any private body to tackle effectively.

The culture of entitlement, what Kenyans call the “our turn to eat” syndrome, and the impunity of those clearly behaving corruptly are colluding to bring the country to grief. The Constitutional Court warned, as long ago as March 2011, that:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

More recently, Chief Justice Mogoeng Mogoeng wrote in November 2014, as he introduced the judgment in the final round of the Glenister/Helen Suzman Foundation cases:

[1] 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.

[2] We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. And this in a way is the issue that lies at the heart of this matter. Does the South African Police Service Act (SAPS Act), as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?

Hawks neither effective nor independent enough

The 20/20 vision of hindsight, based upon the track record and unfolding of circumstances concerning the Hawks since 2014, reveals that they have not emerged, despite all the legislature’s and the judiciary’s panel-beating of their governing laws, as an effective and adequately independent anti-corruption agency. There is litigation pending to remove the grossly unsuitable head of the Hawks from office and much more repetitious litigation to keep the KwaZulu-Natal Hawks boss, General Johan Booysen, at his desk. The latter’s disciplinary troubles appear to be based upon his willingness to investigate the politically well connected, including his provincial commissioner of police and friends of the Zuma family.

The former (and first) head of the Hawks, General Anwa Dramat, is facing criminal charges of kidnapping relating to the rendition of Zimbabweans to Zimbabwe. With prior knowledge of these allegations, the Cabinet allowed him to be paid a wonderful golden handshake to resign from his post. This exit occurred after Dramat unsuccessfully tried to get his hands on the Nkandla fraud, theft and corruption dockets which were kept from his unit by SAPS top management deployees before the November 2014 judgment left them with no excuse not to involve the Hawks in that investigation.

Needless to say, no progress has been made on the criminal complaints concerning Nkandla, based on the Public Protector’s Secure in Comfort report. The earliest of these was laid by Accountability Now, a little NGO with the attitude of a Jack Russell terrier, which has been described as a thorn in the flesh of the corrupt due to its work on the arms deals, the constitutionality of the Hawks and for helping to break the bread manufacturers’ cartel. The complaint was made in Cape Town in December 2013. In March 2014 further similar complaints were laid by the DA in Nkandla itself and by the EFF in Pretoria. All bases are covered, but no investigation has, to the knowledge of the complainants, been undertaken.

The morale of the Hawks is low. There are hundreds of unfilled vacancies within their organisation and its arrest rate has fallen steeply in recent years. Buildings occupied by the Hawks are not fit for habitation. These features speak of its lack of effectiveness as the premier corruption busting unit in the land.

Archbishop Emeritus Desmond Tutu sums up the current situation best when he says:

[Today] our world faces unprecedented levels of immorality, inequity, intolerance, insecurity, prejudice, greed, corruption – and impunity.

Righteous people are asking: What do we do to turn back the tide of hatred, corruption and destruction? To whom do we turn for peace and security, for morality, and environmental and social sustainability?

Scorpions on steroids – a new Chapter Nine institution?

Strong institutions are needed to address the situation. In South Africa it is constitutionally feasible to create a new Chapter Nine institution with preventative, investigative, prosecutorial and educative powers to properly combat corruption wherever and whenever it occurs. Scorpions on steroids are possible. The Scorpions themselves would have survived had they been a creation of the Constitution rather than of mere legislation which could be, and was, repealed by a simple majority in Parliament despite stiff opposition from the DA and civil society organisations.

Combining the efforts of a constitutional integrity commission (often called an anti-corruption commission elsewhere in Africa) with the public auditing functions of the Auditor-General and the investigations of public sector maladministration by the Public Protector (who has no jurisdiction over the private sector) could be a winning formula if the political will to pass the laws necessary can be mustered. A small but vital amendment to the Constitution itself is necessary in order to properly guard against political interference and influence, which currently so bedevils the efforts of the Hawks, in the future.

An integrity commission with properly trained independent-minded personnel, who enjoy guaranteed resourcing and security of tenure of office, could specialise in tackling all aspects of serious corruption without political influence or interference in much the same way as the Public Protector, also, like the Auditor-General, a Chapter Nine institution formed to support constitutional democracy, has functioned in relation to maladministration of the state for the last seven years. The Hawks could be retained to deal with other “priority crimes” such as human trafficking, poaching and illicit drug dealing which are already in their inbox.

An integrity commission with the clout to take the fight to the corrupt ought not to be confused with commissions of inquiry. The latter serve as fact gathering bodies to advise and possibly make recommendations to the executive arm of government in relation to a usually complex factual matrix (like the arms deals, the Marikana massacres and the costs of higher education). An integrity commission under the Constitution has far greater powers than that and may frequently find itself investigating, rather than advising, the executive. As a Chapter Nine body it would be accountable to report to Parliament, not the executive. This is a salutary feature that supports its independence from the executive branch.

Our National Development Plan (NDP), the vision for the country until 2030, is the means according to which the nation is intent upon making its future work. The implementation of the promises in the Bill of Rights and service delivery in general, are to be effected in accordance with NDP. Chapter fourteen of the NDP is called “Fighting Corruption” and is instructive. It was clearly compiled by the National Planning Commission before both Constitutional Court judgments quoted from above were written because it does not refer to either of them. Obviously, the findings of that court enunciate our supreme law and are binding on government.

All political parties represented in Parliament except the EFF (which speaks for under 7% of those who voted in 2014) support the NDP, but none of them has, so far, done enough to create an effective anti-corruption entity which complies with the criteria (specialised, trained, independent, resourced and secure – or STIRS as the acronym goes) set in stone by our highest court during the course of the three visits Johannesburg businessman Bob Glenister has made to the Constitutional Court on his mission aimed at securing human rights and proper compliance with international obligations through the creation and maintenance of adequately independent anti-corruption machinery of state.

Funding meant for development is diverted

In a sense, corruption in the public sector is theft from the poor. The diversion of resources at a rate in excess of R30-billion every year is well established in the public procurement system through the Auditor-General monitoring and audits. Funding meant for addressing poverty, inequality and joblessness finds its way to the back pockets of those involved in corrupt activities. This scourge retards the uplifting of the disadvantaged, it exacerbates inequality and it prevents job creation by scaring off both foreign and local investors. It impoverishes the public purse.

Corruption is a cancer that needs to be excised at all levels but particularly at the highest levels in society by an entity from the top drawer of the criminal justice administration. The Hawks are nowhere near that top drawer. The public’s weariness with the levels of corruption tolerated by the ANC is certainly a factor in the reverses it has suffered at the polls. Paul Mashatile has bravely conceded that this is so.

On 15 April 2016, Accountability Now was given the privilege of making a submission to the Constitutional Review Committee of the National Assembly on the topic of creating an integrity commission.

The committee is deliberating on this submission and will continue to do so in public in September. Those deliberations will naturally be informed by the findings of our highest court, the suggestions of NDP and the domestic adoption of the UN Sustainable Development Goals one of which (number 16) can be summarised as requiring governments to “… build effective, accountable and inclusive institutions at all levels”.

Is there political will for an integrity commission?

Archbishop Tutu has given the idea of an integrity commission his blessing. The idea is right, its time is now. Let’s nickname it: “The Eagles” to encourage it to fly higher, see further and go after bigger prey than the Hawks do.

The tricky bit is creating the necessary political will in support of an integrity commission: this can be done through the participation of active citizens, responsible politicians (including unemployed former councillors) and civil society organisations. There is a need to build the universal awareness in society that there is no better alternative for fighting off the corrupt which is as viable and sustainable as an integrity commission.

The answer to the frequently posed question: “Where are we going?” is that the hard-working members of the Constitutional Review Committee will soon make recommendations which they ought to base upon the best interests of the country, the law as expatiated in the Glenister cases, the implementation of the NDP and the honouring of UN Sustainable Development Goal 16 as well as the enforcement of the international treaty obligations assumed by South Africa over the years since liberation. These obligations require the creation and maintaining of adequately independent anti-corruption machinery of state. The onerous obligations have been assumed in order to make South Africa a welcome member of the family of nations and to enable South Africa to take its proper place in the world as a law abiding nation that respects the rule of law. The sort of nation that attracts direct foreign investment and gives confidence to local job creators.

Properly advised, the committee will recommend the formation of an integrity commission under chapter nine of the Constitution. If it does not, it will be necessary to give consideration to revisiting the Constitutional Court in order to render the position in relation to combating corruption constitutionally, legally and internationally compliant in South Africa. The many and various failures of the Hawks, their vulnerability to interference and their under-resourced condition both as regards infrastructure and staff would feature in that litigation.

With an integrity commission or similar body to tackle corruption, the nation will be enabled to take the high road to the future; without it, that precipice beckons. And yes, no one is above the law; Number One is certainly not above the law.

• Paul Hoffman SC is a director of Accountability Now