The Chief Parliamentary Legal Adviser has erred

5 December 2021

This week the Constitutional Review Committee of the National Assembly will, according to its secretariat, consider Accountability Now’s advocacy of a new Chapter Nine Institution mandated to prevent, combat, investigate and prosecute serious corruption. This event will not be its first debate, and is unlikely to be its last, on the topic.

Parliament’s chief legal adviser has provided the committee with a memorandum in which the notion is poo-pooed with the following words:

Both NPA and HAWKS are constitutionally and legislatively designed to be independent bodies. Having regard to the Constitution, NPA Act, SAPS Act and the recent development of an establishment of the Investigating Directorate, it would appear to us that the submission by Accountability Now has been overtaken by events.

This being the case, we are of the view that the concerns raised by Accountability Now are already addressed and legislated for. The creation of another separate body would be a duplication of functions with concomitant financial consequences. It is further our view that if there are gaps in the existing legislation regulating these institutions, such gaps must be remedied in that legislation not the Constitution.

Notwithstanding the above and in the interest of completeness we state that from a policy point of view it is always open to the Committee to consider the proposal if it so inclined.

Let’s consider the relevant developments:

The memo is dated 27 November 2020, some three months after the National Executive of the ANC resolved to instruct cabinet urgently to establish a stand-alone, permanent and independent new body to “deal with” corruption. The ANC resolution approximates what Accountability Now has been proposing to parliament since 2012.

Back in March 2019, the president had found the idea of a Chapter Nine Integrity Commission mandated to investigate and prosecute corruption a “refreshing” notion and undertook to the IFP Chief Whip, and to parliament, that he would “mull over” the idea. Clearly, he has not done so either with or to the knowledge of the chief legal adviser.

In February 2021, during the SONA, the president announced that:

“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to parliament.”

The presidency has, in November 2021, called for nominations for the members of that advisory council.

Meanwhile, in July 2021, the DA announced its intention to pilot a private members bill through parliament in which it will seek to transfer the corruption investigation portion of the mandate of the Hawks to a new Chapter Nine Institution.

In August 2021 Accountability Now presented detailed suggestions regarding the constitutional amendment and the enabling legislation needed to put its more wide-ranging proposal into practice. Accountability Now wants the prosecution of serious corruption to be excised from the mandate of the NPA. Saboteurs lurk in the NPA and undermine efforts to prosecute serious corruption. These submissions were made to parliament, the presidency and the national prosecuting authority. The suggestions by Accountability Now have been made public and have been well received in legal circles according to Mark Heywood. He wrote in Maverick Citizen on 21 September 2021:

“Accountability Now argues that ‘Only a specialised and well-trained Chapter 9 Integrity Commission, that is independent, well-resourced and secure in its tenure of office, will have the power to bring the corrupt to justice.’ Several judges and senior lawyers I spoke to, who worry about the fatal weaknesses in current institutions, agreed with this approach.

In a clever act of advocacy, Accountability Now have already developed and presented an example of a draft Bill to set up an Integrity Commission to Parliament, which Parliament has studiously ignored — violating the constitutional spirit of public participation.”

In November 2021, Shamila Batohi, National Director of Public Prosecutions, made an appeal to parliament to free the NPA from the shackles of the “final responsibility” of the minister of justice, whose director general is also the accounting officer of the NPA. Her wish is that the NPA be better empowered to function “without fear, favour or prejudice” with greater independence than is currently the case under the provisions of section 179 of the Constitution. Adv Batohi’s plea has been squarely addressed in the drafts presented to parliament by Accountability Now, even before she made it!

In early December 2021 it was announced that the head of the Investigating Directorate of the NPA, Hermione Cronje, has resigned from her post effective 1 March 2022 for “personal reasons” City Press speculates” on 5 December that:

“”Corrupt officials still sitting in key positions in the NPA and friction with the NDPP, Shamila Batohi, are said to be behind the sudden resignation…”

This chronology of salient events suggests that parliament’s chief legal adviser has been overtaken by events, some of which occurred even before, and some after, her opinion was signed.

It may be prudent to revise the conclusions in the memorandum with closer regard to the facts including those that have transpired since it was prepared. The low and ever dwindling work rate of the Hawks on corruption matters is long-standing and lamentable.

Consider these statistics given in reply to a parliamentary question back in 2015: arrests by the Hawks declined from 14,793 in 2010/11 to 5847 in 2015. The trend continues.

The inability of the NPA to get a “big fish” into the dock in a criminal court is equally notorious. After Adv Batohi was appointed NDPP the question was asked: “Can she revive a dying NPA?” it is still a live question now that Adv Cronje has resigned her post.

See: https://accountabilitynow.org.za/can-shamila-batohi-revive-a-dying-npa/.

The urgency of the situation regarding rampant grand corruption in SA is common cause between the ANC leadership, the courts and Accountability Now. Consider the words of the Chief Justice in the last Glenister case, words overlooked in the chief legal adviser’s memo:

“… corruption is rife in this country and 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 the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The reference by the learned Chief Justice to being “in one accord” is a reference to the entire court sitting in Glenister III. 

The slow pace at which government is moving on reform is unfortunate and should be accelerated in the interests of avoiding failure as a state. New investments that create jobs will not materialise until business confidence increases and trust is restored in the ability of government to uphold the rule of law.

The proposed, but not yet appointed, advisory council is faced with the binding decisions of the Constitutional Court. It can only advise on how best to implement those decisions and does not need three years to do so.

It is the task and the duty of parliament to consider the drafts made available by Accountability Now and to act diligently and without delay in the exercise of its oversight of the criminal justice administration. There is indubitably a need for urgent reform. The system must be better equipped to counter serious corruption effectively and efficiently, like the Scorpions used to do. That was before Jacob Zuma scuppered them, for reasons now obvious to all.

The need for a constitutional amendment is at least in part due to the “secure tenure of office” that is required, in binding terms, by the Constitutional Court. Had the Scorpions been a Chapter Nine Institution, not a mere creature of statute, they would still exist today. A two thirds majority is required to close such an institution, not the simple majority needed to repeal and ordinary statute such as those which created both the Scorpions and the Hawks. The danger of losing one’s corruption-busting job, like the Scorpions did for doing too well against crooked politicians, is real and present to all Hawks. They have no constitutional protection of the kind afforded to the Chapter Nine Institutions, despite what the learned chief legal adviser suggests, they are not a constitutionally recognised or protected body.

Today, no one is suggesting that the Hawks are up to the task of investigating serious corruption. The specialised skills, the highly trained personnel and the guaranteed resourcing are all conspicuously absent. As a mere police unit, the Hawks do not enjoy sufficiently secure tenure of office as General Anwa Dramat has learned to his cost when he was forced out of office as the first commander of the Hawks. The reporting lines to the chief of police and his minister ensure that the necessary independence is more illusory than real. The chief of police is the accounting officer of the Hawks.

The “duplication of functions” objection to reform is fallacious. The ID would be closed down. Its corruption mandate must be excised from the Hawks to transfer the investigation and prosecution of serious corruption to the new body housed in Chapter Nine. Effectiveness and efficiency would be unhanced in this way. The other priority crimes that are the focus of the Hawks, and petty corruption, would still keep them busy under the new dispensation, without any duplication whatsoever.

The constitutionality of the ID is in any event questionable as it serves, temporarily (not permanently) at the pleasure of the president, hardly conducive to independence and very much open to executive influence and interference. It is preferable by far to have the protection of the architecture of Chapter Nine of the Constitution and a reporting line to parliament, not the executive.

The “concomitant financial consequences” to which the chief legal adviser refers in her memo are likely to be positive, not negative. The loot of state capture is estimated to be at least one trillion rand. Efficient seizure and then forfeiture of loot would see the state benefit financially from the services of the new entity.

When the NDPP engages with the media on Monday 6 December and with the parliamentarians on Wednesday 8 December (the latter engagement includes the minister of justice) it is to be hoped that the position of the ANC as announced in August 2020 will be clarified and the cabinet’s manifest lack of urgency in dealing with what is pellucidly a crisis will be explained by the minister. Hopefully, the NDPP will react positively to the proposals on independence of the NPA as suggested in the Accountability Now constitutional amendment draft.

The gaps in the existing dispensation centre around the lack of independence and limping security of tenure of office of both the Hawks and the ID. They can only be addressed via a constitutional amendment, if the amendment is to be effective. The fate of the Scorpions beckons if ordinary legislation is all that emerges from the process currently under way. That is the last outcome SA needs now. What is urgently needed is the establishment of the Chapter Nine Integrity Commission that has been so long in the making.

Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.