Pledging fealty to the rule of law and the Constitution

Douglas Gibson is a person of some gravitas whose views are deserving of careful consideration. He is our former ambassador to Thailand, a retired politician from the ranks of the Democratic Alliance who rose to the rank of Chief Whip of the official opposition in the National Assembly and he is also qualified attorney. Gibson has issued a clarion call for:

“… a pledge now to restore and strengthen the rule of law under the coalition government that will succeed the ANC”. He refers to “Project 2019” as “the combined effort by opposition parties to rid South Africa of the ANC government.”  

The purpose of this proposed pledge is spelt out by Gibson in the following general terms:

“It should pledge equal justice for all. It should promise to ensure the justice system will investigate criminal conduct by all politicians and all civil servants, ANC and others, as well as by directors of state owned enterprises. Where there is a decent case, prosecution must follow so that the guilty are held fully to account and punished for the millions, or billions, they have stolen from ordinary South Africans.”

These are noble sentiments and deserving of every effort to see them translated into a daily reality so sorely missing from the current dysfunctional criminal justice administration in SA.

Hardly was the ink dry on Gibson’s call when the Constitutional Court delivered a further judgment in the on-going SASSA/CPS saga in which the alleged misconduct of the Minister of Social Development, Bathabile Dlamini, has come under judicial scrutiny. In that judgment the unanimous court held that:

“Accountability and responsiveness are founding values of our democracy.  All organs of state must provide effective and accountable government. The basic values and principles governing public administration include: the promotion and maintenance of a high standard of professional ethics; the promotion of efficient, economic and effective use of resources; public administration must be development-orientated; people’s needs must be responded to; public administration must be accountable; and transparency must be fostered by providing the public with timely, accessible and accurate information. Cabinet members are responsible for the powers and functions of the executive assigned to them by the President and they must act in accordance with the Constitution. All constitutional obligations must be performed diligently and without delay.”

These judicial pronouncements are, quite serendipitously, flesh on the bones of the call made by Gibson. There is no good reason for delaying until 2019 as far as public servants and employees of state owned enterprises are concerned. Pressure should be brought to bear to include, in the letter of appointment of every person employed in these sectors, a pledge of fealty to the constitutional values that ought to, but all too often do not, inform their working ethos. Their pledge could be along the following lines:

“We, the public servants and state owned enterprises employees of the Republic of South Africa, acknowledging that it is through our work that the state is enabled to and must respect, protect, promote and fulfil the human rights guaranteed to all in the Bill of Rights, proudly pledge to the nation and to all who inhabit and visit our Republic that:

1. We will promote and maintain the highest standards of professionalism and ethics in all we do in our official capacity, with ubuntu and bato pele as our ever present watchwords. [ C 195 read with policy and the spirit of the Constitution (C)]

2. We will strive without end for the most efficient, economical and effective use of resources, including human resources, in our places of work. [C195]

3. We will at all times remain development oriented in our work in the public administration. [C 195]

4. We will act impartially, fairly, equitably and without bias in our provision of services to the people in South Africa, forever showing responsiveness to their needs as communicated to us through the public participation processes in place. [C 195 read with C 33]

5. We will act accountably, by always explaining our actions reasonably and by justifying our decisions properly. [C 195 and C 1]

6. We will, within the limits of the law, provide the public with timely, accessible and accurate information in the interests of transparency in all we do. [C 195 read with C 1 and C 32]

7. We will cultivate good human resource management and career development practices so that human potential is maximised, on the basis that the public administration remains broadly representative of the South African people. [ C 195]

8. We will respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. [C 7(2)]

9. We will at all times uphold the foundational values of the Republic as they apply to human dignity, equality and freedom; the advancement of non-racialism and non-sexism; the supremacy of the Constitution and the rule of law; responsiveness to peoples’ needs and openness in the public administration. [ C 1]

10.  We will, in our loyal execution of the lawful policies of the government of the day, be forever vigilant to ensure that we act in a manner consistent with the Constitution, its values, tenets and principles. [ C 197 read with C 2] We will, in particular, procure goods and services in accordance with a system that is fair, equitable, competitive, transparent and cost-effective [ C 217 ] and perform our obligations diligently and without delay [ C 237 ]

In offering this pledge, we affirm our belief that South Africa belongs to all who live in it, united in our diversity. We further affirm that we are working ceaselessly to build our multi-party, democratic and open society in accordance with the rule of law, so as to reflect the resolve of the nation to live in peace and harmony, to be free from fear and want and to seek a better life, thus earning its rightful place for South Africa in the family of nations. [Preamble to the Constitution (C) read with C 1 and C 198]”

Using this pledge as the basic building block for constitutionally compliant conduct by those who are paid out of the public purse is a necessary first step toward achieving the noble intent behind Gibson’s call for a pledge by opposition parties involved in what he calls “Project 2019”.

However, the substance of the pledge that Gibson has called for from political parties requires their commitment to creating machinery of state that is adequate to the task of preventing, combating, investigating and prosecuting corruption. Without machinery of this kind, delivery on the substance of the pledge will remain a pipe-dream.

The courts have long held that an effective and autonomous anti-corruption entity must comply with the STIRS criteria first laid down by the Constitutional Court in March 2011 in the second case brought by Bob Glenister that it heard. This STIRS acronym sets out the qualities that are expected of a successful anti-corruption entity. Specialised and well trained staffers in an environment which is structurally and operationally independent of executive control are needed if the Gibson-inspired pledge is to mean anything substantive. The anti-corruption entity should be properly resourced and its key staff should enjoy security of tenure of office.

The Scorpions unit of the NPA, disbanded after the ANC urgently resolved in December 2007 to protect its members and their friends from its unwanted attention, was such an entity, save that its security of tenure of office was dependent upon maintaining the support of a simple majority in parliament. This level of protection the Scorpions were unable to sustain, while also simultaneously dealing responsively with the incipient capture of the state of which Gibson, and many others, now complain.

Accountability Now has long argued that the best practice solution to the task of creating STIRS compliant anti-corruption machinery of state is the establishment of an Integrity Commission as a new Chapter Nine Institution which supplements the work of the Auditor General, whose audits frequently uncover wrongdoing he is unable to address, the Public Protector, whose staff are geared to dealing with maladministration rather than corruption and the police, who lack the specialised skills for effective anti-corruption work.

It will be necessary to garner the support of 66% of the members of parliament to attain the best practice outcome because a constitutional amendment is involved in the creation of an Integrity Commission. If this is politically impossible, then sub-optimal solutions will have to be considered.

It is clear that the Hawks have not been a success. Gibson’s proposed pledge would not be necessary if the Hawks were STIRS compliant. They are not. Their work-rate and success-rate have both dwindled alarmingly over the years. Worse still, their involvement in the persecution of Pravin Gordhan and others strongly suggests that they have been captured by those who have no regard for the rule of law but are more intent upon perfecting the silent coup that academics and clergy have uncovered in the course of their work. As a unit within the police, the Hawks do not, and cannot, command the levels of structural and operational independence that are required to deal successfully with the corrupt in our midst, particularly those in high places and those who enjoy the protection of the powerful.

There is good reason for all politicians at present serving the public in parliament to get behind Gibson’s call for restoration of the rule of law. It is the right thing to do. The machinery needed to make the call a success has already been described by the courts in binding fashion. The political will to come up with a STIRS compliant entity that is able to conquer corruption has so far been lacking. But, there are signs present which indicate that members of parliament, especially those who take their oath of office seriously and seek to be accountable and responsive, are becoming sensitised to the need for serious reform of the Hawks. The Constitutional Review Committee of the National Assembly has under review proposed legislation and a draft constitutional amendment placed before it by Accountability Now for consideration on the road to the establishment of an Integrity Commission. The National Anti-Corruption Strategy does not yet critically consider an Integrity Commission, but those driving it have been asked to do so.

Gibson’s call is timely and wise. It ought to be acted on, not only by the opposition coalition he envisages, but by all in politics, in the public sector and indeed in society in general – those who value the rule of law as the cornerstone of a sustainable future.

The rule of law and the Constitution are supreme in terms of section 1 of the Constitution itself. Getting the reality to match the constitutional framework is the task of all people of goodwill in the country. The failure of our constitutional project can be avoided if all criminal elements in our midst can be brought to book.

Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt”