Submission to the Justice Portfolio Committee by Accountability Now
26 September 2023
In re: The NPA Act Amendment Bill introducing the Investigating Directorate Against Corruption (the IDAC Bill)
Introduction
Accountability Now welcomes the opportunity to make this submission. The IDAC Bill is the product of the work of the ministry of justice on the need to radically reform the capacity of the criminal justice system so as to capacitate it to be compliant with the decisions of the courts in the Glenister litigation and to render it compliant with the principles and values of the Constitution as set forth in section 195(1) and in particular section 195(1)(b) of the Constitution which envisages efficiency, effectiveness and economy as the hallmarks applicable. The reform is urgently required; the bill is not that reform.
Brief history
Accountability Now lent institutional and legal support to the Glenister litigation which endured from 2008 to 2014 and involved three appeals to the Constitutional Court. We have campaigned for the introduction of a new Chapter Nine anti-corruption body since 2012, when we made submissions to the Joint Committee set up by the National Assembly, and chaired by the current Minister of Transport, to effect compliance with the criteria set out in binding terms in the majority judgment of the Constitutional Court in Glenister 2. By tinkering with the executive’s draft that committee tried to make a silk purse out of a sow’s ear and failed. It should have rejected the bill presented in 2012 just as the IDAC Bill should be rejected now.
Our campaign for the Chapter Nine entity has been refined in a more recent submission to the Constitutional Review Committee of the National Assembly made on 17 March 2023 and available here: https://accountabilitynow.org.za/?s=submission+to+the+CRC.
After the demise of the Scorpions in 2009, an attempt was made by government to separate out the investigation and prosecution of serious corruption after an urgent resolution of the ANC was taken at its December 2007 Polokwane conference to dissolve the DSO or Scorpions as they were called. A priority crimes unit in SAPS was set up to take over the investigation of serious corruption from the DSO, a unit in the NPA until 2009, while the NPA retained the role of prosecuting dockets brought to it by this new body, the Hawks, or Directorate of Priority Crime Investigation.
The Hawks are currently in their third incarnation after features of the legislation put in place to effect the separation of functions have been struck down as unconstitutional. Unconstitutionality was determined twice: Firstly, in Glenister 2 for want of compliance with the criteria laid down by the court, the main features of which are now known as the STIRS criteria (specialised, trained, independent, resourced and secure in tenure of office). Secondly, the remedial legislation passed in 2012 was partially struck down in the judgment of the Constitutional Court in Glenister 3, when the court itself effected the amendments it required to render the structure and operations of the Hawks constitutionally compliant, at least in legal theory, but, as it turns out, not in practice.
Glenister foretold, in the case he presented in Glenister 3, that this reform would not work and pointed out that the structure and functioning of the SAPS is such that it is incapable of complying with the criteria set forth in the majority judgment in Glenister 2, penned by Moseneke DCJ and Cameron J. Using the reports of experts, Glenister also highlighted the pervasive corruption in SAPS which renders it unsuitable as a corruption investigator.
In Glenister 3, the majority judges were not prepared to entertain Glenister’s arguments and struck out the evidence in support of them on the basis that it constituted “odious political posturing” on the part of Glenister. The evidence in question, when revisited today, reads like a summary of the evidence and findings in the Zondo Commission of Inquiry into State Capture. Glenister has, over time, been proved right in contending, as he did in 2012, that the SAPS in not cut out to be the appropriate investigative body and cannot function as one. The thrust of the IDAC Bill makes this common cause.
The provisions of the IDAC Bill now under scrutiny bear mute testimony to the fact that the executive has now, somewhat belatedly, conceded that the SAPS is the wrong location for a body tasked with the investigation of serious corruption. The bill seeks to relocate investigations of serious corruption in the new unit envisaged for the NPA, a formalisation of the existing ID, which was established by presidential proclamation in 2019 as a measure to address the ineffectiveness and inefficiency of the SAPS as investigators of serious corruption. The structure and functioning of IDAC as envisaged in the Bill is indistinguishable from that of the Scorpions. The fate of the Scorpions awaits IDAC.
The ID has not been a success. It has fewer than one hundred dockets in hand and has not secured the conviction of a single “big fish” corrupt person or entity in its entire existence. It is lacking in the necessary skills, training, resources and also does not enjoy secure tenure of office as it serves at the pleasure of the president, which undermines its independence. It lacks the capacity to operate according to the tenets of the Glenister criteria and of section 195(1) of the Constitution. See: https://accountabilitynow.org.za/?s=Poplak.
The IDAC Bill should address these shortcomings not only as a matter of constitutional principle but also because the rule of law requires that the STIRS criteria set up by the courts be properly implemented in the legislation passed to ensure that there is compliance with the judgments that bind both government and the NPA. Unfortunately the IDAC Bill does not do so in any way, shape or form.
The mischief which the IDAC Bill seeks to address.
It is the duty of the National Assembly in exercising its legislative power to do so in accordance with the terms of the provisions of section 55 of the Constitution. When a bill is unconstitutional, it is incumbent upon the National Assembly to reject it and instead initiate or prepare legislation that is capable of passing constitutional muster. The oversight function of the National Assembly also requires that it maintain oversight of the national executive authority in the implementation of existing legislation such as that which gave birth to the Hawks. Proper oversight is required for the IDAC Bill.
The mischief which the IDAC Bill seeks to address is the long festering inability of the Hawks/NPA configuration that emerged from the legislation and decisions in the Glenister cases to do what the law requires of them by bringing to bear the necessary independence of function to effectively and efficiently counter serious corruption via expert investigations and successful prosecutions. Both the international treaty obligations of the state and its duty to respect, protect, promote and fulfil human rights make it the duty of the National Assembly to be particularly strict about compliance with Section 55 of the Constitution in its scrutiny of the IDAC Bill, which it should reject out of hand by the proper application of the relevant principles and by fealty to the oaths of office of parliamentarians.
The annual reports of the Hawks and NPA bear testimony to the failure of the current system to work as required. The report of the Zondo Commission is to the same effect. The Chief Justice is of the opinion that “an army of prosecutors” is required to address the fallout from his report in that Commission. Those prosecutors require access to investigative dockets that properly prepare them to present successful cases to the courts. This is not happening in serious corruption cases and has not happened for many years and certainly not since the Scorpions were dissolved in 2009 at the behest of the 2007 ANC resolution passed in controversial circumstances.
The NDPP, Shamila Batohi, complains that the rule of law in SA is “on life support in the ICU”. Corruption with impunity, in general, is a major cause of the ailments of the rule of law and, in particular, the failure to properly implement the binding decisions in the Glenister litigation is at the root of the problem. It is inexplicable that the NPA seems to welcome the execrable IDAC Bill.
Addressing the mischief in a constitutionally compliant way
Fortunately, the official opposition has two private members bills under preparation in parliament aimed at addressing the mischief the IDAC Bill seeks to address. These two bills, if passed, will see the establishment of a new Chapter Nine body that has a proper mandate and the structure and functionality of a constitutionally compliant body with the means of implementing the Glenister decisions which bind government. It will also be capable of ensuring that there is proper compliance with Section 195 of the Constitution. The two DA sponsored bills should be considered in tandem with the IDAC Bill.
It seems unlikely that the BUSA CEOs initiative on crime and corruption, properly informed, will support IDAC, whilst the opposite is the case for a Chapter Nine body.
Part of the mischief the IDAC Bill does not address at all is the lack of necessary independence of the NPA, the body in which it envisages that IDAC should be located. The NPA does not enjoy the necessary independence and secure tenure of office that are required by law. See: https://accountabilitynow.org.za/?s=is+the+NPA+really+independent.
The starting point from which to depart in order to reach the decision needed to reject the IDAC Bill is the majority judgment in Glenister 2. It is the source of the STIRS criteria which bind parliament. It contains discussion of the centrality of independence and secure tenure of office. This judicial discussion by our highest court demonstrates that the executive is barking up the wrong tree in seeking to introduce IDAC as a means of achieving compliance with these two requirements of the law.
The executive now recognises that the STIRS criteria bind it. The media release which accompanied the publication of the IDAC Bill claims that by moving investigation into the NPA there is now compliance. This is simply not so. The NPA is under the final responsibility of the minister, its accounting officer is the DG of justice, and its policies have to be concurred in by the minister in terms of Section 179 of the Constitution. These are not the features of an independent “stand-alone” body required by law and supported by the NEC of the ANC in its August 2020 resolution detailed below. That no NDPP has ever seen out his or her term of office in SA is mute testimony to the fact that secure tenure of office is not a feature of the NPA in which the entire “upper deck” of leadership is appointed by presidents in their sole discretion.
It is the duty of the National Assembly to reject the unconstitutional IDAC Bill and to adopt, after debate and refinement during the necessary public participation process, the DA’s bills that are aimed at introducing the Chapter Nine Ant-Corruption Commission to prevent, combat, investigate and prosecute serious corruption in SA. The DA’s bills are based on the suggestions of Accountability Now.
This reform task should be approached with the necessary urgency so that the legislative process can be completed during the term of office of the current parliament. Moving forward diligently and without delay is required due to the corrosive effects of ongoing corrupt activities and the failure of the state to rake back the loot of state capture.
The NEC of the ANC has recognised the urgency of the need for reform and passed a resolution in August 2020 in which it instructed cabinet to establish a new stand-alone, specialist body that is independent and permanent. IDAC is not, by a country mile, what the NEC requires for the reasons set out above. It is not even a stand-alone body, as required by the NEC for good reason.
Practical considerations
It is argued by deputy minister John Jeffrey that the IDAC Bill is required as a stopgap measure rather than a permanent solution to the challenges of endemic corruption in SA. This argument undermines the necessary secure tenure of office requirement of the law. While the minister of justice stoutly contends that the new IDAC will enjoy permanent status, his deputy John Jeffrey, has let slip in parliament that the IDAC is regarded as a stopgap measure pending words of advice from NACAC, appointed in August 2022 and all but completely silent ever since.
The revelation by the deputy minister is not only destructive of the “permanence” argument put up by the minister but also reveals the false reasoning that informs the IDAC Bill. It is apparently thought in the ministry that once the IDAC Bill becomes law the necessary experts, the skilled specialists and the proper investigators needed will flock to join IDAC. This is a ridiculous notion. No one bitten by the demise of the Scorpions will so easily be persuaded to join IDAC while it is a “stopgap measure”. The fact that it is regarded as a stopgap measure is entirely destructive of the “Secure Tenure of Office” requirement of the law and is also likely to sabotage the recruitment efforts of the NPA. The ministry should be challenged to name those suitable personnel who are just waiting for the stopgap measure IDAC to be put in place so that they can join the staff of IDAC within the NPA.
The separation of functions between SAPS and NPA when it comes to the investigation of serious corruption is not dealt with satisfactorily in the IDAC Bill. It is in fact a recipe for conflict between the SAPS and NPA of the kind not seen since the ill-fated Jackie Selebi was chief of police and author of turf wars.
These practical considerations also militate against the adoption of the IDAC Bill. The National Assembly should far rather support the two private members bills of the shadow minister of justice.
Background materials
Accountability Now is responsible for the publication of three books which touch upon the subject matter of the IDAC Bill. They are:
Confronting the Corrupt, especially the chapters dealing with the Glenister cases.
Countering the Corrupt, with particular reference to the resolution set out on pages 145 to 147.
Under the Swinging Arch, in which the majority judgment in Glenister 2 is set out in full as an appendix as also the submissions made by Accountability Now to the Constitutional Review Committee in March 2023 as referred to in paragraph 2 above.
In addition to these books, a great deal of material has been assembled on the website of Accountability Now on the Glenister case and Anti-corruption pages. www.accountabilitynow.org.za Electronic and audio versions of the books are also available on the website.
Conclusion
The JPC should have no difficulty in rejecting the IDAC Bill for want of compliance with the Constitution and the interpretation of the Constitution contained in the majority judgment in Glenister 2, a interpretation by which parliament and the executive branch of government are bound.
Accountability Now is willing to supplement these submissions should the JPC so require either orally or in writing. Any written queries that may arise will be dealt with promptly within the capacity constraints of a small NGO.
Issued by Paul Hoffman, Accountability Now, 24 September 2023
