Political will is in a state of flux in South Africa as we approach the general elections scheduled for a date which, by law, must be between May and August 2024. Some pundits feel confident that a May election is likely.

Those who look into the political crystal ball of market research into the attitudes of South African voters note an increase in support for the opposition formations and a reduction of support for the tripartite alliance that has governed at national level in South Africa since freedom dawned in 1994.

Read more in Daily Maverick: Fresh poll shows ANC dropping to 41% and a path to victory for Multi-Party Charter

Some confidently predict that at least the three main provinces from an economic and population perspective, Gauteng, KZN and the Western Cape, are unlikely to be governed by the ANC-led alliance after the provincial votes are counted.

There are two related but separate critical issues that impact the future trajectory of South Africa and which ought to help inform voters when they decide how to cast their votes on the basis of the stance of political parties on both issues.

International Anti-Corruption Court

The first is the long-identified need for an International Anti-Corruption Court which will operate worldwide along the lines of the International Criminal Court. The notion of establishing such a court is advocated by Integrity Initiatives International and it is gaining traction worldwide.

The court will, once established, operate on the basis of the doctrine of complementarity, which means that corruption cases that states are unwilling or unable to prosecute will be referred to the IACC. Issues of admissibility of cases and of the initiation of an investigation will likely be dealt with internationally along the lines of articles 17 and 53 of the Rome Statute which applies to the ICC.

At this stage, the momentum towards establishing the IACC is building in countries that respect the rule of law and have concerns about the impact of international corruption.

At present the illicit flows out of Africa are 10 times the amount of foreign aid received each year. So, for the people of Africa, but not the kleptocrats who loot Africa’s resources, it is vital that the IACC stem the illicit outflows.

The unwillingness of kleptocrats to support the IACC is not necessarily the end of the idea of an IACC. If enough countries to which kleptocrats are fond of sending their loot sign up for the IACC then the court can take steps to recover the loot located in countries which do join even if the kleptocrats hide in places beyond its jurisdiction.

Criminal justice administration reform

The second is the need for urgent reform of the criminal justice administration in South Africa to better capacitate it to counter serious corruption by being empowered to prevent, combat, investigate, and prosecute serious corruption.

The implementation of the recommendations of the Zondo Commission into State Capture insofar as prosecuting those involved and recovering the loot are concerned, has stalled due to the lack of capacity of the existing system which was finally set up in 2014 after the disbandment of the Scorpions in 2009 in accordance with an ANC resolution taken in 2007 to do so. It is reported that even the current secretary general of the ANC acknowledges that the 2007 resolution was a mistake.

It is now common cause that the system, in which investigations are the task of the Hawks and prosecutions the work of the National Prosecuting Authority, is not working as it should. Good and successful prosecutions follow thorough expert investigations. The Hawks do not have the clout necessary to investigate corruption in high places properly and are part of our dysfunctional police service. The talent, skills and capacity to counter serious corruption have to be found and located elsewhere.

NPA upgrade 

Two diametrically opposed solutions to this problem are on the table. The first is that the national Cabinet proposes that the existing Investigating Directorate in the NPA be upgraded to an Investigating Directorate Against Corruption (Idac) which will operate along the lines of the defunct Scorpions as a unit within the NPA tasked with going after the cases of serious corruption and organised crime that fall within its mandate.

The Idac Bill, prepared by the ministry of justice, will be subjected to the necessary public participation process in the National Assembly in the last week of October 2023 and submissions by interested parties will be considered by the Justice Portfolio Committee.

The second solution is that suggested by Accountability Now in 2012 and refined into a pair of bills which have been available to government and public alike since August 2021. It is based on a “best practice” approach to the criteria for our anti-corruption machinery of state that were laid down in binding terms by the Constitutional Court in 2011.

The suggestion by Accountability Now has been adopted by the official Opposition in Parliament. Two private members bills sponsored by the shadow minister of justice are in the works. The suggestion also enjoys the support of the IFP, the Defend our Democracy Movement, the Catholic Bishops Conference and the Anglican Archbishop. Various non-party political bodies also support the notion of establishing a new Chapter Nine Institution to prevent, combat, investigate and prosecute serious corruption and organised crime.

The essential difference between the two contrasting proposals is that Cabinet does not want a stand-alone, independent, permanent specialist body. It prefers to house the Idac it proposes within the NPA. This means that Cabinet is not willing to implement the resolution of the NEC of the ANC taken in August 2020. The NEC does not want, or did not in 2020 want, the new body to be housed within the NPA.

There are good reasons for not housing the much-needed new body in the NPA. During State Capture the NPA was devastated by the ravages of cadre deployments that were designed to protect the kleptocrats and their fellow travellers in the business world. This “captured status” is not a milieu in which anti-corruption work can be expected to thrive.

Worse still is that the NPA is not an independent body. The leadership of the NPA has long advocated the upgrading of its status to independent, but the Cabinet is not interested in doing anything of the kind as is eloquently demonstrated by the wording of the Idac Bill.

Accountability Now and many other organisations will be participating in the processing of the Idac Bill. We will argue that the bill should be scrapped and replaced with draft legislation initiated in Parliament along the lines of the DA’s private member’s bills that will, if adopted, see the creation of the Chapter Nine Institution that best embodies the Glenister litigation decisions of the courts that are binding on Parliament and the national Cabinet.

The Idac Bill is unconstitutional because it does not embody the criteria set by the courts for our anti-corruption machinery and is accordingly not compliant with the rule of law (which requires implementation of judgments) and also inconsistent with the Constitution as interpreted by the Constitutional Court in the Glenister litigation. The detailed written submissions of Accountability Now are available to the public. During the time allocated for the oral hearing in Parliament the following points will be made on behalf of Accountability Now:

1. In order to pass constitutional muster, the Investigating Directorate against Corruption or Idac Bill must be formulated in terms that are consistent with the Constitution as it was interpreted in Glenister 2;
2. As Idac will be located as part of the public administration within the NPA, it is vital that the law creating it complies with Section 195(1) of the Constitution, especially as regards promotion of ethics, effectiveness and efficiency. Idac must also be clothed with characteristics that help discharge the obligations of the state under Section 7(2) of the Bill of Rights and Section 231 of the Constitution as authoritatively interpreted in the majority judgment in Glenister 2. Existing treaty obligations require that the state puts independent anti-corruption machinery in place to deal with corruption;
3. The Glenister 2 judgment construes the Constitution to require of the state that effective and efficient anti-corruption machinery of state be established via the reasonable decision of a reasonable decision maker in the circumstances. Idac has to be compliant with the Stirs criteria laid down by the Constitutional Court in terms that bind both Parliament and the executive. Stirs is the acronym for Specialised, Trained, Independent, Resourced in guaranteed terms and Secure in tenure of office;
4. The Honourable Minister of Justice, Ronald Lamola, claims that the bill now under consideration is Stirs compliant. He says, in the media release that accompanied the bill: “The bill is a significant step towards enhancing the NPA’s independence and ability to prosecute high-level crimes. It creates a specialised entity within the NPA, staffed with trained individuals who enjoy the requisite level of independence, resources, and security of tenure to tackle corruption head-on”;
5. Choosing to locate Idac within the NPA is destructive of both its independence and its secure tenure of office. Idac, as a unit within the NPA, will be no better off than the DSO or Scorpions were, as their identical position within the NPA was far from independent and secure;
6. The NPA itself is also not independent and secure: it operates under the “final responsibility” of the minister, requires his concurrence in prosecution policy and has as its accounting officer the director general of justice. This is not the type of structure in which Stirs compliance is created, especially as regards independence and secure tenure;
7. Resourcing of guaranteed kind is also not a feature of the NPA and is not envisaged for Idac;
8. As part of the NPA, Idac will suffer from the same structural and operational flaws as the NPA;
9. On a practical level, the NPA has very little prospect of recruiting the trained specialists everyone agrees are needed to conquer corruption. This is because of the bad, indeed institutionally fatal, experience of the DSO; and
10. The Constitution, read with the judgment referred to above, requires that Parliament reject the minister’s draft bill and instead give its favourable consideration to the establishment of a Chapter Nine Institution that has the features required by the ANC NEC resolution of August 2020 and a mandate to prevent, combat, investigate and prosecute the scourge of serious corruption and organised crime. With the necessary political will, there is still time for this Parliament to do so. Our suggested draft amendments have been available since August 2021.

In the final analysis, it is probably too much to expect the national Cabinet to relinquish the control it currently exercises over the NPA, including the ID and, if it sees the light of day, Idac. It is for Parliament to assert itself in the same way and along the same lines as the NEC of the ANC if it is serious about developing the political will to address grand corruption ethically, efficiently and effectively.

The voting public of South Africa will be watching with interest how the debate in Parliament develops. Those still unwilling to bring the necessary political will to bear risk opprobrium at the polls in 2024. DM