More anti-corruption units won't help

Posted 21 July 2013 Written by Paul Hoffman
Category Transparency

Hard on the heels of the announcement of the formation of the Public Service Anti-Corruption Bureau comes the announcement of the re-instatement of a special SAPS anti-corruption unit by police chief, Ria Phiyega, writes Paul Hoffman SC of the Institute for Accountability in Southern Africa. These two units join more than a dozen existing entities and organisations that are all tasked with preventing and combating corruption - to very little effect, if the latest Transparency International survey results are anything to go by.

The Rule of Law Index for South Africa gives a 0.5 or 50% score on its "Absence of Corruption" factor for the country, this compares unfavourably with the scores of our main trading partners and serves as a dampener to direct foreign investment and the promotion of tourism by foreign visitors too.

In the midst of all the doom and gloom on the corruption front comes the welcome news that, after being investigated informally by retired Justice Zac Yacoob and Adv Musi Sikhakhane of the Johannesburg Bar, former SARS boss Oupa Magashule has decided to fall on his sword rather than face a disciplinary inquiry concerning his questionable conduct in relation to an underworld figure and some suspiciously crony career punting. 

Patrick Craven of COSATU welcomes this development as evidence that "The Minister's firm response to the allegations should set an example and become a benchmark for all government and private business leaders" Craven continues: "There has to be swift action, as soon as there is evidence that corruption is taking place under (sic) your watch to ensure that the truth is exposed and appropriate disciplinary or legal action taken if the allegations are found to be true."

If Craven is to be taken seriously, then Justice Yacoob can expect to have a very busy retirement with his hands full of corruption-busting activities.

All of this begs the question: How is corruption best tackled? The fact that the informal inquiry by an independent committee had the desired effect in Magashule's case is a clue that has apparently not been noticed by those who design the multitude of anti-corruption entities in South Africa. Phiyega does have an inkling of what is required when she remarks that her new unit "will ultimately contribute to ... the objectives of establishing a functioning anti-corruption system that is adequately resourced and enjoys operational independence to ensure thoroughness and objectivity".

These sentiments indicate that Phiyega is about half way there. The Organisation for Economic Co-operation and Development (OECD) has conducted scientific studies of the "how to" of combating corruption and prescribes five criteria: specialisation, training, adequate independence from political control and interference, guaranteed resourcing and security of tenure of office of the corruption busting staff. Until these attributes are respected and implemented in the anti-corruption machinery of SA we cannot hope to make progress in the fight against endemic and corrosive corruption, especially the corruption in high places.

It is also useful to note that last November many current and former heads of anti-corruption entities around the world gathered in Jakarta and adopted a Statement of Principles for Anti-Corruption Agencies. [Mother Google reveals the complete text, if the search words "Jakarta Statement" are entered.] The principles are designed to ensure the independence and effectiveness of the anti-corruption entities. They both overlap with and expand upon the OECD criteria which have been referred to with approval by the Constitutional Court in SA in its majority judgment in the well-known Glenister case. The Jakarta principles relate to the following topics:
  • mandate definition with collaboration with all interested parties at home and abroad including civil society, the private sector and official agencies;
  • permanence (the lack of which saw the demise of the Scorpions);
  • appointment processes, provision for continuity when heads end their tenure of office for whatever reason, restrictions on powers of removal of heads;
  • codes of conduct to promote ethics;
  • immunity from civil and criminal proceedings for work done in good faith;
  • adequate and reliable resources and remuneration with internal authority over human resource management;
  • financial autonomy coupled with both internal and external accountability mechanisms;
  • a system of public reporting that includes regular public engagement and communication.
It can be seen from this summary that our chief of police has a long way to go if her intention is to create a seriously effective and efficient anti-corruption unit. At present a lot of anti-corruption work lands on the desk of the Public Protector, whose mandate is actually preventing maladministration. The Hawks, whose work centres on priority crimes of all kinds, are dysfunctional with many members facing criminal charges ranging from murder to racketeering. The Special Investigations Unit only has power to attend to matters referred to it by the President. The President has 783 unresolved charges of corruption hanging over his head, charges which the prosecutors consider will stick if a trial ever eventuates. The review of the decision not to proceed with those charges is seemingly permanently stuck in preliminary skirmishes in the courts.

The "how to" of beating corruption is the creation of a sufficiently independent anti-corruption entity clothed with all of the attributes listed. Corruption is a crime. It is accordingly the function of the criminal justice administration to devise the best practice means of dealing with this sophisticated and omnipresent manifestation of crime. Ordinary citizens can report on and monitor corrupt activities, but they will continue until the criminals involved regard the risk of detection, investigation, prosecution and conviction too great to venture into corrupt activities. What is lacking is the political will to accept this self-evident truth and act upon the crying need to address it.

The Constitutional Court frowns upon the notion of executive control of anti-corruption entities. The police structures at present in place are under the control of the minister of police. The chief of police "manages and controls" the SAPS and the Hawks are part of the SAPS. The prosecution authorities have no general mandate to engage in the primary investigation of corruption. It is regarded as one of the priority crimes for which the Hawks take responsibility. But the Hawks, even as redesigned by the amending legislation passed last year, are not an independent body, they are a sub-unit of the SAPS and answerable to the executive branch of government.

As the chief of police has correctly pointed out, the National Development Plan does envisage the creation of independent corruption busters. The new SAPS anti-corruption unit is not such a body, nor is the Anti-Corruption Bureau. They cannot be expected to tackle the types of corruption that are in most urgent need of attention. Their operatives will not be clothed with the level of "clout" that the criteria created by the OECD require and the principles of the Jakarta statement encourage. Developing the political will to incorporate these criteria and principles into the domestic law of SA is no easy task, given the state of the current political leadership, the unanswered questions hanging over the arms deals inquiry and the scandal of the construction industry cartels that have been exposed in the workings of the Competition Commission.

In August 2013 the Western Cape High Court will hear a challenge to the constitutionality of the laws which pertain to the Hawks. Their track record and the circumstances in which the country finds itself at present in the war on corruption will be examined and the court will rule upon the law's consistency with the requirements of the Constitution. The need for proper anti-corruption machinery of state is evident. It is the first and most necessary step in the war on corruption. The lip-service currently been paid to this is related to the imminence of the litigation and to the elections next year. It is not the right way to go about effectively conquering corruption before it conquers all of us.

Relevant legislation:
Prevention and Combatting of Corrupt Activities Act 2004
Constitution of the Republic of South Africa 1996
Prevention of Organised Crime Act 1998

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