DAVID LEWIS: Anti-corruption agency — legal niceties offer scant protection from state capture

Parliament’s justice portfolio committee will convene this week to consider the 21st Constitution Amendment Bill, a private members bill tabled by Glynnis Breytenbach, MP of the DA.

This proposes a new anticorruption agency — the Anti-Corruption Commission — focused entirely upon establishing a new investigative and prosecutorial body on serious corruption. It proposes that the commission be enshrined in chapter 9 of the constitution, to protect it from bad faith executive or legislative interference, as notoriously occurred when the Scorpions were abolished. 

The proposal for a new law enforcement agency of this kind are predicated upon several explicit and implicit assumptions. The first is that criminal justice is the only significant deterrent to corruption; the second that the greatest threat to the investigation and prosecution of corruption is executive interference; and the third that the Hawks, and particularly the National Prosecuting Authority (NPA), were so comprehensively damaged by state capture and their independence so deeply undermined, as to render them incapable of successful enforcement of the anticorruption statutes. 

It isn’t only the drafters of this bill who want to see perpetrators of corruption in orange overalls. So do the SA public, including the members of the National Anti-Corruption Advisory Council (appointed by the president, and of which I am a member). However, in advising the president we are obliged to take note of a counterintuitive truth, namely that criminal investigation and prosecution of corruption is not the deterrent it’s cracked up to be. Successfully prosecuting corruption on a criminal standard of “beyond reasonable doubt” is eye-wateringly difficult.

The crimes under question are the product of a clandestine conspiracy between two guilty parties with no innocent bystanders witnessing the crime; there are no murder or assault weapons; the crimes are inordinately complex, often involving cross-border financial flows and bank accounts in secret jurisdictions; the perpetrators are assisted by “respectable” enablers in the form of banks, law firms, accounting firms and management consultants, experts in representing the bad guys and hiding their ill-gotten gains. Hence, successful investigation and prosecution of serious corruption is a global rarity. In short, the risk of detection for serious corruption is low, and the returns are great. 

There is no evidence of this administration interfering in the operational decisions of the Hawks or the NPA. On the contrary, there are a number of powerful politicians, public officials and law enforcement officers now under investigation and prosecution. There was certainly interference during previous administrations in the work of the Scorpions and the NPA, and then president Jacob Zuma set up a compliant and corrupt leadership of these and other law enforcement agencies — for example crime intelligence.

But if the electorate puts in place and retains in office an executive and legislature as deeply corrupted as that of the Zuma (or Trump) administration, legal niceties offer scant protection. Witness the fate of the public protector — a heroic anti-corruption body under a leader of integrity; an enabler of corruption under a different leadership. And this despite the protective umbrella of chapter 9 of the constitution. 

Central to the National Anti-Corruption Advisory Council’s mandate is the consideration of a new anticorruption agency (as proposed in the cabinet-endorsed national anti-corruption strategy), the strengthening of the law enforcement agencies, and consideration of the institutional and strategic proposals of the Zondo state capture commission.

We too have recommended the establishment of a new anticorruption agency, dubbed the Office of Public Integrity (OPI). However, cognisant of the exaggerated claims made for the deterrent effects of criminal justice, we recommend that the new agency focus on preventing corruption. But also cognisant of the continued importance of criminal enforcement for the combating of corruption, we’ve also made wide-ranging recommendations aimed at strengthening the agencies and providing, as required by the Constitutional Court, for the “adequate” independence of these bodies. 

The preventive function includes responsibility for, inter alia, public education and mobilisation, policy advice and data collection and analysis. Arguably the most important preventive weapon at its disposal will be the investigation of systemic corruption, which occurs when corruption is so pervasive in a particular public agency or function as to suggest the governance and management guardrails preventing corruption have broken down. The investigation will identify these shortcoming and make findings directed at remedying them. 

The OPI will also be responsible for co-ordinating the “all-of-government, all-of-society” approach to fighting corruption. Law enforcement cases will be managed and co-ordinated by a separate structure comprising the law enforcement agencies only. 

The Special Investigating Unity (SIU) presently carries out several of these functions, though it will require considerable expansion. But it’s in the area of investigating systemic corruption in which the SIU is most practised. At present, the SIU is required to receive a presidential proclamation before commencing a formal investigation. We recommend that, while the president retains the power to order an investigation, the OPI will also be empowered to undertake an investigation on its own initiative. Its findings will be binding upon the institution under investigation. When in the course of an investigation it uncovers evidence of criminality it will refer this to the Investigating Directorate Against Corruption, the unit within the NPA tasked with investigating and prosecuting serious corruption.

We, therefore, recommend that the SIU, its resources and personnel be absorbed into the new agency. This will strengthen and focus an existing agency and will short-circuit the costly and time-consuming business of establishing a major new institution. We recommend that the OPI be established as one of the “state institutions defending constitutional democracy” under chapter 9 of the constitution. 

The law enforcement agencies were severely damaged by state capture. This was principally achieved by the simple expedient of appointing the wrong leaders to the right places, notably the NPA, Hawks and crime intelligence. President Cyril Ramaphosa replaced the leadership of the NPA and Hawks with leaders of competence and integrity. While legacies of the past remain and in a country racked by violent crime and complex white-collar crime, both organisations face a daunting workload, the data shows clear evidence of a turnaround in both organisations.

We’ve not ignored the necessity to strengthen the criminal justice agencies, still critical components in fighting corruption. To date we’ve focused principally upon the NPA and the Hawks. We, like the drafters of the bill, are concerned at the constraints placed on the NPA’s independence.

To overcome these we propose a transparent and professional mechanism for appointing the national director of public prosecutions and their deputies and senior regional leaders. We’ll strengthen their security of tenure. We recommend that the NPA be freed of the peculiar constraints imposed upon its administrative independence.

At present the director-general of the department of justice is the accounting officer of the NPA. This is not only administratively inefficient but restricts the independence of the NPA in staffing and salary decisions, thus limiting its ability to compete in a highly competitive market for investigative and prosecutorial skills. We recommend that the accounting officer function be transferred to the national director of public prosecutions. 

We are, however, strongly opposed to removing the constitutional monopoly the NPA enjoys over prosecutions, and the constitutionally enshrined requirement that there be a single national police service. The bill would in effect do away with both constitutional protections. We know of no other country in which parts of the powerful prosecutorial service and police service are freed of all executive oversight.

We are confident that these reforms are perfectly compatible with absolute operational independence of the law enforcement agencies and that they will meet the Constitutional Court’s requirement that the NPA be “adequately independent” to be able to play its critically important role in holding criminals to account and deterring further criminal conduct. 

• Lewis, a former trade unionist, academic, policymaker, regulator and company board member, was a co-founder and director of Corruption Watch.