LETTER: State obliged to create independent anticorruption entity

If the government is going to get real about tackling serious corruption, there are a few facts and legal considerations that need to be considered.

The decisions of the Constitutional Court in the Glenister litigation are binding on the government, yet they have never been properly implemented despite their loud and clear requirements.

The government is obliged to create a reformed anticorruption entity that is sufficiently independent to counter corruption effectively and efficiently. We are without such an entity at present.

Our prosecution service (NPA) is not properly independent. It is run as a programme of the department of justice with the director-general of justice as its accounting officer. The minister of justice retains what the constitution calls “final responsibility” over the NPA, which reports to him.

A reporting line to our multiparty parliament is preferable by far for a truly independent entity. It is achievable via Chapter 9 status. All Chapter 9 institutions report directly to parliament. The pernicious executive interference, influence and control that has so hamstrung the NPA (and killed off the Scorpions) simply does not apply to them.

Secure tenure of office is one of the criteria set by the court. The fact that no national director of public prosecutions has seen out his or her term of office is all you need to know about security of tenure in the NPA. A permanent Investigating Directorate (ID) within the NPA will be no better off than the Scorpions were due to its vulnerability to being closed by a simple majority in parliament.

A Chapter 9 institution’s closure requires a two thirds majority and the legal abandonment of the rule of law would need a 75% majority in parliament. Ordinary legislation tweaking the status of the ID within the NPA could in future be repealed in the same way as the Scorpions enabling legislation was repealed.

Few self-respecting skilled and experienced corruption-busters will be prepared to serve in the revamped ID — many more are far more likely to volunteer for the army of prosecutors the chief justice says are required, if they are recruited into a standalone independent and properly resourced Chapter 9 anti-corruption institution that is fully compliant with the Glenister requirements. Anything less won’t do.

Paul Hoffman, SC
Director, Accountability Now

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