By Jonas Pauly: Centre for Constitutional Rights – 26 March 2019
In 2010, the Constitutional Court, in the matter of Glenister v the President of the Republic of South Africa, found that section 7(2) of the Constitution obliges the State to implement effective mechanisms for battling corruption. Although this is not stated explicitly in the Constitution, corruption hinders the State’s ability to “respect, protect, promote and fulfil the rights in the Bill of Rights”; an aspect that is particularly necessary for the fulfilment of positive socio-economic rights.
The mission to counter corruption is being spearheaded by the Zondo Commission of Inquiry into State Capture (the Commission). Its objective is to “inquire into, make findings, report on and make recommendations concerning” State capture, as stated in the Commission’s Terms of Reference.
President Cyril Ramaphosa has described the Commission’s revelations as a challenge to “the very foundation of our democratic state”. In his State of the Nation Address he called for prosecutions wherever evidence of criminal activity emerged. President Ramaphosa explicitly tasked Advocate Shamila Batohi, who took office as National Director of Public Prosecutions (NDPP) in February, with this responsibility.
Her appointment in December last year was the result of a transparent process, which gave reason for optimism. The President also announced the formation of a new Directorate in the National Prosecuting Authority (NPA) that will focus on the evidence emerging from the Commission and other inquiries into corruption. The Presidency announced the proclamation of this new Directorate on 20 March 2019.
The Directorate will be given investigative and prosecutorial capabilities. Some journalists likened it to the Directorate of Special Operations, better known as the Scorpions, disbanded in 2008. However,the President explicitly objected to headlines declaring the return of the Scorpions, maintaining the new unit will be decisively different. It is as yet unclear what the composition of the Directorate will be. According to media reports, Justice Minister Michael Masutha indicated that the Directorate will only be in place for about five years. Further, it will bring together experts from the Hawks, National Treasury, the Financial Intelligence Centre (FIC), the South African Revenue Service (SARS), the Special Investigating Unit (SIU) and experts from the private sector. The Directorate will exclusively investigate cases directly related to State capture and corruption and will apparently not be able to appoint permanent investigators. It seems that the intention is to fast-track investigations flowing from the findings of the Zondo Commission.
In public commentary Ramaphosa was mostly credited for moving in the right direction. On second glance, his move identified a perceived gap in the current set-up of the public prosecution system, when formally, such a gap did not exist. His announcement shows he possibly may have reservations about those currently charged with this task, namely the Hawks under the direction of the South African Police Service (SAPS). Their objective, as set out in the South African Police Service Act, is explicitly to “prevent, combat and investigate” offences in respect of corrupt activities. Regarding State capture, Hawks leader, Lieutenant-General Godfrey Lebeya, announced the creation of a task team to fast-track these cases in September 2018. However, if one looks at its record, Angelo Agrizzi, Andries van Tonder, Linda Mti and four others are the only suspects who have been arrested so far, according to media reports.
A brief clarification is required at this point. Due to the right against self-incrimination, and according to regulation 8(2) of the Regulations of the Zondo Commission, statements made by witnesses cannot be used as evidence against them in any criminal proceedings. Instead, an investigating unit must build an independent case based on evidence gathered – and not the witness’ statement. This makes the work of an investigative unit more critical since Zondo’s contribution will only bring “openness”. The “accountability” must come from the prosecuting branch. Meanwhile, what could initially be viewed as an administrative decision, could also be understood as a possible example of internal power clashes within the ANC. The President appears to be attempting to shift the prosecution of leading figures behind State capture further away from the political sphere.
It is unclear if Ramaphosa’s plan will be effective, since funding has yet to be secured. In his 2019 Budget Speech, Finance Minister Mboweni did not earmark any money for the new Directorate, and the NPA’s budget faces severe constraints. Resources are critical to transform the NPA into a true weapon against corruption, not to mention the implementation of a new Directorate. Without providing financial capacity, Ramaphosa’s announcement remains but lip service to the electorate.
It is encouraging to see a President who takes the fight against corruption seriously by making promising institutional decisions. However, he has to prove his integrity by ensuring this Directorate is supported by the finances and resources to the job. It will also be critical that the President is not perceived to be meddling and that prosecution of these cases are devoid from any political interference. For the sake of all South Africans, let us hope that neither administrative conflicts between the Hawks and the NPA, nor a lack of political will to properly finance the Directorate, will stand in the way of the State effectively battling corruption, as the Constitution requires.