South Africa’s anti-corruption architecture is slowly taking shape, with the introduction of a raft of amendments to the National Prosecuting Authority Act. In the main, these make the Investigating Directorate (ID) a permanent, staffed and capacitated body.
Tackling corruption in South Africa is no easy feat. Just ask ID head Andrea Johnson, an advocate who was appointed to head the National Prosecuting Authority’s (NPA’s) corruption and complex crimes unit last year.
The ID, a temporary body in the NPA, has had little success so far. First, its Nulane case against Gupta associates charged with fraud fell apart. Then there were the unit’s dismal attempts to extradite members of the state capture–accused Gupta family.
As its first big state-capture matter, the Nulane case, in particular, would turn out to be an embarrassment for the ID. Acting judge Nompumelelo Gusha had harsh words for the body’s prosecutors and investigators: “To say that the manner in which the investigation was conducted is a comedy of errors would be the understatement of the millennia.”
A huge disadvantage for the ID has been its temporary nature. Its investigators and prosecutors have been seconded from the Hawks, the State Security Agency and the NPA itself, which has meant individuals with little security of tenure have been expected to dig in for the long haul on complex cases, says Lawson Naidoo, executive director of the Council for the Advancement of the SA Constitution.
This is set to be addressed by amendments to the NPA Act, approved by the cabinet last week and tabled in parliament. Minister of justice & constitutional development Ronald Lamola has lobbied aggressively for the bill — no doubt amid pushback from within the cabinet and the ANC.
If passed, the amendments will make the ID a permanent body, with the power to hire permanent investigators and prosecutors, and to guarantee their security of tenure, Lamola tells the FM.
They will also provide for an oversight body — similar to that proposed in the Hawks’ initial iterations — headed by a retired judge. The aim would be to prevent any abuse of the considerable powers the ID will have to conduct investigations into complex crimes — a fail-safe of sorts that the Scorpions lacked.
The proposed amendments must now go to parliament for approval, before being signed into law by President Cyril Ramaphosa.
Lamola says the legislation is in line with Ramaphosa’s commitment to deal decisively with corruption at all levels of government. But it has already come in for criticism.
DA shadow minister of justice Glynnis Breytenbach, for example, believes a Chapter 9 institution that reports to parliament is preferable to housing the ID in the NPA. That, she warns, could see it being dissolved by the ANC once again, should it target key leaders.
Lamola takes issue with this point. The investigator-prosecutor model he’s put forward, he says, is in line with international best practice.
“I find the criticism unjustified, simply to make it a Chapter 9 institution so that it is not dissolved does not make any sense,” he says.
He adds that no institution or model is perfect, but the guarantees in the legislation — the ID’s independence as a unit of the NPA and the security of tenure for prosecutors and investigators — is in line with the best models.
In any event, Naidoo says Chapter 9 institutions can be weakened too. Look no further than the public protector’s office under Busisiwe Mkhwebane; it’s a current and painful example of the subverting of an institution designed to protect democracy.
(Mkhwebane is still fighting tooth and nail to retain her position until her contract expires on October 13 in order to retain her financial benefits, despite a parliamentary inquiry finding her unfit for office.)
Naidoo is cautiously optimistic about the amendments to the legislation. But he has identified some areas of weakness. For a start, it gives too much power of oversight to the executive — for instance, around remuneration for investigators and prosecutors. While it is acceptable that this is done in consultation with the ministers of justice and administration, the proposed legislation also provides for consultation with the minister of public service & administration.
In addition, the justice minister may only grant additional powers to investigators after consulting with the minister of police, given similarities between the investigators and police officers in terms of details in the Criminal Procedures Act.
In Naidoo’s view, this kind of overemphasis on consulting members of the executive could be a problem down the line.
He flags another issue: the ID’s independence can only truly be guaranteed by cementing the independence of the NPA as a whole. To do this, he recommends that the process undertaken by Ramaphosa to appoint current national director of public prosecutions Shamila Batohi should be “formalised” and used to appoint future national directors.
In a departure from previous processes, Ramaphosa had set up an independent panel to conduct the screening and interview process of candidates for the post. It then made a recommendation on the appointment.
Of course, a permanent ID won’t be alone in combating corruption, says Naidoo. It’s something of a parallel process to the work being done by the National Anti-Corruption Advisory Council appointed by Ramaphosa last year.
Council chair Firoz Cachalia tells the FM that the council discussed the introduction of the bill at its plenary last Friday.
“It is a very important step forward for a number of reasons,” he tells the FM. “First, a permanent body to investigate high-level corruption is crucial; also there are steps taken to ensure the independence of the ID; and, last ... the investigative and prosecutorial model to investigate corruption and organised crime is an important model ... likely to produce better results.”
However, Cachalia says this doesn’t mean the committee will be precluded from developing proposals to strengthen the work of the ID or another overarching body to tackle corruption.
There is another element being examined closely by the committee: the issue of prevention.
Cachalia says the Special Investigating Unit (SIU) provides a template for how this could work when it comes to the issue of systemic corruption in particular institutions.
The president makes a proclamation for the SIU to look into a specific area — the corruption at Fort Hare, for instance. It then investigates the issue and, as it uncovers wrongdoing, it can take preventive measures through civil litigation to ensure no further financial loss, and by recommending systemic change in the institution.
Of course, the system isn’t perfect. The president only last month issued a proclamation for the SIU to investigate goings-on at Tembisa hospital — an institution riven with corruption, as revealed by News24 last year. (Gauteng health department finance official and whistle-blower Babita Deokaran was assassinated after reporting corruption at the institution.)
“The institutional architecture we put in place cannot simply look at criminal prosecutions and investigations,” he says. “We have to be proactive and deal with the system of corruption ... so that is where we are, looking at both ends, prevention and prosecution.”
The commission is set to make its first round of proposals to Ramaphosa early next year. (These will be made public at the discretion of the president.)
“[Fighting corruption] is a huge and complex undertaking,” says Cachalia. “There is no guarantee that we as a country will have success overnight ... it has complex requirements ... from political support, to institutional change, capacity building ... and even societal change.”
The ID declined to comment on Lamola’s amendments when approached.
The legislation will now follow parliamentary processes before being signed into law, and there are likely to be changes along the way.
For Naidoo, at least, the amendments may just be a temporary measure until potentially larger institutional changes emerge from the work being done by Ramaphosa’s advisory committee.
Whether the amendments will be signed into law before the election next year is also a huge question. Pushing the law through parliament before the polls will be a test of the ANC on two counts: first, of its political will to tackle graft; second, of whether its call for the return of a Scorpions-like model to prosecute high-level crimes is mere rhetoric as South Africa continues to sink under the weight of corruption.