The DA’s Shadow Minister of Justice, Glynnis Breytenbach, has called for public comment on her plans to introduce a bill amending the Constitution by the establishment of a new Chapter Nine Institution which she calls the Anti-Corruption Commission or ACC.
The text of the bill is published together with the notice calling for public input. It is based upon the suggestion made by Accountability Now in August 2021, a suggestion which refined earlier iterations of the proposed legislation going back to 2011 after the seminal decision of the Constitutional Court in the case now known as Glenister 2.
Breytenbach’s team has added flesh to the bones of the suggested reform first put forward by Accountability Now in August 2021. It is designed to enhance the capacity of the criminal justice administration to counter serious corruption and high-level organised crime.
At a high level, the ACC bill is designed to give effect to that judgment by getting the legislature and executive to implement properly the criteria set in it. Accountability Now dubbed the criteria the Stirs criteria back in 2011 when it first began advocating these binding requirements of the judgment.
That there is a need for reform is not in question. The ANC has its own proposal — one made in the tacit acknowledgement that the current system is not functioning as it should. The Hawks, given the task of investigating corruption, have not proved to be equal to the task. Their structural and operational independence are so lacking that they have never landed a “big fish” out of the large pond of corrupt players in SA.
The court in 2011 enjoined the legislature to make the reasonable decision of a reasonable decision-maker in the circumstances when it delivered the judgment. This requirement has, until now, been assiduously avoided by the national legislature in which the ANC is the dominant party.
The ANC prefers to assert hegemonic control of all levers of power in society. An independent body tasked with countering serious corruption does not fall within this preference. There is a clash in values and a failure on the part of the ANC to respect the binding nature of the court’s decision. This requirement is set out fully in Section 165(5) of the Constitution. The rule of law is undermined by the failure to take the criteria set seriously.
As Breytenbach’s bill will require a two-thirds majority in Parliament, much will turn on the attitude of the ANC towards it in the new seventh Parliament that will take office after the elections on 29 May 2024.
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The Cabinet has a different policy position to that of the DA as encapsulated in the Breytenbach bill. It favours the establishment of an Investigating Directorate Against Corruption located within the National Prosecuting Authority.
Its bill, the Idac bill, has been processed by parliament and is on the desk of the President awaiting his assent or, if the President has reservations about the constitutionality of the bill, a referral of it back to the National Assembly for reconsideration.
The President is currently mulling his decision; he would presumably not wish to assent to an unconstitutional bill and he has been given copious input from civil society organisations as to why the bill is indeed unconstitutional.
Current system failing
In short, the Idac bill locates Idac within a body that does not pass the well-known and oft-trumpeted Stirs criteria. The NPA is under the final responsibility of the minister of justice who must concur in all prosecutorial policy. It is run as a programme within the Ministry of Justice and its accounting office is the director general of justice. These factors are not the stuff of which independence and secure tenure of office are made.
Breytenbach, for her sterling efforts, deserves a new acronym for the bill she will introduce within 100 days of the commencement of the new parliamentary term, ‘Tsarist’. Tsarist stands for “trained specialists, adequately resourced, independent and with secure tenure”.
Should the President not assent to the Idac Bill, wisely so, the way is open to discuss alternatives as it is common cause in Parliament, and indeed in society, that serious corruption and high-level organised crime are out of control in the country.
Clearly, the current system is not working. Radical reform that does properly implement the court-ordered criteria is what is required. The Breytenbach bill offers a way out of the current morass toward effective and efficient anti-corruption machinery of State.
On the other hand, should the President be so ill-advised as to regard the Idac Bill as constitutionally compliant and assent to it, the new law will be assailed in the courts with a view to having it struck down as unconstitutional.
Coalition conundrums
It is possible that coalition politics will play a role in the attitude of the ANC toward the Breytenbach bill. Much will depend on the relative strength of the parties in the post-election parliamentary order. It does seem clear that the support of the ANC for the Breytenbach bill is a sine qua non of its success.
It might not be as difficult as it appears to be to persuade the ANC of the attractiveness of the Breytenbach bill. It has the advantage of being constitutionally compliant, unlike the Idac Bill. It also ticks the boxes that were created by the NEC of the ANC in August 2020 when it issued an urgent instruction to Cabinet to establish an independent stand-alone and permanent body of specialists for the same purpose as Breytenbach contemplates.
The Idac Bill is an inadequate response to the resolution of the NEC and now that the Breytenbach bill is in circulation, the NEC of the ANC will do well to revisit its resolution of August 2020.
When the President himself was introduced to the notion of a Chapter Nine anti-corruption entity by the IFP at question time in March 2019 he found the idea “refreshing” and undertook to mull over it. The IFP was in fact the first political party represented in Parliament to accept the notion of a new Chapter Nine Anti-Corruption Commission.
It is also supported by the Multi-Party Charter, and the EFF goes one step further by suggesting in its manifesto that the whole of the NPA be turned into a Chapter Nine body. The MK party has completely different ideas about the future of constitutionalism under the rule of law.
The Chief Justice has expressed his concerns about the state of corruption in the country. Late last year at a conference organised by Nacac, he insisted that drastic steps to address the scourge of corruption are needed.
It is fervently to be hoped that the Breytenbach bill will enjoy the support of the necessary majority in Parliament and that it will, in due course, be accompanied by enabling legislation that is fit for purpose. Its passage will be a good advertisement that coalition politics work and that South Africa is open for business, investment and tourism.
May the Tsarist mission soon be accomplished. DM