Quote of the week

[Nostalgia] is rarely the past as actually experienced, of course; it is the past as imagined, as idealized through memory and desire. In this sense … nostalgia is less about the past than about the present. It operates through what Mikhail Bakhtin called an ‘historical inversion’: the ideal that is not being lived now is projected into the past.

David Medalie
18 March 2011

Glenister: A monumental judgment in defence of the poor

Corruption is a human rights issue and the only way for a state effectively to combat corruption is through the creation of a truly independent unit that investigates corruption with a view successfully to prosecute all those who have engaged in corrupt activities. I would guess that for most South Africans this is a pretty obvious fact. Sadly, in the past some in the ANC government (and the majority of ANC delegates at Polokwane) have shown itself to be less than enthusiastic about the investigation and prosecution of alleged corruption involving party leaders or involving those closely aligned to the ANC through mutually beneficial financial arrangements and family and friendship ties.

Hence, the Scorpions were abolished and a new unit — the Hawks – were created to investigate “priority crimes”. But yesterday in the judgment of Glenister v President of the Republic of South Africa and Others a majority of judges of the Constitutional Court (in a brave and brilliant judgment authored by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron), found that the Hawks were not sufficiently independent and that the state had therefore failed to fulfil its obligations to respect, protect, promote and fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution.

Both the majority and minority judgments emphasised the importance of fighting corruption and the need to establish a body that was sufficiently protected from political interference to do so. The minority held that the Hawks were sufficiently protected from such interference as it seemed to assume that politicians would not interfere with the Hawks (a rather surprising assumption given the allegations of interference with the far more independent Scorpions and given the interference by the intelligence services in the work of the Scorpions) and because there were sufficient checks and balances in the legislation to ensure that it would not be “subject to undue influence” by politicians.

The majority took a far more robust approach to what was needed effectively to fight the corruption that seems to be engulfing South Africa like a tsunami. The ANC government might be tempted to try and tweak the Hawks legislation without really changing anything in order to comply with the judgment, but in my opinion the approach taken by the majority would doom any attempt merely to make some cosmetic changes to the structure of the Hawks. For the majority the starting point was the evil of corruption and the need to provide effective mechanisms to deal with it wherever it may be found:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

Quoting from a speech by Kofi Anan, the majority also noted that corruption hurts the poor disproportionately by diverting funds intended for development and by undermining a government’s ability to provide basic services. Corruption thus perpetuates inequality (put that in your pipe and smoke it, Jimmy Manyi).

If one understood that section 7(2) of the Constitution requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, it becomes clear that the failure on the part of the state to create a sufficiently independent anti-corruption entity infringes on the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights — including the rights to education, housing, and health. Corruption was therefore an assault on the poor and on those who have suffered from discrimination in the past.

What was therefore required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. Although there are many ways in which the state can fulfil this constitutional duty, if the state fails to create a truly independent corruption fighting body it would be in breach of its Constitutional duties.

This is strong stuff. But it gets even better. What are the requirements for such an independent body?

First, the majority indicated that the appearance or perception of independence plays an important role in evaluating whether a corruption fighting body was truly independent. This meant that the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public:

[P]ublic confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity‘s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

Second, in a passage that may have consequences for our understanding of the appropriate relationship between the Minister of Justice and the NPA, the majority stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

Third, the Hawks are now “ordinary” police officials who enjoyed little if any special job security — a requirement for any truly independent corruption fighting unit. The majority pointed out that the Hawks at present can be fired by the Commissioner of Police for any number of reasons and that it appears as if he can also fire the head of the Hawks.

Although the majority does not say this, the lack of independence of the Hawks due to this provision is highlighted by the fact that our present Police Commissioner has recently been found to have acted in an unlawful manner relating to a highly problematic lease entered into to rent new Police Headquarters. If the Hawks were to investigate any possible corruption relating to this deal, the Commissioner would, in effect, be able to fire those responsible for the investigation for any of a number of reasons not officially related to the investigation.

But even if the National Commissioner of Police were not involved there could be problems with his power to fire members of the Hawks. The majority pointed out that unlike the National Director Public Prosecutions (NDPP) — who selected the head of the Scorpions from amongst the Deputy NDPPs –  the Police Commissioner can be re-appointed by the President at the end of his term. As the majority pointed out, a renewable term of office heightens the risk that the Police Commissioner may be vulnerable to political and other pressures. In theory the President could therefore place pressure on the Police Commissioner to fire those Hawks who dared to investigate allegations of corruption against — say — the Guptas or — say —  against the President himself.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

In other words, at present politicians can in effect decide what crimes the Hawks must investigate and, by implication, what crimes it should stay away from. This line of reasoning makes sense. If a President or other members of the executive are corrupt and wishes to avoid criminal sanction, these provisions would help them to do so. Although parliament is supposed to have some oversight function over this function, the President – as leader of the majority party — have indirect control over the majority of members of Parliament and hence could potentially ensure that no oversight takes place. If this ever happened this would completely subvert the corruption fighting ability of the Hawks – at least as it relates to politically connected individuals and institutions.

The majority made clear that it was not assuming that these powers would be abused by any politician. But where politicians are given powers over a corruption fighting unit that can be abused, that body does not have the requisite independence to make it effective.

From the above it must be clear that it is going to be difficult for the executive and Parliament to comply with the judgment by merely tweaking the existing legislation. A completely new institution with far more safeguards to secure its independence will have to be created. Of course, even such a body will only be as good as the people appointed to it. The professional naysayers will argue that such a body will never be truly independent because fundamentally dishonest or corrupt people will be appointed to it to protect the ANC.

I would disagree with such a pessimistic assesment.

Where a body’s independence is secured and where the body is protected from political interference, those who work for that body often grow in confidence and often begin to embody the values of that body. The pride and respect that comes with such a position often assists an individual to act in a manner not expected by those who might have appointed the person.

I recall the words of an apartheid era Minister of Justice who at that time appointed South Africa’s judges and who complained that “the problem with these judges is that once appointed they think they have been appointed on merit and start thinking for themselves”. Hopefully the members of an independent corruption fighting body will have the integrity to follow this route.

Meanwhile the ball is back in the ANC government’s court. Only time will tell whether it will try to circumvent the judgment with cosmetic changes to the existing legislation or whether it has also realised that corruption — whether committed by an ANC leader, a white businessman or someone who has donated pots of money to the governing party — disproportionally disadvantages the poor and will, if not checked, fatally undermine the credibility and legitimacy of the ANC government.

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