Our own Olivia Pope won’t end corruption

Last week the Constitutional Court confirmed that Parliament had failed to comply with its previous judgment on the unconstitutionality of the legislation that created the Hawks. But the court also reminded us that no amount of legal tinkering could guarantee the unit’s effectiveness in combatting corruption. Institutions do not (on their own) stop corruption. People do.

When Parliament abolished the Scorpions because it was foolhardy enough to pursue corruption charges against President Jacob Zuma and other high profile politicians and replaced it with the Hawks, the move was met with shock and outrage by many of the same people who watch and enjoy the questionable actions of Olivia Pope in the television series The Fixer (Scandal in the US) and the depraved behaviour of Frank Underwood in the House of Cards.

It is as if people believed that an institution like the Scorpions could single-handedly end the culture of patronage that has become entrenched in our political system. The recent judgment of the Constitutional Court in Helen Suzman Foundation v President of the Republic of South Africa and Others; Glenister v President of the Republic of South Africa and Others reminds us that a corruption fighting body (as well as the courts) – while playing an important role – can only do so much to stop corruption.

The most telling aspect of the judgment can be found in an “End Note”, penned by Justice Johan van der Westhuizen in his partly concurring judgment.

Justice Van der Westhuizen acknowledges that corruption “threatens the very existence of our constitutional democracy” and that effective laws and institutions are needed to combat corruption. The Constitutional Court therefore has a duty to “ensure that legal mechanisms against corruption are as trustworthy and tight as possible”.

But courts can only do so much. A corruption-free society can only develop in the hearts and minds of its people – particularly the ones occupying positions of political and economic power. We need dedication to the spirit and high aspirations of the Constitution. Institutions are tools designed to help people realise their ambitions.  Much dedication is required on the part of those handling the tools.

As Justice Van der Westhuizen points out:

[E]ven the most sophisticated institutional design will require the exercise of discretion and therefore integrity on the part of – and trust in – the office-bearer. Thoroughly closing all perceived loopholes will guarantee little. The more procedures and processes we put in place to safeguard against corruption, the more plausible deniability we give to a corrupt actor if all the technical boxes have been ticked. Generally, abstract institutional designs cannot be corrupt. As we know, people can be.

These words should not come as a shock to those who have watched Olivia Pope strut around in her beautiful white dresses “fixing” other people’s problems by delivering stirring speeches, drinking many large glasses of red wine, her bottom lip occasionally quivering with emotion, while her murderous daddy goes around subverting the rule of law in between lecturing Olivia about how political power actually works.

If I understand Justice Van der Westhuizen correctly, he is saying that while institutions like the Scorpions or the Hawks could help to fight corruption if they were adequately independent, it is only when voters start punishing politicians and the parties they belong to for being corrupt or for not taking decisive action against their colleagues in their respective parties who are corrupt, that there would be a real incentive to end the scourge of corruption. The most effective mechanism to fight corruption is the democratic process itself.

But that depends on voters making the connection between the corruption (in both the public and the private sector) and their own circumstances; the lack of access to clean water or adequate toilets, the absence of decent housing, the long queues at the state hospital, the rude and inefficient service at the municipal office, the power cuts, the rubbish that remains uncollected in the streets.

This does not mean that an “adequately independent” corruption fighting body could not help to expose corruption. For this reason the Constitutional Court (in a majority judgment authored by Chief Justice Mogoeng Mogoeng) confirmed the unconstitutionality of several sections of the legislation relating to the establishment of the Hawks.

This legislation was amended by Parliament in a failed attempt to give effect to the Constitutional Court’s previous decision declaring aspects of the legislation unconstitutional for not creating and adequately independent corruption fighting body.

When a Bill purporting to give effect to the first Constitutional Court judgment was initially tabled in Parliament, it displayed little enthusiasm for the creation of an independent corruption fighting body.

It was not only that the “quality of the drafting could use some improvement” – as Justice Mogoeng wryly remarked – but also that the original draft did everything to ensure that the politicians remained in control of the Hawks and that the body would not be able to act independently from some of those it may have to investigate.

To its credit the Portfolio Committee fixed many of the clearly unconstitutional aspects of the draft Bill after several experts (full disclosure, I was one of those so called “experts”) pointed out that the draft legislation would never pass constitutional muster.

But, sadly, the Portfolio Committee ignored some of the important points raised during the deliberations, which has now led the Constitutional Court declaring invalid several sections of the legislation dealing with the establishment of the Hawks.

The Court examined each of the impugned provisions to determine whether they militate for or against a corruption-fighting agency, which, though not absolutely independent, should nevertheless be adequately independent in terms of both its structure and operations.  It used the following test to do so:

We say merely that public 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.

The majority of the Court declined to declare invalid the section of the law dealing with the appointment of the National Head of the Hawks by the Minister of Police after approval by the Cabinet (Cameron J in a dissenting opinion argued that the section was indeed unconstitutional). However, Chief Justice Mogoeng did provide an interpretation of the section that limits the discretion of the Minister and the cabinet to appoint the Head of the Hawks. The Court emphasised that only a “fit and proper” person could be appointed which means:

that the candidate must have the capacity to do the job well and the character to match the importance of the office.  Experience, integrity and conscientiousness are all intended to help determine a possible appointee’s suitability ‘to be entrusted with the responsibilities of the office concerned’. Similarly, laziness, dishonesty and general disorderliness must of necessity disqualify a candidate…. Since inconsequential experience and character flaws could not have enhanced the prospects of her appointment to that office, if she was nevertheless appointed, then a successful legal challenge may be mounted against that appointment.

The Court did invalidate the provision that allowed the Minister to renew the term of office of the National Head of the Hawks as this would clearly have compromised the independence of the unit. It also declared invalid sections of the law that would have empowered the Minister to suspend and eventually remove the National Head of the Hawks without any involvement of Parliament.

Other provisions of the Act, which gave far too much power to the Minister to decide which crimes could and could not be investigated by the Hawks and how it had to operate, were also declared invalid. The involvement of the Minister, said the Court, would have rendered:

the anti-corruption character of the [Hawks] dependant on whatever the Minister, in the exercise of her discretion, wants it to be.

This would not have been in accordance with the requirement to create an adequately independent corruption fighting body.

The judgment represents delicate balancing act. It is careful to respect, as far as possible, the policy choices made by Parliament, while protecting the “adequate independence” of the Hawks.

Whether this judgment will ultimately bolster the independence of the Hawks will depend to a significant degree on whether the National Head of the Hawks and those working for the unit are prepared to act in a fearless manner to fight corruption no matter where it might be found.

Even the most honest and diligent person would find this difficult to do – unless he or she can depend on support of those in power and, ultimately on that of ordinary voters; the very people who will be directly affected by corruption.

This suggests that until such time as an overwhelming majority of voters reject all forms of corruption – even when this is committed by a politician belonging to the political party they support or by a business leader they respect – the Hawks will not be able to turn the tide against a phenomenon that “threatens the very existence of our constitutional democracy”.

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