Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
22 March 2011

Scorpions was not truly independent

One should, of course, not expect politicians always to make logical arguments and to act rationally and consistently. South Africa’s confusing and ever-changing stance on Libya is a rather embarrassing case in point. One would also be over-optimistic if one expected our elected representatives always to act in a consistent and logical manner. Often what politicians say they believe and what they actually believe and do is not the same thing.

(For example, almost all our politicians profess to want to serve the poor, but some believe they can do that task so much better if they drove around in R1.2 million luxury German cars and live in the lap of luxury in 5 Star Hotels at taxpayers expense, while others endorse government policies and actions – including water and electricity cut-offs and forced evictions – that are decidedly anti-poor.)

Sometimes the reasons the politicians present to justify their actions actually do the opposite of what they were supposed to do. When one studies the reasons provided by politicians to justify their actions one is often left with the feeling that the politicians are so brazenly disrespectful of citizens that they do not even bother to cover up their lies and deceit with even halfway credible justifications. The tawdry saga of the scrapping of the Scorpions and the creation of the Hawks perfectly illustrates this rather sad point.

In the Glennister judgment the majority of judges of the Constitutional Court found that our Bill of Rights placed a positive duty on the state to create an independent corruption fighting body. The Hawks, the court found, was not such an independent body. Of course, the Hawks we were told, was an independent body that would truly help us win the battle against corruption. We now know that these claims were far from true.

During debates about the scrapping of the Scorpions at least two arguments were used by the politicians to justify the replacement of the Scorpions with the Hawks. Although almost all of us knew that the move was nothing but a self-serving attempt aimed at protecting corrupt politicians from criminal sanction, few of us actually called out the politicians for these shameless lies they were peddling.

First, it was argued that it was not constitutionally tenable that a body investigating crime should be situated in the National Prosecuting Authority (NPA) as the Constitution clearly created a separate police force and prosecuting authority. Having a unit in the NPA involved in investigating crime was therefore constitutionally problematic as prosecutors should prosecute and police officers should investigate crime.

However, the amendments to the South African Police Services Act declared invalid last week contained provisions that made a mockery of this argument. Section 17F(4) stated that the National Director of Public Prosecutions “must ensure that a dedicated component of prosecutors is available to assist and co-operate with members of the Directorate in conducting its investigations”. The Hawks therefore in effect also has prosecutors helping it to investigate so-called priority crimes – the very evil the politicians told us had to be addressed by the creation of the Hawks.

This suggests that the politicians were lying when they assured us they were animated by high principle when they abolished the Scorpions. Nothing new there, you might say. After all, a former Premier of Mpumalanga once admitted (rather candidly) that politicians always lied, so we should not be surprised when the assurances given by politicians turn out not to be true.

Second, the argument was advanced that the Scorpions had become a law unto itself and had been abused by politicians who used the Scorpions to target some but not other politicians. President Mbeki, so the argument went, used the Scorpions to target Jacob Zuma, but this was unfair because many politicians had done corrupt things but only a few like Zuma were targeted by the Scorpions.

Politicians pointed to the illegally obtained (and perhaps illegally made) recordings of telephone conversations (intercepted by who knows whom) which purported to show that discussions were held about the best political timing to charge then Mr Jacob Zuma with fraud and corruption, to back up this argument that the Scorpions had been abused to eliminate Jacob Zuma from the race for the Presidency of the ANC.

I, for one, thought this argument might well have some merit. Because the National Director of Public Prosecutions (NDPP) is appointed by the President and because the NDPP also appointed the head of the Scorpions, questions could legitimately be raised about the independence of the person who headed the Scorpions and the NPA. Given the fact that the then President was involved in a rather dirty war with his deputy in the ANC for the top job of ANC President, and because the Scorpions selectively investigated and prosecuted corruption amongst politicians and well-connected South Africans, reasonable people could easily have concluded that the Scorpions were being manipulated by President Mbeki to achieve his personal political ambitions.

In fact, a judge of the High Court found as much, which led to the firing of Mbeki as President of the country. Although this judgment was rightly overturned on appeal, the fact that a judge of the High Court could make a finding of political interference suggests that a reasonable person could very well come to the conclusion that the Scorpions were not independent.  

One would therefore have thought that any honest politician would have done everything he or she could to create a truly independent body to fight corruption, a body that would not be open to any political manipulation by any politician – including by the President of the country. Sadly, this is not what happened, perhaps because the new President himself had been implicated in corrupt activities. 

As the Constitutional Court  pointed out last week, instead of creating a truly independent corruption fighting unit free from any potential interference by politicians, Parliament created the Hawks which were subject BOTH to the authority of the Commissioner of Police who is appointed by the President and whose term can be renewed by the President (if the Commissioner does what is expected of him by the President) AND to a Ministerial Committee who could decide what crimes to investigate and (more importantly) what crimes could not be investigated by the Hawks.

So, to stop the alleged political abuses associated with the relatively independent Scorpions, Parliament created a body that had absolutely no independence and could very easily be manipulated by politicians (the Ministerial Committee) to target political opponents inside and outside the majority party. This demonstrates the extent of the dissembling of the ANC dominated executive and Parliament who abolished the Scorpions and created the Hawks. They pretended to fix a problem by making it much worse.

What is to be done now? What should Parliament do to comply with the Glennister judgment? What it should NOT do is to resurrect the Scorpions as that body was not a very effective corruption busting institution at all.

Defenders of the Scorpions often argue that it was a successful and laudable body because it won more than 90% of the cases it brought to court. I am not so sure I share this benign view of the Scorpions. When one evaluates the effectiveness of a corruption fighting body one should look beyond its success rate in prosecuting those criminals it had decided to go after. Instead one must ask whether it had investigated and prosecuted all credible allegations of corruption with equal vigour and determination.

Clearly the Scorpions did not do this. Although the Scorpions went after Deputy President Jacob Zuma with admirable determination (and rightly so, given the fact that his financial advisor was later convicted of bribing him), it failed to pursue many other credible allegations of corruption, including allegations – never directly denied – that then President Thabo Mbeki had solicited arms deal bribes to pay for the ANC 1999 election campaign. Chippy Shaik, who was fingered in the JIP report and is widely believed to have benefited unlawfully from the arms deal was also not pursued. Allegations of corruption against other high ranking ANC leaders were never pursued or were dropped by the NPA for reasons that seem unclear.

What is required is the establishment of a completely independent body to investigate and lead prosecutions regarding corruption – regardless of whether the person involved is a police constable in Pofadder or the President of the country. Such a body would only be able to do this task properly if its head was NOT appointed by the President but was instead appointed by a two thirds or even 75% majority of members of the National Assembly. The head of this body would also need to have the power to appoint his or her own staff free from interference and political pressure.

The head of such a body should be accountable to Parliament but should be protected from interference by Parliament or the Executive. This means that the body should be empowered to decide for itself what cases to investigate and how to investigate them. The body should have broad search and seizure powers and other investigative powers and should be well financed and staffed so that it could pursue every complaint of corruption lodged with it by members of the public.

In the absence of such a body, we will not win the fight against corruption. At present the perception is that if one is politically well-connected one is protected from investigation and prosecution for corruption. The perception is that whether one is a Brett Kebble or a Jacob Zuma, a Julius Malema or a Gupta, one would never now be investigated and prosecuted for corruption – even if one had engaged in corrupt activities.

This perception may be wrong. Some or all of those mentioned above might not have been involved in corruption at all. But as the Constitutional Court found last week, a corruption fighting unit will only be independent if it is perceived to be independent. As long as ordinary people have the perception that some of our citizens are above the law and that a corruption fighting body would never investigate them, that would not be the case.

In any case, at present whenever a politician or well-connected individual is arrested for corruption, the first thing he or she usually says is that the arrest formed part of a “political conspiracy”. Although claims of such a political conspiracy is almost always laughable and usually means nothing more than that the person is guilty as sin, such claims have traction exactly because we do not have a truly independent body investigating corruption. And until we have a truly independent body to fight corruption they might even have some reason to believe the nonsense about political conspiracies.

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