As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
I am currently reading Michela Wrong’s brilliant but depressing, It’s Our Turn To Eat, the story of John Githongo, the Kenyan whistle-blower who took on the government of President Mwai Kibaki, whose members were turning out to be just as deeply mired in corruption as the outgoing government of former President Daniel arap Moi. The book shows what happens if the ruling political class of a country becomes enmeshed in endemic corruption and how difficult it is to turn back the tide of corruption once it has engulfed the ruling party and its leaders.
The members of the elite are usually bribed by members of local big business or by foreign businessmen and women, out to make a fast buck at the expense of the poor. The corrupt political elites make obscene amounts of money while the business elites rake in huge profits by providing shoddy products and services (from houses, to building leases, to medical supplies, to computer equipment) at hugely inflated prices – all because they had paid the requisite bribes to the ruling party or the relevant leaders of that party.
The voters (and especially the poorest voters who have no political connections and who rely on the government to provide it with basic services and opportunities to enhance their life chances) end up suffering while their leaders flaunt their money by buying Rolex watches, expensive cars and gaudy three story faux Tuscan Villas that resemble badly made children’s birthday cakes. (In one poignant scene Githongo relates how it took just three months before the newly installed Kibaki was spotted with a brand new Rolex watch, a sure sign that corruption has set in, according to him.)
It becomes almost impossible to stop this tide of corruption because of an absence of truly independent institutions with the requisite power to investigate and prosecute corruption at every level. If corruption goes right to the top, and if those at the top know that they are protected from criminal investigation or prosecution because they control the police, the intelligence services (who can be relied upon to launch smear campaigns against anyone who asks too many questions or can intimidate and blackmail those who wish to fight corruption) then there is no way that corruption will be stopped. When one is safe in the knowledge that loyal lieutenants are in charge of the police, the intelligence services and any other corruption busting unit, then one can “eat” at one’s hearts content.
Of course, all the “eating” leads to discontent from voters, so a governing party, deeply mired in corruption, will then have to find scapegoats to blame for its shoddy performance and for the lack of service delivery brought about by their corrupt “eating” of state resources. One can blame the last remaining members of the former colonial elite who might be quite rich and might easily be painted as the original perpetrators of the injustices still suffered by the impoverished and unconnected citizens (especially if those colonial types have shown no remorse for their involvement in past injustice and no readiness to help build a new society, instead whining and moaning from the side-lines with a metaphoric white bread clutched under each arm).
One may also blame the Constitution or the judges who interpret and apply the Constitution and argue that these untransformed judges and a Constitution imposed by the colonists are to blame for the slow pace of change. One can blame the opposition party who, instead of loyally trying to help solve problems, moan and complain in a most disgracefully disloyal and unpatriotic manner. Or one can try to redirect the anger of voters to unpopular groups in society: gays and lesbians; foreigners from elsewhere on the continent, Jews or Indians.
It is in this context that the abolition of the Scorpions, its replacement by The Hawks and the eventual decision by a majority of judges of the Constitutional Court declaring invalid the creation of The Hawks must be seen. Although the majority judgment is probably not the best argued judgment ever delivered by the Constitutional Court, it does attempt to grapple with the problem of how to fight corruption in a country where loyalty to the ANC might well mute most attempts by crime fighting bosses to engage in a fearless fight against corruption – even if the corruption leads to the highest level.
The Constitutional Court reminded us that only an independent body – one that is viewed as independent and is indeed independent – would stand a chance of fighting corruption.
Thus the majority judgment 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”.
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.
It therefore came as a surprise to read that the proposed amendments to the South African Police Service Act purporting to give effect to the Glenister case does not remove the power of the politicians over the “new” body. Instead, it seems to grant more power to the Minister of Police (and more worrying, to the Intelligence Services) to Appoint and fire the head of the “new” unit.
In terms of this draft law the Minister appoints the head of the Directorate, who can investigate corruption but “subject to policy guidelines issued by the Minister and approved by Parliament” This means that the politicians will in effect control the kind of cases that the new unit will be able to investigate.
The Minister may suspend and ultimately fire the Director on the basis of relatively objective criteria such as misconduct, ill-health and him no longer being a fit and proper person, but also for a completely vague reason that he or she can no longer fulfil the duties of the office efficiently. Incidentally this section is headed “loss of confidence in the Head of the Directorate” which gives the game away: if the Minister no longer has confidence that the Director will investigate the “right” types of corruption and not the “wrong” types of corruption, he will be done for.
The Intelligence Service is also given powers to grant or withdraw security clearance to anyone working at this “independent” body. If clearance is withdrawn that person will no longer be able tow ork for the independent corruption fighting body. This means that the politician who controls the intelligence services (in our case this will be the President) will be able to make sure that no investigator in this “independent” unit will make too much trouble for those who are too well-connected or too close to the President himself.
The members of the “new” “independent” Directorate also remain members of the South African Police Service with all the duties of a normal Police officer.
After a first look, these proposals do not seem to come near to meeting the requirements for an independent corruption fighting unit as set out by the majority in the Glenister case. Of course, the truth of the matter is that if the corruption goes right to the top and if the intelligence services are in on the “eating” then it will probably make very little difference what “independent” corruption fighting body is created as it will not be able to fight the endemic corruption engulfing the governing party and the state.
The sad fact is that we will know that we are at that point when the scapegoating of the Constitution or other easy targets like foreigners or gays and lesbians by the ruling party reaches such a crescendo that it cannot but be an excuse to hide behind to evade responsibility for its corrupt governance. I leave it up to readers of this Blog to decide for themselves whether we have reached or are about to reach that point in South Africa.
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