The proposed anti-corruption unit to be housed in the National Prosecuting Authority (NPA) will be adequately protected and independent, despite concerns raised by various groups, including the NPA itself.
These were some of the points discussed by the justice department on Wednesday, in its presentation to the justice portfolio committee on the NPA Amendment Bill.
The bill’s primary focus is the creation of an anticorruption unit, known as the Independent Directorate against Corruption (Idac), housed in the NPA.
The Investigating Directorate (ID) does currently exist, which investigates and prosecutes anticorruption crimes noted in the state capture inquiry, such as the infamous R25m Vrede Dairy Farm project, involving Gupta-linked company Nulane Investments. The ID was, however, designed to be temporary. while Idac is meant to be permanent.
On Wednesday, the justice department — which drafted the bill to create Idac — was responding to criticism raised in last week’s committee session by various bodies, including Active Citizens Movement (ACM), the Helen Suzman Foundation (HSF) and the NPA.
Kalay Pillay, from the department’s legislative development unit, responded to ACM’s concerns that Idac’s head would be appointed from the NPA. ACM said that that “limits the talent pool to internal staff”, meaning “high-skilled and experienced anticorruption specialists” from outside the NPA, such as the private sector, would be excluded entirely.
In response, Pillay said this was somewhat inaccurate, noting that the first head of the ID, Hermione Cronje, was from outside the NPA. Cronje had worked in the NPA until 2012, but, at the time of her appointment in 2019, was part of a World Bank asset recovery and anticorruption initiative.
Many of the groups, including the Catholics Bishops Conference, Accountability Now and AfriForum, were concerned that keeping Idac within the NPA meant it would be accountable to the executive. Last week, for example, advocate Paul Hoffman from Accountability Now argued that the NPA “is not independent” and was “infested with saboteurs”. By housing Idac within an NPA that itself was not independent, Idac might be subject to political interference.
Pillay said creating Idac through legislation was “a significant step in creating a permanent structure within the NPA to drive prosecution-led investigation into corruption and to prosecute these offences”. Once passed by parliament, any amendment to Idac could only be done through legislative amendment processes, which requires a debate and voting. This helps create checks and balances. The current ID, Pillay noted, had no such protection.
The NPA is accountable to parliament directly in numerous ways, such as for removal of offices of NPA heads, remuneration, policies and regulations.
Jean Redpath from the Dullah Omar Institute said last week that the NPA must still go “cap in hand” to the justice minister, a member of the executive, for a budget. That, she said, undermined the NPA’s independence and would affect Idac. But Pillay said on Wednesday that the constitution itself set the budget framework for the NPA within the justice minister’s hands.
Importantly, Pillay noted that the criticism was considered by the Constitutional Court itself when it certified what would become the constitution in 1996. She also said budgetary considerations were not unilateral, in any event, but made in consultation with the NPA head herself.
Open Secret had a concern that Idac heads were appointed by the executive, which “weakens [Idac’s] autonomy” since politicians could appoint allies. Pillay said the current NPA Act already had “adequate safeguards” for removing directors of public prosecution, which is what the Idac head will be.
Pillay noted that the department agreed with a point raised by the NPA itself that, as the bill currently stood, it did not provide discretion to NPA heads when their employees’ security clearances were challenged. The bill originally said NPA heads were obliged to discharge an investigator if that investigator’s security clearance were withdrawn.
The NPA said an implicated and powerful politician could easily get someone’s security clearance withdrawn. Pillay agreed and new language was inserted to give the NPA head more discretion in protecting her investigators.
The department will finalise the bill for final presentation to the committee next week.
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