In her recent media release announcing the beginning of the parliamentary process that will involve a constitutional amendment aimed at creating a body for countering corruption effectively and efficiently, the sponsor of the legislation so sorely needed, Glynnis Breytenbach of the DA, ends with this flourish: “After the madness of the ‘state capture’ years, the effects of which we are still feeling, it is high time that we take our country’s battle against corruption to a higher gear. By creating a new unit, expertly staffed and fully independent, with the same status as the auditor-general or the public protector, we can tackle these high-level crimes head on and further strengthen our democracy free of corruption.”
The bills are the first fundamentally honest parliamentary initiative to deal appropriately with the wise words of the Constitutional Court in the second Glenister case way back in 2011. The ANC tried to make do with the introduction of the Investigating Directorate Against Corruption (Idac) in May this year. It is a less than constitutionally compliant shadow of what the DA has in mind with its Anti-Corruption Commission (ACC).
The government of national unity (GNU) was formed on the premise that it is obliged to uphold the constitution and the rule of law. The Glenister decision is binding on it both under section 165 of the constitution and by the judicial precedent so created.
In the judgment, the court laid down the law in the following terms: “As we have already pointed out, corruption in the polity corrodes the rights to equality, human dignity, freedom, security of the person and various socioeconomic rights. That corrosion necessarily triggers the duties section 7(2) imposes on the state. We have also noted that it is open to the state in fulfilling those duties to choose how best to combat corruption. That choice must withstand constitutional scrutiny.
“And, even leaving to one side for a moment the republic’s international law obligations, we consider that the scheme of our constitution points to the cardinal need for an independent entity to combat corruption. Even without international law, these legal institutions and provisions point to a manifest conclusion. It is that, on a common-sense approach, our law demands a body outside executive control to deal effectively with corruption.”
At present, no such body exists.
This lacuna in the application of the law is a glaring failure on the part of two Jacob Zuma administrations and one Cyril Ramaphosa administration, during the fourth, fifth and sixth parliaments, to obey the rule of law. It also reveals a failure on the part of parliament both to ensure executive accountability and to maintain proper oversight of the remedial legislation that the court requires: a body outside executive control.
The Breytenbach private member’s bills seek to address these failures in a constitutionally compliant manner. The two bills are based on suggestions made by Accountability Now in August 2021, a year after the ANC national executive committee (NEC) futilely instructed cabinet to establish an independent, permanent and stand-alone entity to deal with serious corruption. In short, an entity of the kind envisaged by the planned ACC, which would join the auditor-general and public protector as a bulwark against serious corruption.
For Breytenbach’s bills to become law, it will be necessary for at least two-thirds of MPs to vote in favour of them. This special majority vote is a constitutional requirement for the amendment of chapter 9. As the ANC has 40% of the seats in parliament it is in a position to block the bills, despite the fact that they come from the ranks of a coalition partner in the GNU.
It is fervently hoped that all political parties represented in parliament support the bills. Not to do so would invite the well-founded criticism that the naysayers are soft on corruption or, more to the point, willing to protect the corrupt from the consequences of their crimes. A vote against the bills will extend the life of the culture of impunity around corruption that has been a hallmark of governance and life in SA for far too long. Look no further than the inexplicable dropping of charges against former cabinet minister Zizi Kodwa by the Gauteng director of public prosecutions, Andrew Chauke. The decision is under review by his boss.
Recently John Steenhuisen, leader of the DA, let it be known that the DA wouldn’t leave Ramaphosa’s unity government “unless it is crashing the economy or trashing the constitution”.
The GNU to which Steenhuisen refers is, in reality, a 10-party coalition of political parties that are represented in the National Assembly. Nine of these responded positively to the invitation extended by the ANC after the May 2024 general elections, an invitation that expressed the intention to govern under the rule of law and in accordance with the constitution.
Several parties did not accept the invitation, principally the MK party, the EFF and Action SA. They now form the opposition in parliament, with disgraced former judge John Hlophe as leader of the opposition in the National Assembly. The DA is the second-biggest party in the GNU, which means that without it the GNU would cease to function, thus precipitating either fresh coalition negotiations or, if they fail, an early general election to deal with the hung parliament that is the outcome of the May 2024 general elections.
The ANC’s invitation to join the GNU made no reference to the ANC’s long-established guiding lights: the tenets of the national democratic revolution (NDR), according to which it has always sought to establish “hegemonic control of all the levers of power in society”. Any initial hopes that hegemonic control is no longer on the agenda of the ANC have been dashed by the announcements made after its NEC meeting over the last weekend of October 2024 in Boksburg. The ANC is intent on educating its membership in the fundamentally unconstitutional ways of the NDR.
Steenhuisen is right to be concerned that the economy is on a crash course under ANC influences. The Financial Action Task Force (FAFT) will not remove SA from its greylist while corruption with impunity continues in SA. Idac is not in a fit state, both structurally and operationally, to end the impunity of the corrupt. The ACC is an alternative to Idac that is far more likely to impress the FAFT favourably.
As for the concerns that the ANC is trashing the constitution: there have already been clashes around contentious provisions in the Basic Education Laws Act and a battle royal over the ANC’s introduction of the National Health Insurance legislation just before the elections. The latter turned out to be a failed attempt to attract more votes, which backfired when those who value private medical aid dumped the ANC.
Those voters who would prefer to live their lives in a corruption-free country will also dump any party that is so ill-advised as to vote against the two bills that are aimed at the establishment of the ACC.
At a most fundamental level, support for the ACC signals a willingness to take the international treaty obligations shouldered by SA more seriously. These obligations, which are to establish and maintain independent anti-corruption machinery of state, have for too long been honoured in the breach. The government is bound by the findings of the Constitutional Court quoted above. It is accordingly obliged to set up and empower “a body outside executive control” to counter the corrupt. Idac is firmly under executive control, whereas the ACC will not suffer that debilitating disability.
If the litmus test of the longevity of the GNU is whether the ANC is trashing the constitution, its failure to support the formation of the ACC will light up the litmus like a Guy Fawkes bonfire.
• Hoffman is a director of Accountability Now. He was lead counsel in the Glenister litigation.
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