The justice minister’s approach to the reform of the criminal justice administration is based on a false premise and misreading of the seminal “Glenister 2” findings of the Constitutional Court (“Progress being made to establish ID as permanent structure, says Lamola”, February 6). The majority judgment in that matter, penned by then deputy chief justice Dikgang Moseneke and justice Edwin Cameron, lays down the law in terms that bind government.
The false premise is that independence is the applicable criterion. It is not. The Scorpions were adequately independent but that did not prevent their demise. The relevant criterion is the security of tenure of the state’s anticorruption apparatus. The Scorpions lacked this vital quality, and the proposed new permanent Investigating Directorate (ID) will also lack it if it is established as a permanent structure through ordinary legislation.
Its fate could be no different to that of the Scorpions if the presidential announcement you report on is acted on by parliament. The president can correct the misunderstandings and wrong approach in his state of the nation address this evening.
The misreading of Glenister 2 is apparently because the speech writer of the minister has misconstrued the main judgment as the majority judgment, when in fact it is the minority (non-binding) judgment of the court. The Zondo commission made a similar error in the first tranche of its report, but corrected it in a later tranche.
It is to be hoped that the errors pointed out above will be addressed in the policy planning of the government and National Anti-Corruption Advisory Council. Secure tenure of office is one of the binding criteria laid down in Glenister 2.
A reincarnation of the Scorpions effected by establishing the ID as a permanent structure via ordinary legislation will be a false, and indeed unconstitutional, step in the reform process and will not assist in getting on top of the systemic corruption that is sucking the life out of the country and sabotaging constitutionalism under the rule of law.
The entrenched position of Chapter Nine institutional status is preferable, despite the capture of some existing institutions. Both the DA and the IFP favour the Chapter Nine route.
Paul Hoffman, SC
Accountability Now
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