Proposed anti-graft body ‘will lack independence’

Proposed legislation to create an anti-corruption body is inadequate since it would be housed within the National Prosecuting Authority (NPA), which isn’t independent, MPs were told on Wednesday.

The bill was drafted by the department of justice after a recommendation by the Zondo Commission of Inquiry into State Capture to create a permanent body to probe and prosecute corruption cases.

There have also been numerous challenges in the Constitutional Court after the Scorpions specalised crime unit was disbanded in 2009, culminating in the apex court obligating the government to create a body that would be independent, have security of tenure and other means to operate without political interference.

The bill seeks to create an Independent Directorate Against Corruption (IDAC) that would be housed within the NPA and is now before parliament’s justice portfolio committee, which heard submissions from various public bodies.

Most expressed concern the proposed unit wouldn’t meet the independence concerns raised by the Zondo commission or the obligation imposed by the Constitutional Court in a 2011 judgment known as Glenister II.

AfriForum noted the bill has a “lack of provisions to insulate the NPA from political influence”, given the NPA’s relationship to the justice department, which is part of the national executive.

Jean Redpath from the Dullah Omar Institute said the NPA is hamstrung by law to go “cap in hand” to the justice minister for funding, which also limits its independence.

Tyla Dallas from the FW De Klerk Foundation also questioned the NPA’s independence, pointing out that the accounting officer of the NPA is the directorgeneral of justice.

Accountability Now’s Paul Hoffman argued the NPA “is not independent” and is “infested with saboteurs”. By housing IDAC within an NPA that is not itself independent, the IDAC might be subject to political interference, he said.

Hoffman supported the need for “anti-corruption machinery”, but recreating the Scorpions — which would be the effect of the IDAC — would merely recycle history, he said.

The Scorpions were disbanded by a simple majority in parliament, highlighting the body’s lack of security of tenure.

There was little point in setting up a corruption unit that might investigate, for example, powerful politicians, if those politicians have the power to disband the unit investigating them, Hoffman added. That this is exactly what could happen with IDAC in its current form, he said. Hoffman argued such a unit should have the same independence as, for example, the public protector’s office and the auditor-general.

Portfolio member Glynnis Breytenbach expressed reservations, too, asking Hoffman why the bill is still being “clung” to by so many. Hoffman replied that it was “governance by sleight of hand”, designed to “make the executive look good” as though they were fighting corruption, but the proposed legislation is “not constitutionally sound”.

Luthando Vilakazi of Open Secrets pointed out that the perception of independence for prosecuting authorities is just as important as legal independence. That is not entrenched in the bill as it stands and parliament should reject it, she added.

For example, Vilakazi said the proposed complaint mechanism for IDAC involves the appointment by the justice minister of a retired judge. But by having the minister involved, “there is an opportunity for undue political influence”.

The NPA itself had concerns, saying the language in the bill provides little discretion for its national director when dealing with certain issues about investigators’ security clearance.

As it stands the director will be obliged to remove the investigator if their clearance were challenged. The NPA noted this could be “weaponised” by powerful people

While the NPA was involved with drafting the bill, the proposed law was done primarily by the justice department.

The second public hearing, where the justice department will respond, is scheduled for November.

THE BILL SEEKS TO CREATE AN INDEPENDENT DIRECTORATE AGAINST CORRUPTION TO BE HOUSED IN THE NPA