Why SA needs an independent anti-corruption agency

GGA’s Karam Singh with Jeremy Maggs on Moneyweb@Midday. 

You can listen to this podcast on iono.fm here.

The real challenge that we have in the fight against corruption is that we don’t have an independent anti-corruption entity which is outside of this executive control,’ says Karam Singh of Good Governance Africa.

JEREMY MAGGS: Now this is a story that has been front and centre in the news for a long time, and now the departure of IDAC’s (Investigating Directorate Against Corruption) leadership is prompting calls for the corruption-fighting unit to be completely reset.

But Karam Singh, who’s head of liaison and advocacy at Good Governance Africa, is arguing that replacing leaders or simply repairing Idac is not going to defeat the powerful networks behind systemic corruption.

He goes on to say that South Africa needs a fundamentally different and genuinely independent anti-corruption architecture. He joins me on the programme now. Karam, welcome to you. So why is simply fixing Idac not enough?

KARAM SINGH: Thanks so much, Jeremy. Well, I’m trying to go back through my history and understand how IDAC was created.

If you look at when Cyril Ramaphosa becomes president in 2019, there is a clamour, in the wake of state capture and the capture of the criminal justice sector, to show that we’re doing something in the fight against corruption, and that the Independent Directorate gets created within the NPA (National Prosecuting Authority).

Now, the whole logic of the Independent Directorate is this idea that we have specialised prosecution-led investigations, particularly in terms of the fight against corruption – this is the gap that’s been left by the Scorpions.

Now, as I see it, the process to create Idac ultimately is a half measure. It’s something which falls short of best practice, of what we understand, even what the Constitutional Court has told us in the Glenister judgment in terms of what’s required for South Africa.

We need an end-to-end comprehensive anti-corruption agency.

Independent directorates situated within the police, which has to go through its own process of reform, or the NPA, which also has to go through this renewal process now, is only going to be a stopgap. It’s not going to be the kind of comprehensive response that’s required to deal with the kind of grand corruption threat that we sit with.

JEREMY MAGGS: Let me come back to the proposed anti-corruption agency. But the weaknesses in IDAC itself, as you outline to me, could they not simply be corrected through new legislation?

KARAM SINGH: There are issues around the fact that Idac resides within the NPA. Now, there’s been a long battle that the NPA has had around its own independence and the fact that it falls under the Department of Justice, it doesn’t have control over its own budget.

It’s not its own accounting officer. The accounting officer is the Director-General of the Department of Justice. Idac is even once removed within that because Idac is a substructure within the NPA.

So what’s being discussed in terms of the reset?

Okay, we’re stuck with the IDAC now, we have permanent legislation. So the process of renewal has to happen. There has to be a review of the leadership.

But fundamentally, there are no special measures around who gets appointed to be head of IDAC. There are no special measures which talk about how the head of Idac would be removed. These are all processes which are subject to executive control.

This is the real challenge that we have in the fight against corruption, is that we don’t have an independent anti-corruption entity which is outside of this executive control.

So the executive, when push comes to shove, we have a crisis. Let’s reset, let’s parachute new leadership in.

We saw this challenge with the appointment of the National Director of Public Prosecutions. We had an independent panel. They couldn’t recommend a name. So the president then plucks a Advocate Andy Mothibi from the SIU (Special Investigating Unit), who’s subject to retirement in a couple of years because of age limits.

Listen/read: Can the new NPA leader restore confidence in prosecutions?

So it seems very piecemeal, our approach to fighting corruption, it’s not consistent with what’s in the National Anti-Corruption Strategy. It’s not consistent with the recommendations from the National Anti-Corruption Advisory Council, and it’s in tension with the recommendations from the Zondo Commission.

JEREMY MAGGS: So the proposed anti-corruption agency that you’re suggesting, would giving one body investigative as well as prosecutorial powers, not, Karam, create something of a dangerous overreach?

KARAM SINGH: Of course, and I think this is really the challenge that we sit with, Jeremy. Why are we not embracing this big idea? Because we’re reticent.

We’ve seen the criminal justice sector susceptible to capture. There’s no doubt about it, this is going to be a continued battle in terms of our building our democracy, building effective institutions, their vulnerability to capture.

So then, what structures do we put in place to make them less vulnerable? We ensure that there are special procedures around the appointments of the leadership.

We make sure that there are special procedures around the dismissal of that leadership. We make sure that there are rigorous lifestyle audits and internal integrity, so that there’s an integrity standard, and we make sure that there is effective oversight.

Can there still be abuses of power within that type of a system? Absolutely.

I’m not naive to say that the challenges of IDAC go beyond the challenges of institutional design, because we’re still dealing with individuals, and individuals can abuse their power.

JEREMY MAGGS: I understand the criticism and I understand the proposal. But are you also not dismissing some of IDAC’s achievements?

KARAM SINGH: Let’s talk about IDAC’s achievements. There have been a number of high-profile corruption cases which have been enrolled. We saw some significant progress in an early case with the VBS (Venda Building Society) case. But many of the other cases have stalled.

Are there other particular achievements that you’re thinking about, Jeremy, that I’m overlooking? Has the needle been moved by Idac’s approach to fighting corruption?

The SIU, to me, looks like a more effective agency in terms of asset recovery. If you look at the amounts of assets which have been recovered [due to] the Special Tribunal. I think we can call that significant.

But if we look at the high-profile prosecutions which we were promised after the Zondo Commission, they’ve really been few and far between. I don’t know if that’s purely on IDAC’s bat. I’m not saying that Idac is completely rotten.

I’m saying that IDAC was a half measure when it was put in place, and it doesn’t actually grasp the nettle in terms of what’s envisioned in terms of an institutional realignment to effectively deal with the grand corruption challenge that we sit with.

JEREMY MAGGS: The new anti-corruption agency aside, and this is a last question to you, be that as it may, there’s been a lot of mess around this whole issue. In the short term, in the immediate term, is there any reform that government could implement to prove right now that it’s serious about defeating kleptocracy?

KARAM SINGH: I think it’s important that there is some transparency around the reset, around the leadership of the criminal justice system. So we still have to see the Madlanga Commission play itself out.

But I think in terms of the lifestyle audits that we expect of the leadership and the fact that that’s made available to us, that that’s a transparent process. I think that would go a long way.

Read: The endless capture, flirting far too dangerously with national security

But I’m not an advocate, Jeremy, for silver bullets, whether it be reform of the public procurement system, which is not a short game, whether it’s ensuring that we have effective protection for whistleblowers, which, again, is not low-hanging fruit, or we deal with this institutional architecture question in terms of the establishment of an appropriate law enforcement response.

I don’t think that there are any quick wins, right, that show us that there’s the effective political will to drive this thing.

It’s going to be something which is going to take time. But we do need greater indications that there is the political will to take on the challenge, and that, I think, is in doubt at the moment.

JEREMY MAGGS: Thank you very much indeed. I’m going to leave it there. Karam Singh is head of liaison and advocacy at Good Governance Africa.

You can also listen to this podcast on iono.fm here.