President Cyril Ramaphosa signed off on the National Prosecuting Authority Amendment Act, 2024 (the Amendment Act) on 24 May. The Act brings the Investigating Directorate Against Corruption (IDAC) into being as a permanent statutory body under the National Prosecuting Authority Act, 1998. The IDAC’s mandate includes the investigation and prosecution of, among others, high-profile or complex corruption cases.
These cases may be referred to the IDAC by the national director of public prosecutions. Notably, they may also “arise from the recommendations of commissions of inquiry” — a welcome acknowledgement of the constitutional status of such commissions and the need to action their outputs appropriately. Indeed, the IDAC could very well commence its work by acting on the Zondo commission’s recommendations, which may perhaps finally see the main agents of state capture in orange.
What we do not need to see, especially in the current uncertain political environment, is premature criticism of this body’s capacity to combat corruption. Yet some have already questioned whether the IDAC has the requisite degree of independence, arguing that it is “a wholly inadequate and deeply unconstitutional response to the urgent need for radical reform … to counter serious corruption”.
This argument is premature and unfortunate. While “radical reform” to combat corruption is still needed, this does not negate the value of incremental reform — some progress always beats stalemate and, certainly, inaction. Even when it comes to basic human rights, the Constitution recognises that their realisation can sometimes be a “progressive” affair.
The IDAC should therefore be welcomed as one small but significant cog in the state’s corruption-busting machinery. It does not dismantle or displace other parts of this machinery. Nor does it prevent its future refinement and development, which may well entail the more “radical” addition of a constitutionally entrenched standing anti-corruption commission (ACC).
In the heated atmosphere of inter-party negotiations following the 29 May elections, it is easy to think that policy debates of this sort should be put on hold. After all, depending on the outcome of those negotiations, the political will to fight corruption may be entirely lacking or comprehensively revitalised.
In the latter event, the creation of the IDAC may seem like the feeble last gasp of a dying ANC-majority order — and so something that requires replacement as soon as possible. But the introduction of the IDAC is clearly much more than this. To argue otherwise confuses questions of fluctuating political will with more enduring and significant questions of the constitutional allocation of state authority, including that of the prosecuting authority.
Whatever the outcome of the current negotiations, it is doubtful that the Constitution, which impliedly entrenches the separation of powers, will be amended any time soon. None of the possible scenarios seems likely to result in the two-thirds majority required to achieve as much. The ongoing fight against corruption, whether government-led, civil-society-driven or both, will thus need to be waged using the existing constitutional, and regulatory, frameworks — at least for now.
As for the existing constitutional framework, it is finally being properly recognised as including a fourth “integrity and accountability” branch of state. This branch includes the likes of the corruption-busting or “watchdog entities” irrespective of whether they are constitutionally enshrined or merely constitutionally supported.
So, for example, in the 2020 Sonke Gender Justice case, the constitutional court struck down two sections of the Correctional Services Act, 1998, for insufficiently guaranteeing the independence of the Judicial Inspectorate of Correctional Services (JICS). The Sonke case built on the foundations laid a decade prior in the remarkable Glenister II judgment. In so doing, the court in Sonke went so far as to group the JICS, as a statutory prisons-watchdog, alongside the likes of, “the South African Human Rights Commission … the Electoral Commission, the Public Protector and the Independent Police Investigative Directorate”, as well as “the prosecuting authority”.
The court thus signalled the constitutional permissibility of creating independent integrity and accountability institutions through statute, but which should nonetheless fall under the fourth branch of state, and be respected as such. In line with this decision, the Amendment Act establishes the IDAC as a statutory body which, unlike its 2019 predecessor, is not an executive creation and thus cannot be executively extinguished.
While the IDAC, like any statutorily-created body, is vulnerable to legislative repeal, this is far less likely, and less worrisome, than the prospect of its dismantling through an exercise of executive discretion.
The establishment of the IDAC must be appreciated in light of related endeavours to strengthen the prosecuting authority’s independence, expertise and capacity. One such example is the new Corporate Alternative Dispute Resolution Policy — a sound and salutary effort that aligns not only with international best practice, but also with the prosecuting authority’s own commitment to being “effective” as a “public, representative service, which … must adhere to the highest ethical and professional standards.”
In short, it is wrong to dismiss the IDAC as a temporary, ineffective and constitutionally unsupported measure that must necessarily give way to a constitutionally enshrined anti-corruption commission. This is so for several reasons.
First, the political will for a constitutional anti-corruption commission might well prove lacking. In that event, it would obviously be better to retain the IDAC, and for minority political parties and civil society to actively support its effective functioning.
Second, in the event that the necessary two-thirds majority were to be achieved, thus enabling an amendment to the Constitution to provide for an anti-corruption commission, there is no reason the IDAC and the ACC could not complement each other. Corruption is a protean monster whose defeat requires multiple institutions working in a coordinated way.
Third, the arguments regarding the vulnerability of the IDAC to constitutional attack are weak. The IDAC does not have the independence deficiencies the Judicial Inspectorate of Correctional Services suffered. In Sonke Gender Justice this boiled down to the fact that the department of correctional services retained control of the JICS’s budget. It followed that the requirements of structural and operational independence needed for such “watchdog bodies” were not met.
This lesson was clearly taken on board when the IDAC was established. For example, concessions were made during the Amendment Act’s passage through parliament to bolster the independence of the prosecuting authority. Should these proposals be adopted, the Amendment Act has every chance of withstanding constitutional attack.
In summary, it is dangerous to talk of the constitutional vulnerability of a body like the IDAC in circumstances where the constitutional enshrinement of the anti-corruption commission is not a foregone conclusion. It is imperative that the IDAC be able to commence its work effectively. Deputy national director of public prosecutions Anton du Plessis has rightly noted that the IDAC is “required now… and we are totally comfortable with whatever broader reforms have to happen down the line”.
In his gracious post-election speech, Ramaphosa committed the ANC to “work together for the good of everyone … peacefully and in accordance with the prescripts of our Constitution and the rule of law”. That commitment, however, is assailed on all sides by populists who seek political power by promising the electorate quick-fix — and often impracticable — solutions. There are also those in the ANC who would support the party’s permanent re-orientation in a populist direction.
In this sense, the ANC is teetering on a narrow ledge, with contrasting options on either side. One — the populist option — amounts to an onslaught against the hard-won tenets of our Constitution and will surely lead to economic ruin, and the other — the rule-of-law option — opens a path to constitutional renewal. The ANC’s reasonable centrists are striving to find the right arguments to justify the latter option. At this crucial juncture, what they need is not partisan point-scoring, but intelligent support.
In relation to the IDAC, this means proceeding on the basis that our president signed the Amendment Act in good faith and in the interests of the country. More specifically — and in his own words — he did so to make the IDAC “a permanent, prosecution-led agency with full criminal investigative powers … to overcome challenges with capacity and expertise within the NPA”. We should take Ramaphosa at his word.
In relation to the current inter-party negotiations, this means encouraging the ANC to take a leap of faith from the “rule-of-law” side of the ledge. To quote the French poet, Appollinaire, this may just be the “push” the ANC needs to “fly” again – to become the party that fought for, and drove, the adoption of our supreme Constitution.
Lauren Kohn is a legal scholar and specialist in various public-law fields. She is Young Research Fellow of the University of Cape Town where she lectures in, among others, administrative and constitutional law. Kohn is also an admitted attorney of the High Court of South Africa. In furthering efforts to enhance integrity and accountability in the country, Kohn is spearheading the Law and Governance Academy of Southern Africa (LAGASA), which is in the process of establishment as an institutional PBO-project of the GI-TOC. Kohn’s first article on state capture redress is available here.
Theunis Roux is professor of law and head of the School of Global and Public Law at the University of New South Wales, Sydney. Before moving to Australia, he was the founding director of the South African Institute for Advanced Constitutional, Public, Human Rights and International Law.