Principled, pragmatic law reform with promise

This piece is written in the spirit of public participation with a view to influencing legal development that is principled, pragmatic and accords with the government of national unity’s (GNU’s) express commitment to its foundational principles and basic minimum programme of priorities. These principles and priorities emphasise, among others: public integrity, accountability, professionalism, and community participation in government. 

The first development concerns the proposed establishment of a standing anti-corruption commission through an amendment to Chapter 9 of the Constitution. There is a Private Member’s Bill on this topic that is due to be introduced shortly in parliament.  While very welcome, the Bill cuts across the currently preferred multi-agency approach to combating corruption and needs to be rethought.   

This brings me to the second development, which necessitates prescient engagement: the unrelenting and misleading commentary insisting that, “any attempt to introduce a multi-agency approach [to tackling corruption] flies in the face of the binding precedents set in the Glenister litigation”. This assertion is legally incorrect and unfortunate, given good-faith efforts under way.

The third development arises from the judgment handed down by the supreme court of appeal on 14 August in SA Human Rights Commission v Agro Data CC (Agro Data). This case concerned the remedial powers of the Human Rights Commission (HRC) – established in chapter 9 of the Constitution as one of the state institutions supporting constitutional democracy. Regrettably Agro Data misreads, and thus misapplies, the emergent body of law (and legal literature) on South Africa’s integrity and accountability (I&A) fourth branch of state.

Given the implications of these developments for governance, it is timely to reflect on them in light of what the law actually requires, to quash any lingering legal misinterpretations, and guide law reform efforts appropriately. 

Before discussing these developments, let me start by outlining the applicable overarching legal principles. 

The Constitution’s structure read with its express textual indicators show that the drafters conceived of a fourth branch of state authority, even if impliedly so. In the South African context, this fourth branch is best described as the integrity and accountability (I&A) branch. 

The tendency to equate this branch with Chapter 9 is unfounded. The Constitution creates a host of other I&A bodies, which fall outside the textual ambit of Chapter 9, but which nonetheless fall under the I&A fourth branch. For example, it establishes the Judicial Service Commission, the Public Service Commission, the Financial and Fiscal Commission and the National Prosecuting Authority. 

None of these bodies can logically — nor, as a matter of proper, purposive constitutional interpretation — be lumped under the heads of “legislative”, “executive” or “judicial” authority. And yet, like the Chapter 9s, these I&A bodies operate at the same (horizontal) level of state authority as the traditional branches of state. They too exercise significant, if distinctive, macro public powers, which are not administrative action and which — like the legislative, executive and judicial powers — are instead subject to legality and rationality review. Much like the judicial power, the I&A bodies must also exercise their public powers with the requisite independence. This requirement is constitutionally signalled by phrases such as “act independently”; “subject only to the Constitution and the law; “without fear, favour or prejudice”; and the need for various of these bodies’ office-bearers to uphold oaths of office. 

The doctrinal detail of the Constitution’s unifying framework for the grouping of the I&A institutions falling under the fourth branch of state, as explained in my PhD thesis. For present purposes, it should simply be noted that contemporary, corruption-rife times reveal these bodies’ increasingly significant role in checking, balancing and redressing abuses of public power — and often in a complementary way. 

Such synergistic, inter-institutional checking is an ongoing, positive outcome of the state-capture saga. Thus, the erstwhile public protector, the judiciary, the Zondo commission of inquiry, and — since Ramaphosa took office as president — the likes of the National Prosecuting Authority (NPA), the Asset Forfeiture Unit (AFU), the Special Investigating Unit (SIU), as well as the recently established Investigating Directorate Against Corruption (IDAC), have shown the value of multiple checking institutions acting in a complementary, collaborative endeavour to ensure public integrity and accountability. 

This brings me back to the three interrelated developments. As for the first, we do need a permanent anti-corruption commission in Chapter 9 of the Constitution. This recommendation of the Zondo commission — refined as previously suggested — should be taken up by the legislature, particularly because the commission itself was an I&A commission of inquiry (COI) of the highest order. However, in proposing that the anti-corruption commission should have not just investigatory but also prosecutorial functions, the Private Member’s Bill in its current guise cuts across the existing multi-agency approach to combating corruption. To understand this issue, one needs to understand the constitutional scheme for such I&A commissions.

Both during their lifespan and after submission of their final report(s), I&A commissions must be recognised as falling under the I&A fourth branch of state and thereby afforded the requisite authority and respect. Equally, however, they too must respect the other branches and not overreach, striking a suitable balance between empowerment and restraint. Thus understood:– 

1. The outputs (recommendations) of such I&A commissions of inquiry must be appropriately engaged with.
2. As such, these recommendations may be binding on the relevant parties, in appropriate instances. 
3. COIs, properly established and run, exercise irreplicable public powers in the state system. Among others, they are valuable truth-seeking institutions that can deepen national unity, restore peace, further restorative justice and lay the necessary foundations for reform as well as retributive justice. 
4. On the latter, while COIs can, and should, expose (particularly, public) wrongdoing, they cannot make findings of fault in the civil or criminal sense — that is judicial terrain. Nor can they institute criminal proceedings, for that is the constitutionally ordained role of the NPA. 
5. However, where the reports of I&A COIs clearly reveal wrongdoing and recommend further investigation (by the likes of the NPA), it would typically be ‘appropriate’ for such recommendations to be treated as binding, unless or until set aside by a court on review. 

In my PhD I therefore provide a doctrinally defensible case to shatter the outdated orthodoxy set out in SARFU, a case from the bygone Madiba era, which emphasises the discretionary nature of this so-called head of state power pertaining to COIs. Such an appreciation of the nature of (I&A) COIs is no longer legally sound, nor defensible. The law must be context-responsive and context-directive; it must evolve, and do so in a clear, compelling and justifiable way. This brings me to the other two developments.

The second development is the misreading of the Glenister precedent. Adherence to legal precedent is important for it is fundamental to the rule of law itself. Relatedly, judicial precedent, as developed by the courts, must be correctly distilled and properly applied. The Glenister II precedent cannot be read as establishing a constitutional imprimatur to establish one, and only one, anti-corruption agency. On the contrary, the judgment explicitly refers to the plural terminology in discussing the independence requirements of oversight mechanisms.  This understanding of Glenister II has been repeatedly reaffirmed by the constitutional court. 

For example, in McBride, the constitutional court quoted from Glenister II in applying its factors to assess the independence of another oversight body, the Independent Police Investigating Directorate (Ipid). It held that insofar as this other accountability mechanism “is entrusted with wide-reaching police oversight powers, the same considerations [as those in Glenister II], at the very least, should be factored in when assessing its independence”. 

More recently, in Sonke Gender Justice, the court employed the Glenister II reasoning in underscoring its appreciation of the state’s multi-stakeholder anti-corruption, oversight and accountability arsenal. In this case, the Judicial Inspectorate of Correctional Services (JICS) was found to lack the independence needed of such an oversight body and, as in in Glenister II, the court drew on international law in noting that “the state has, for some time, contemplated the Judicial Inspectorate as one of several bodies that will function as part of a multi-body national preventive mechanism”. 

The bottom line is that a single-agency approach to preventing and tackling the beast of corruption is neither constitutionally required, nor constitutionally sensible. What is, however, constitutionally clear is that when it comes to the powers of the so-called oversight — and other I&A bodies — it will be appropriate for them to make binding remedial findings only where public power has been improperly exercised. This brings me to the third development, another constitutionally retrogressive one. 

This is the judgment of Agro Data, in which the court incorrectly found that the HRC can never issue binding remedial findings. This case concerned a purportedly binding directive issued by the HRC to private parties exercising their private powers as landowners. The directive mandated them to restore access to borehole water to occupiers of their property. While the outcome on the facts is correct — namely, the private respondents did not need to comply with this instruction by the HRC — it was reached pursuant to incorrect legal reasoning. 

This was, in the main, due to an improper interpretation of Chapter 9 of the Constitution and a misunderstanding of the Nkandla judgment. This judgment held that in “appropriate” instances, the public protector, and her sister institutions, may issue binding remedial findings. Whether this will be appropriate depends on the application of various factors, weighed in the balance, to the facts of a particular case. 

It is correct that the HRC should not be able to impose binding duties on private parties exercising private powers, properly construed. This is correct not because of the HRC’s form (or constitutional identity) compared with that of the public protector — an irrelevant consideration that distracted the court from the real inquiry. Rather, it is because of the nature of the power that is checked, balanced and redressed. All chapter 9 institutions — indeed, all I&A bodies — were created constitutionally equal and, as such, they may all in appropriate cases issue binding findings. The public nature of the power being checked is the key consideration that attracts the mediating disciplines of public law in this regard.

So, faced with these ‘developments’ where to from here? The GNU’s Statement of Intent (SOI) includes the express commitment to the foundational principles of human dignity, nation-building, peace, stability, accountability, professionalisation of the public service, and “integrity, good governance and accountable leadership”. This latter principle underscores my urge to couple public accountability with integrity, which is especially crucial at the level of institutional leadership. Given these goals, and the developments, what would be the best way of achieving them? 

First, we need to help our (strained) judiciary shift its reasoning from that of values and “the heart” of the Constitution — à la Glenister II — to that of rights-adjudication proper, which frees up space for the courts. State capture and corruption impede the people’s ability to live a dignified, peaceful and secure existence. In drawing inspiration from section 198 of the Constitution, I propose the following constitutional amendment to the section-10 right to human dignity:

(i) Everyone has inherent dignity and the right to have their dignity respected and protected. This includes, among others: 

a. the right to live free from fear and want and to be able to seek a better life; and

b. the right to live in a South Africa free of state capture and corruption, which is committed to the tenets of public integrity and accountability. 

(ii) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

Second, the Commissions of Inquiry Act should be amended to make explicit provision for those commissions that pertain not merely to matters of public concern but, moreover, concerns relating to public integrity and accountability. In my doctoral article (forthcoming), I show how and why the outdated legal position set out in SARFU must be surmounted, and set out a doctrinally defensible case for classifying certain COIs as I&A commissions, which thus fall under this fourth branch of state. This in turn means that their recommendations can also, in appropriate circumstances be binding. A simple amendment to the commissions Act to refine the law to this end would go a long way in helping it achieve its socio-political purpose in the transfigured, modern South African state. It would also ensure that such I&A COIs act not only independently, but also accountably.

Third, Chapter 9 of the Constitution should be amended to make explicit provision for our four-branched model of the separation of powers, including the I&A fourth, with its multiple checks and balances. Recent foreign jurisprudence reveals that constitutional textual invisibility can be dangerous, as  benches — and thus judicial ideologies — can and do change. Furthermore, express provision should be made in chapter 9 for a standing anti-corruption commission to deal with systemic corruption that breaches the trust in public officialdom, along the lines previously proposed. The distinctive investigatory, truth-telling and forensic expertise of such a commission would be an invaluable addition to Chapter 9s cohort of (I&A) institutions, in strengthening constitutional democracy without usurping the powers of the other branches of state (and institutions).

Fourth, the Constitution should be amended such that the misleading and controversial ministerial control provision pertaining to the NPA, in section 179(6), be removed. The NPA Act should be amended to bolster the constitutionally intended independence of the NPA without improperly curtailing its discretionary power to prosecute crimes on behalf of the state in the public interest. But, just as there are carefully calibrated provisions for the appointment and removal of judges, the Chapter 9 office-bearers and so on, so too should the NPA’s independence (and accountability) be strengthened through the development of such explicit checks and balances on its powers.

Insofar as these suggested reforms entail constitutional amendment(s), they require no more than a two-thirds majority vote in the National Assembly, which, if we are to take the GNU at its word can, and should, be attained in the public interest. Thus far, the GNU has given us no reason to doubt its good faith intent as expressed in its SOI, nor any reason to prejudge its willingness and ability to actualise this intent. 

If we liken the GNU to a marriage, then we should appreciate its SOI not in the nature of an antenuptial contract, which plans for worst-case divorce — but rather as a guiding document, with its minimum priorities, and concrete modalities to make the marriage work. I believe that if the GNU parties do work together in good faith to put the people first, then perhaps my four proposals may be a good place to start.

Lauren Kohn is a legal scholar and young research fellow at UCT. She co-founded the access-to-justice platform, www.SALegalAdvice.co.za