South Africa needs Scorpions 2.0 and a capable National Prosecuting Authority

Daily Maverick

16 hours ago

The National Prosecuting Authority (NPA) has made notable strides in the recovery of money lost by the state in organised crime and corruption cases. Yet convictions and prosecutions of State Capture cases are still amiss.
This constitutional crisis obliterates any prospect of economic growth. A report by Investec found that crime and widespread government corruption significantly contributed to South Africa's downward economic spiral. According to the report, had we kept up with the growth rates of similar countries, South Africa's economy would have been 37% bigger than it is today.
Crime and corruption must be successfully prosecuted to lift South Africans out of poverty and squalor. A strong criminal justice system is a prerequisite to restoring the rule of law, strengthening democratic institutions and growing the economy.
The NPA's turnaround strategies aimed at restoring the destruction caused by the Jacob Zuma administration have fallen short. The prosecuting authority is collapsing in front of our eyes.
A lack of experienced prosecutors, limited capacity and chronic underfunding have led to failures in prosecuting both complex cases and everyday crimes.
An institutional overhaul is required to address the scourge of crime and secure the independence of prosecutions, and this can only be achieved through amending the Constitution.
South Africa needs an independent Anti-Corruption Commission tasked with investigating and prosecuting serious corruption and high-level organised crime. Additionally, we require a capable NPA free from political interference. This two-pronged approach combines the long-term solution of the Anti-Corruption Commission with ensuring the independence of the NPA in the short term.
A truly independent NPA
The first step is the development of a Private Members Bill to address the lack of independence of the NPA, shield it from political interference and ensure that the subjugation of the NPA never occurs again. This Bill is currently in development.
The Bill will have the NPA report directly to Parliament and remove the President's ability to appoint or remove the national and deputy directors. This power will be couched in Parliament and require a special majority to effect any removal. It will further detach the minister of justice's final authority over the NPA.
National directors have been fired for prosecuting cases of politically connected persons in the past. Advocate Vusi Pikoli's removal is a prime example of such political influence. The amendment will also give the NPA the power to determine its own budgetary needs, subject to parliamentary approval.
The NPA can neither be rebuilt nor have its prosecutorial capacity increased without additional funds. The NPA's budget is currently determined by the minister of justice, who, like her predecessors, has failed to advocate for better funding despite the NPA's pleas.
Increased funding will allow for the employment and training of future prosecutors and better equip junior prosecutors with skills and experience, thus restoring the NPA's capacity incrementally. This Bill presents short-term wins that would substantially assist the NPA.
The responsibility for investigating and prosecuting serious corruption and high-level organised crime must be transferred to a specialised Chapter 9 body in the long term. This will free up the NPA to tackle its huge caseloads of everyday crime.
This is the second prong, aimed at a long-term solution to dealing with State Capture and high-level organised crime.
The Scorpions 2.0 as a long-term solution
The Anti-Corruption Commission Bill was introduced early this year and is now being considered by Parliament. The Bill creates a Chapter 9 institution that specialises in the investigation and prosecution of serious corruption and high-level organised crime.
Such complex cases require a great deal of resources for successful prosecutions – resources that the NPA does not have. The role of the institution will be akin to that of the original Scorpions and allow for prosecutor-led investigations and security of tenure.
The Directorate of Special Operations – the 'Scorpions' – was a specialised NPA unit tasked with investigating and prosecuting corruption and organised crime. Because it was part of the NPA and under the authority of the minister, politicians under investigation were able to have the unit disbanded.
Previous Chief Justice Raymond Zondo has aptly described the disbandment as 'the worst decision ever'.
Although replaced by the Directorate for Priority Crime Investigation (the Hawks), falling within the authority of the minister of police, the Hawks themselves have been exposed to political meddling and influence.
Recently, in an attempt to appear hard on corruption, a new Investigating Directorate on corruption was established within the NPA, this time, without the power to investigate, and failing to insulate the unit from political meddling. Institutional problems within the NPA cannot be solved with slapdash legislation.
No anti-corruption unit can be under the yoke of the people it is tasked with investigating – it must be unequivocally independent from political influence. The Anti-Corruption Commission Bill will create a stand-alone body free from political control and put an end to the looting of state coffers.
The Anti-Corruption Commission Bill ('Scorpions 2.0') runs parallel to a constitutional amendment that ensures the commission's full independence. This amendment will make it impossible for implicated and connected persons to have a say in leadership changes at the commission. The leaders of the Scorpions 2.0 will answer directly to Parliament, thereby protecting the security of tenure of those in charge.
The amendment will further secure a fixed-percentage budget allocation for the commission. No longer will the prosecution of corruption be hamstrung by politicians closing the purse.
These measures ensure that the Anti-Corruption Commission will be immune to any form of political pressure and can focus solely on investigating and prosecuting crimes of corruption.
A specialist unit will finally allow the prosecution of State Capture cases and other instances of corruption. It will further empower the NPA to prosecute 'ordinary' crimes with greater success. South Africans deserve to live in a safe environment where perpetrators of crimes like rape, murder and robbery are put behind bars effectively.
Conclusion
The effective prosecution of crime creates a safer society and leads to increased investment, economic growth and job creation. With unemployment at about 40%, the importance of economic growth in South Africa need not be elaborated.
It is inexcusable that the National Prosecuting Authority has been allowed to fall into disrepair and reach a point of collapse, yet it can still be saved.
In the darkest of times, our country has shown that it can come back from the brink. These bills will restore our prosecutorial institutions and deserve the full support of South Africans. The amendments they propose will fight crime, put an end to corruption and save our country. DM