The Idasa, an African Democracy Institute is an independent public interest organisation committed to promoting sustainable democracy based on active citizenship, democratic institutions, and social justice.
We live in a constitutional democracy. The Constitutional Court reminded us of that last week when it handed down what is without doubt the most powerful judgment of this virtually new Constitutional Court in the matter of Glenister v President of the Republic of South Africa and others. The judgment was, one sensed, an important moment, not only legally but also politically.
We are all familiar with the somewhat uncomfortable set of facts in this instance. The Scorpions, a specialized, independent agency focusing specifically on organized crime and corruption was shut down soon after the ANC conference at Polokwane in 2007. The political imperative was writ large. The Scorpions had been somewhat too aggressive in its attempts to act against Jacob Zuma and the allegations of corruption against him. In addition, there were allegations that the Scorpions were being used as a political tool to persecute Zuma. So, a political solution was opportunistically fashioned: disband the Scorpions. There were Parliamentary hearings and one had to feel a degree of sympathy for the chairman of the ad hoc committee, Yunus Carrim. For Carrim was well aware of the political pressures which meant that his committee had to draft legislation which effectively disbanded an institution which was relatively effective and independent with one whose independence was not assured. The new ‘Hawks’ as they then became known were located, unsatisfactorily, within the police, potentially opening them up political and bureaucratic interference. The hatchet job had been done and no doubt the executive breathed a sigh of relief. Of course those in power did not count on having to deal with the inconvenience of a Constitutional Court challenge and a dogged- and, yes, very wealthy- litigant, Hugh Glenister. Glenister and his legal team proved all the skeptics wrong and pursued the matter relentlessly. His determination has been a victory for all who believe in the accountability and the rule of law.
The majority judgment in Glenister is not just a bloody nose for the executive, it’s a crucial assertion by the court of its authority and of the supremacy of the Constitution. The court ruled that the legislation which brought the Hawks into existence did not contain sufficient checks and balances to allow it to be free of undue influence by those in power. It is obviously crucial that the highest levels of independence be maintained and secured by those institutions investigating corruption. Corruption, the court asserted harms the poor most and therefore agencies dealing with it require special protection and independence from political pressure. So, the court has given Parliament 18 months to fix the legislation and ensure institutional independence for the Hawks. It was very clear on the parameters within which new legislation had to be drafted in order for it to pass Constitutional muster. The Hawks ought not only to be seen to be independent but also that they should be practically insulated from a ‘degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit.’
Parliament now finds itself in an uncomfortable position now that the Constitutional Court has been explicit about what institutional independence means for an anti-corruption agency. Parliament has no choice but to legislate with the judgment in mind. If it fails to do so, it will be dealt another bruising blow.
Perhaps the Glenister judgment is the wake up call that was needed for Parliament? Last week its private members’ bill committee unceremoniously booted out Independent Democrat, Lance Greyling’s bill dealing with that other thorny issue, political party funding. Greyling has been fighting a lone battle in Parliament for the regulation of private funding to political parties. Despite the ANC’s Polokwane resolution which called for transparency as regards political donations, it has shown no absolutely no appetite for regulating political donations. In fact, the ruling party together with virtually all opposition parties have indeed benefited from the obfuscation regarding the sources of their political donations. The ANC in Parliament has all too conveniently acquiesced on the issue. The Glenister case shows that Parliament needs to be more aware of its Constitutional obligations as democratic institution. Perhaps the Glenister judgment will also provide important lessons not only to the Private Members’ Bill Committee but to the ad hoc committee on the Protection of Information Bill. That committee’s life has now been extended and this potentially draconian legislation faces an uphill battle as opposition towards it grows almost daily. The committee’s chairperson, Cecil Burgess, has on many an occasion acted in a manner which suggests over-weaning executive-mindedness. The Glenister judgment should be sobering reading for Burgess and others on the ad hoc committee who would prefer to ignore public opposition to the Bill and the Constitutional imperatives which limit the infringement of our right to know.
•Written by Judith February, head of Idasa's Political Information and Monitoring Service
This article first appeared in the Cape Times, Wednesday, March 23, 2011.