This is what the new anti-corruption body should look like, says advisory council

The country’s new anti-corruption institution should be independent of the executive branch, focus on systemic corruption and prevention, and have all the necessary powers and resources.

These are the preliminary reflections by the National Anti-Corruption Advisory Council (Nacac), chairperson Prof Firoz Cachalia shared on Monday.

Nacac was established last year to advise the government on the critical preventive measures, institutional capabilities and resources required to proactively curb a recurrence of state capture and to prevent fraud and corruption in South Africa.

“We have not finalised our views for consideration about the institutional infrastructure of an anti-corruption agenda, and particularly the question of a new anti-corruption agency.”

Cachalia said a Constitutional Court judgment, the recommendation of the Zondo commission of inquiry into state capture and the government’s anti-corruption strategy adopted by the cabinet all envisaged the establishment of a new anti-corruption institution without clarifying its structure, power, mandate and location.

“We all agreed that the current institutional structure falls short. Our work stream is working on a proposed model for consideration by the presidency and we have not finalised it.”

Cachalia said when he presented the advisory council’s preliminary ideas to stakeholders, there was some debate about the extent of the powers of the proposed institution and about whether these powers should include typical law enforcement powers such as entry and seizure.

However, there was consensus it should have auditing capabilities, forensic auditing capabilities and big data analytics.

The envisaged body should have the ability to act proactively to deal with systemic corruption. Cachalia said the agency he envisaged should have powers to go into an institution such as Thembisa Hospital, where there was evidence through whistle-blowing or through a complaint system, to initiate a forensic audit and refer evidence of criminal conduct to the relevant agencies for investigation and prosecution.

“We think possibly the mandate of this institution should include whistle-blower protection, procurement fraud, public complaints, monitoring and evaluation and public engagement.”

The new body should probably not include law enforcement agencies like the NPA, the Hawks and the police, he said. It could refer matters for investigation and prosecution and collaborate with other anti-corruption agencies like the public protector, the Financial Intelligence Centre, Sars and the auditor-general.

Cachalia said it was inappropriate to locate bodies with strong confidentiality requirements and those which were subject to ministerial direction, like the police, in the new anti-corruption agency, which was constitutionally required to be independent of the government.

Cachalia said the proliferation of new agencies with overlapping mandates should be avoided.

He said the Zondo commission, for instance, recommended a new agency on public procurement.

“We are not sure if that proposal was fully thought through, but it may be better to avoid this problem and the new proposed agency should be understood as being part of an anti-corruption and integrity system, which includes the department of education. 

Cachalia said the establishment of the agency should be done as soon as possible.

“Australia has just passed new legislation to establish a new agency. I think it took them 10 years — we do not have 10 years. We think we should establish the agency with such important powers to deal with systemic corruption — yesterday.”

Justice minister Ronald Lamola said consideration was being given to the creation of an anti-corruption entity.

"This work will be the culmination of research and discussions that have been ongoing for the past two years,” he said.

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