Proposed new law to change the constitution in South Africa – targeting corruption

 ·22 Apr 2024

Democratic Alliance member of parliament Glynnis Breytenbach has gazetted notice of a new private members’ bill she intends to introduce in parliament, looking to make the 21st amendment to South Africa’s constitution.

The constitutional change, should it be approved and made law, would see a new Anti-Corruption Commission established in South Africa as a Chapter 9 institution.

This commission, like all Chapter 9 institutions, would then report directly to Parliament and be free of executive control.

“The Anti-Corruption Commission will be tasked with supporting and strengthening constitutional democracy in the Republic of South Africa by investigating and prosecuting serious corruption and high-level organised crime,” Breytenbach said.

“The Anti-Corruption Commission, like all other Chapter 9 institutions, will be independent and
subject only to the Constitution. The draft Bill will set out the functions, composition, membership,
and tenure of the Anti-Corruption Commission and determine its relationship to the National Prosecuting Authority.

“It is designed to prevent abuse of power,” she said.

According to Breytenbach, South Africa is being stifled by corruption, having hits its lowest position on the Corruption Perceptions Index published by Transparency International, and being greylisted by the Financial Action Task Force for being lax on money laundering, terrorism funding and corruption.

The MP added that the Judicial Commission of Inquiry into Allegations of State Capture (aka, the Zondo Commission), laid bare public sector corruption – however, since the publication of its report, prosecutions have commenced against only a few implicated individuals.

She said that the NPA is constitutionally mandated to pursue prosecution without fear or favour, but is limited to prosecution and not investigation.

Since the demise of the Directorate of Special Operates (aka the Scorpions), priority crime investigations were moved to the Directorate of Priority Crime Investigation (aka the Hawks), but this has proven to be ineffective due to structural and operational flaws, including influence from the executive.

“The NPA is required to fulfil its functions without fear, favour, or prejudice. However, the NPA was one of the institutions that suffered the most at the hands of the State Capture project. The NPA lacks institutional independence because the Minister of Justice has final responsibility over it and must concur with all policies related to prosecutions,” Breytenbach said.

The NPA functions as a programme within this department. The Director General of Justice is the accounting officer of the NPA.

The MP said the best way to curb corruption in South Africa is to have “an independent, well-resourced, and specialised corruption fighting body that enjoys secure tenure of office”. This is what the establishment of an Anti-Corruption Commission aims to achieve.

Read: Failing to prevent corruption is now a criminal offence in South Africa

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