Fighting corruption, a constitutional imperative: the case of Hugh Glenister v President of the Republic of South Africa

Abstract

This dissertation explores the case history of Hugh Glenister v the President of the Republic of South Africa drawing upon numerous themes that emerge from this litigation and relevant legal theory including: the separation of powers doctrine; judicial review; constitutionalism; the internationalisation of constitutional law; legal legitimacy; democratic experimentalism; constitutional dialogue; the requirement of independence for anti-corruption entities; good governance; accountability and transformative constitutionalism. The Glenister litigation started in 2008, following a challenge to proposed legislation that envisioned disbanding the Directorate of Special Operations (the Scorpions) and relocating its anti-corruption policing capacity from the National Prosecuting Authority to the South African Police Service (Glenister 1). This litigation reached the Constitutional Court who in a unanimous judgment found against the applicants based upon a separation of powers argument, noting that Parliament had yet to conclude its work of finalising the proposed legislation. In 2011, once the legislation was enacted, the applicants again challenged the same legislation, on a similar set of arguments to those put forth in 2008, notably that newly formulated policing unit, the Directorate of Priority Crime Investigations (the Hawks) lacked sufficient safeguards to ensure its independence to function structurally and operationally in manner which is faithful to both constitutional requirements and South Africa’s anti-corruption international law obligations (Glenister 2). This time, in wide-ranging decision, but only with a slender majority of five judges, the majority found in favour of the applicants. The Court’s remedy was a declaration of constitutional invalidity suspended for 18 months to allow Parliament to opportunity to remedy the defects. Following this order, Parliament revised the legislation. However, the applicants again challenged the new legislation on the basis that it still fell short of the constitutional requirements outlined in the 2011 judgment. In December 2013, a full bench of the Cape High Court again found for the applicants holding that Parliament’s revised statute remained inadequate failing to sufficiently address the concerned raised by the Glenister 2 majority (Glenister 3). In Chapter 2, the dissertation sets out a brief case history of this litigation. In Chapter 3, the dissertation looks more in depth at the concept of constitutionalism and the separation of powers doctrine and how features in the litigation, specifically in Glenister 1. Chapter 4 explores in greater depth the pivotal findings of the Glenister 2 majority including the constitutional imperative to fight corruption, the obligation to establish and maintain a corruption-fighting unit, South Africa’s anti-corruption obligations under international law and the constitutional requirements in this regard for independence. Chapter 5 interrogates the impact of the internationalisation of constitutional law upon constitutional adjudication and how this figures in the litigation under review. Chapter 6 develops an analysis of how the South African Constitutional Court engages in the practice of judicial review in this case and how this shapes the nascent democratic dispensation’s approach to constitutional dialogue between the branches of state. Lastly, Chapter 7 explores how the Glenister litigation must be understood within a utopian-pragmatic dialectic where the promise of a transformative constitutional project is juxtaposed to the practical functioning of power politics within a system characterised by a single ruling dominant political party.