Considering the Glenister Judgment: Independence requirements for anti-corruption institutions

Abstract

This article analyses the majority and minority positions in the Constitutional Court’s Glenister v President of the Republic of South Africa and Others1 decision. It will identify the main differences in approach to the issue of the political ‘independence’ of an investigative agency such as the Directorate for Priority Crime Investigation (the Hawks), and its predecessor, the Directorate of Special Operations (Scorpions). The article assesses what ‘room for manoeuvre’ in terms of possible legislation the majority judgment leaves to the South African parliament. The Court’s approach and these apparent requirements are compared with current provisions for political ‘independence’ of anti-corruption agencies in Australia and Indonesia, raising, in particular, an assessment of the arguments for and against (a) the need for an anti-corruption investigative agency to be separate from the ‘regular’ police and prosecution service; and (b) the proposition that an anti-corruption investigative agency requires a higher level of political independence than the ‘regular’ police service(s). It also looks at issues of cost and effectiveness in establishing and maintaining dedicated independent anti-corruption agencies.