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Core Skills course delegates challenged with novel ideas

14 May 2018 - 10:00

FOR most participants at the core judicial skills week just ended at the University of Cape Town, the idea of an “integrity branch” of government was a novel one. It was briefly introduced to the gathering of judges from across the continent by UCT law professor Hugh Corder. Over the years, his regular discussions with judges at courses run by the Judicial Institute for Africa have been peppered with challenging new concepts, and this time was no exception.

Corder said that academics and judges in a number of countries were debating whether the time had come to broaden our understanding of government and add another branch to the long-established view that there were “three arms”: the executive, the legislature and the judiciary.

Speaking to Jifa after his presentation, Corder said he believed the idea of an “integrity branch” held great potential. He had been part of the drafting of SA’s post-apartheid constitutions, and all those involved in the processes “were very aware of the democratic deficit” – this a reference to the problem that for most people democracy is something experienced only at election time.

“There was a strong drive to fill this ‘deficit’ with institutions whose fundamental mandate was to secure a greater degree of accountability, responsibility and openness which are key values identified in Chapter 1 (d) of the SA constitution.” These institutions, like the Public Protector and the SA Human Rights Commission, are named and dealt with in Chapter 9 of the SA constitution, which begins by noting that the task of these institutions is to “strengthen constitutional democracy”.

“But it is not just in SA,” said Corder. “We find there is growing international interest and currency in the idea of protecting and promoting democracy in this way.”

Among the first to discuss the need for an “integrity arm” were several Australian judges. The idea crops up in the literature from about 2000 and in 2011 the then Chief Justice of Western Australia, Wayne Martin, speaking at a landmark conference on corruption stressed the importance of an anti-corruption agency focused on public sector corruption. He referred in that speech to remarks by another Australian judge, James Spigelman, who had directly raised the idea of there being a “fourth branch of government – the Integrity Branch”. According to Justice Spigelman, this “branch” would include agencies created over the last 15 – 30 years, whose functions “do not fall neatly or conveniently within any of the three, traditionally recognized, branches of government”.

Judge Martin said many people believed their governments and bureaucracies were not corrupt, but widespread experience showed that “evidence of corruption (was) unlikely to be gathered” if there was no agency dedicated to detecting it. “When anti-corruption agencies are created in any jurisdiction they become extremely busy”. Other branches of government also had functions related to maintaining public sector integrity, chief among them the courts. And there were dedicated agencies within the public sector, responsible for improving integrity, including tribunals, auditors-general and public protectors.

There’s now a large and growing body of literature on the subject, with debate about, among other issues, how to see to it that those entrusted with ensuring “integrity” focus on ensuring democratic openness, rather than becoming a country’s busy-bodies, with their noses in everyone’s affairs. There are also an increasing number of officials whose jobs are related in some way to the “integrity branch” – like David Solomon, whose job is officially entitled, “Queensland Integrity Commissioner”.

In a paper as a 2012 administrative law conference, Solomon dealt with the role of the media among other issues. Many people who feel confused by the idea of a “fourth arm of government”, are in fact remembering that the media are often referred to as the “fourth estate”. Solomon said, “The press has long been referred to as the fourth estate and the media in general have tried to assume this designation. But being the fourth estate is not quite the same as being the fourth branch (of government).”

The media contributed significantly to political accountability, he said. And to the extent at the media reported the activities and view of the integrity agencies “they deserve to be considered at least as collaborators in the integrity process.” Solomon was, however, skeptical that its role in the integrity branch amounted to much more than that.

What about the public generally? How can they be helped to become an active part of the integrity branch? Solomon suggests this is already happening via the Internet and with members of the public using the freedom of information processes. He concludes however: “I think that in the foreseeable future, the integrity branch will remain the preserve of independent or autonomous agencies established by government, and of those branches of government that have an integrity function as part of their ordinary activities.”

He said he could see advantages to an integrity branch that was “quite distinct and separate” from other branches of government. Being separate would probably help make it more effective, not least because “citizens could see what it was doing.” But that was not the Australian system. That’s because all three existing branches of government already has some “integrity function”, and there would be no advantage in carving off these functions and adding them to a fourth branch.

“What is important is that those individual agencies that have been created primarily to perform an integrity function, from the Auditor-General to the Ombudsman and to various specialised complaints and investigatory bodies, should have the appropriate degree of independence from government, or at the very least, operational autonomy. That independence/autonomy will not be a measure of whether a body has an integrity function, but it will be one characteristic to be considered in classifying it as a part of the fourth (integrity) branch".