ANALYSIS

Unearthing the truth about State Capture – an easier task than fixing the system that made it possible

By Stephen Grootes 27 August 2018

Former president Jacob Zuma and President Cyril Ramaphosa. 09/08/2015 Kopano Tlape GCIS

The first proper day of witness testimony at the Inquiry into State Capture provided the shocking but not surprising evidence. Mcebisi Jonas, the former deputy Minister of Finance, explained exactly what happened at the Gupta home, and the Ajay Gupta's brutish behaviour. But, perhaps more important, he also painted a picture of pressure the Treasury was under, and just how deeply its leadership had been isolated in the Zuma Cabinet. He made it even more real by presenting the way the Hawks intended to deal with the case, and how they tried to bury it. For anyone doubting what happened under former President Jacob Zuma, this picture was clear, damning and rather disheartening. What needs to be done to ensure that it is never repeated, and how our state can be better protected? There are no easy answers.

The Head of Presidency at the ANC, and Luthuli House’s apparent de facto spokesperson, Zizi Kodwa was at pains to claim over the weekend in the Sunday Times that it was not the ANC which is on trial at the Zondo Commission. He tried to claim that it was the ANC which had insisted on the commission in the first place, and that the party was dedicated to the fight against corruption. It is the statement he simply must make, no matter what the true facts are. What is surely true, or at least widely perceived as true, is that it was the ANC which allowed Zuma to get away with rampant corruption and surrendering the state to the Guptas. It was the ANC, time and time again, which backed its President on issues around Nkandla, the Guptas, takeover of the security cluster, and, of course, his personal behaviour.

Considering that at no time would the ANC condemn Zuma, despite what he did, it was no surprise that when the ANC said it wanted its members to provide evidence against him early in April 2016, virtually no one took up the offer, apart from Jonas and Themba Maseko. (Knowing that all they would be doing would be showing Zuma what they knew, and basically identifying themselves as enemies, it was not a small task, and Jonas’s and Maseko’s brave stand was to be applauded.) It is for this reason that Jonas himself did not bother lodging any criminal charges, as he knew that the criminal justice system was completely controlled by Zuma. And this was proved, of course, by the way the Hawks dealt with the issue.

It is a particularly noxious nexus of politics that led Major General Zinhle Mnonopi to tell Jonas that this was a “DA matter” and should essentially be closed. And her arrogance in doing this in front of Jonas’s attorney was simply because of the kind of leadership the Hawks was under at the time. Who can forget how Mthandazo Berning Ntlemeza was appointed the head of the Hawks after being declared by a judge to be a “man without integrity”. And it was the then secretary general Gwede Mantashe who refused, despite repeated invitations, to condemn this appointment.

So how do we ensure State Capture never happens again?

It will require both changing some of the political systems we have, and building on what worked to stop a full-scale slide into dictatorship this time around.

The first point is obvious, the more transparency the better.

In the end, it was the #GuptaLeaks, the bravery of people like Jonas and Pravin Gordhan who would fight the good fight in public, and an active civil society which pummelled members of the ANC daily that ensured they could not go on like this. That gave Cyril Ramaphosa space to mount his own campaign in the ANC and his ultimate sort of victory. (Imagine if there were no independent media in an Age of Hlaudi?)

One of the problems that Jonas spoke of on Friday was the political isolation of the Treasury – no one would support them. The question then is why were they isolated so effectively, and why would no one support them? The answer of course lies in the overwhelming power that Zuma had.

This means questions need to be asked about whether it should be possible again for someone to have that much power in the future.

The answer to that, on current trends, is probably a “no”. While a few years ago it was generally claimed that our politics was moving to a two-party system, this now seems unlikely. Instead, it seems more likely that some of the bigger parties could actually split. At the same time, power is federalising at a speedy rate, which makes it harder for any national figure to reach the level of Zuma’s power.

At the same time, it may be that something else quite dramatic, but under-examined, is also happening. It is possible that what could have been called the “lock” the ANC had on votes has been broken, because of Zuma. In other words, the liberation dividend has now been spent. While it is easy to campaign as the party that defeated apartheid, it is surely harder to campaign as the party that defeated its own former leader, even if he were as unpopular as Zuma. With the anger and frustration at the general lived experience of SA people growing, the ANC might have to work harder for votes than at any time since 1994. This will surely make it harder to have another figure like Zuma at the helm for long.

That said, to stop Zuma from happening again, all these elements need to be accompanied with big changes to the state itself.

The most obvious is to ensure the criminal justice system, all of it, is removed from political control. This is actually quite hard to do, as someone still has to make the key appointments.

The easiest may well be to start with the National Prosecuting Authority. Ten years ago, former President Kgalema Motlanthe suggested (while in office himself, and perhaps predicting the damage Zuma would wring) that the head of the NPA should be appointed by the Judicial Service Commission. This would mean nomination would be vetted through a public hearing. While this would still allow politicians to be involved in the process, it would at least stop situations where a future president can just appoint someone completely obviously the wrong person to the post. In other words, Menzi Simelane need no longer apply. At the very least, even if someone unsuitable was appointed, the entire country would know it.

Then there is the Hawks. At the moment, after years of litigation related to the demise of the Scorpions, the head of this unit is appointed by the Police Minister. This surely needs to change, it is simply too close to politics. It was because of this that someone like Nyameka Xaba ended up leading the Hawks Crimes Against the State unit. He focused on Gordhan and Jonas while they were still in government, and followed that up with a claim that an SAA pilot opposed to Dudu Myeni was guilty of treason. It is people like this who do the actual damage, with the encouragement of, or even an order from, their political masters.

Obviously, as a start, all of the people involved in these egregious distortions of the original mandates, Ntlemeza and Xaba included, need not just be removed from their positions, but actually punished. It must be made known that carrying out what are obviously political instructions as a police officer is illegal, and that jail for doing so is a potent reality.

But then the process of appointment to head the Hawks needs to be changed as well. Again, it is not simple – politicians are elected to make decisions, and so should have a role in making an appointment like this one, but some kind of public oversight is certainly warranted.

Unfortunately, it does not stop there – one of the most important reasons that the State Capture happened is buried deep in the ANC’s political being – cadre deployment itself. It is this system that allowed officials all the way along the line, with few brave exceptions, to simply do the president’s bidding.

The classic case of this is Siyabonga Gama, the current CEO of Transnet – Popo Molefe, Transnet’s chairman, wants to suspend him, based on claims that he has indulged in corruption. And yet all of this could have been stopped if Gama had not been saved, by the ANC no less, in 2010. Back then, Gama was found guilty by a disciplinary hearing of corruption when he was head of Transnet Freight Rail. And yet, he was not removed from his post. Instead, five years later, he became the CEO of the entire Transnet. And only now is he being removed. And why is that? Because the ANC’s deployment committee, in 2010, wanted Gama to be CEO. The result? According to Molefe, Gama was able to indulge in corruption all along.

Cadre deployment makes it impossible to develop a layer of public servants who could run the departments and SoEs far better than any politician. The ones that are already in the government cannot stand up for themselves – they get thrown out if they do. A brief glance at the testimony given by top officials at the arbitration hearings dealing with the Esidimeni tragedy show how people would just do whatever their political principal told them to do. They did not have the space, or the strength, to stop Qedani Mahlangu from starting a process that led to so many unnecessary deaths and untold suffering.

Cadre deployment obviously has to change, but the ANC is still unconvinced. This process gives it more power, and that very power itself makes it probably impossible to stop. Only the electorate, perhaps, could enforce such change.

In the end, no matter what systems you have, it always depends on the people implementing it, and on what drives them. In the case of Zuma, there were certain mistakes that were made by him, the general attitude of the Guptas, and other dynamics that played a role in defeating him in the longer run. But parts of the general structure of our politics also played a role in creating him. We have to have a long hard look at this structure. The current inquiry is only the starting point to that process. DM

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