President Cyril Ramaphosa’s Sunday night family meeting was one of contradictions — he is prepared to try to prevent corruption in the future, but is not prepared to act against corruption now. 

It also suggests that the ANC itself is unable to act against those in its ranks who have findings against them, even if it is in the party’s own interests to do so now.

Ramaphosa outlined an extensive list of responses to the findings of the Zondo Commission. While his public address was around 30 minutes, the official formal response, posted on the Presidency’s website, comes to 77 pages.

In the long run, it is this formal response that may become more important, because it may have some legal power.

It is important to point out that in law, commissions are merely the act of a president — a commission is equivalent to a president carrying out their own investigation. As a result, there is no way to compel a president to carry out the recommendations of the Zondo commission.

Unlike a Public Protector’s report, it has no binding remedial action. 

That said, some of the actions Ramaphosa aims to implement will benefit the country in the long run.

Weakened institutions

There was plenty of evidence during the State Capture era that former president Jacob Zuma was able to weaken the National Prosecuting Authority simply by making poor appointments, and there was no boundary preventing him from doing this.

Now Ramaphosa wants to ensure any future appointments are made following a public interview process.

This may be helpful, but still does not go as far as a suggestion by then president Kgalema Motlanthe in 2008, when he suggested the head of the NPA should be appointed in the same way as a judge.

Considering that the head of the NPA may arguably have more power than a judge in some circumstances, it could be suggested that this, in fact, would be a better path to follow.

Also likely to be of benefit is the plan to put into law changes to the State Security Agency, to ensure it is not abused for political purposes again.

But while all of these suggestions may have an important impact, it is just as important to note that there were plenty of laws against corruption on the books long before Zuma became president.

And none of those stopped State Capture or the Arms Deal or even Sarafina 2.

Laws are only as strong as those in power; the decisions of individuals matter. Here, Ramaphosa’s critics may believe he is wanting.

The executive

Towards the end of the Presidency’s formal response, it outlines the five people in his executive against whom findings were made.

It points out that Energy Minister Gwede Mantashe received a security system from Bosasa (Mantashe is challenging this finding); that Deputy Minister Thabang Makwetla also received a benefit from Bosasa; that Deputy State Security Minister Zizi Kodwa received the “payment of inducements”; that Deputy Water Affairs Minister David Mahlobo should be investigated for the handling of cash at the State Security Agency, and that Communications Minister Khumbudzo Ntshavehni may have participated in breaking the Public Finance Management Act while a board member at Denel.

Then the response points out that the President “must accept the political consequences of the appointment, dismissal, performance or actions of any member of the Executive that they appoint”. 

However, the only possible hint of action in the formal response is this: “In exercising his powers with respect to the appointment and dismissal of members of the Executive, the President is taking the Commission’s findings, recommendations and observations about particular individuals into account and consideration, as well as the status of relevant legal processes, as such matters arise”. 

In other words, he is not acting against them. 

The impact of this may be important. 

It means, for example, that Ramaphosa is prepared to change the law to stop corruption at the State Security Agency from happening again, but is not prepared to act against Mahlobo, who participated in that corruption in the first place.

Internal ANC politics

This does not appear to make sense, except to demonstrate that Ramaphosa clearly cannot act because of internal ANC politics.

While Ramaphosa’s television address received huge attention on Sunday night, the ANC released a statement after a special national executive committee meeting. It too addressed this issue.

First, it said, “the ANC distances itself from those within its ranks who have been involved in corruption or who are complicit in State Capture.”. 

It went on to explain its response: “A list of persons implicated in the Commission’s Report has been provided to the ANC Integrity Commission. The approach in relation to implicated members of the ANC will be guided by 54th National Conference resolution, which resolved to ‘… demand that every cadre accused of, or reported to be involved in, corrupt practices, accounts to the Integrity Commission immediately or faces DC processes.’ This would apply equally to all ANC cadres, including current leaders, former leaders and ANC cadres not in leadership positions.”

But if history is any guide, there is no reason to believe that the Integrity Commission will act at all.

As an interview with its chair George Mashamba revealed during the party’s policy conference, it appears to have very little will to act. And any recommendations it does make would ultimately go back to the NEC — the very same NEC that includes people against whom findings were made in the first place.

Read more in Daily Maverick: “To stand a chance in fight against corruption, ANC must empower its integrity commission, or else”

This fact may have strange implications for the contest for NEC positions at the ANC’s December conference.

Under the rules for the elections published by the head of the party’s electoral commission, Kgalema Motlanthe, people facing criminal charges or who have been convicted of a serious offence cannot run for an NEC position.

This means that those who are on the NEC now, against whom findings have been made — such as Malusi Gigaba and Mosebenzi Zwane — have every interest in making sure they are not charged before the conference. And then to make sure they are elected back on to the NEC in December, to ensure that they can play a role in influencing what happens to those who are implicated in wrong-doing. 

In other words, those against whom findings have been made now have an added incentive to ensure they are elected back on to the NEC — to ensure that they do not have to face accountability in the future.

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All of this suggests that it is very unlikely that the ANC, or Ramaphosa, will act against the individuals of their own accord. Rather, they will simply wait to see if the NPA will charge them, and then insist that they step aside under the “step aside” rule.

The ANC is making comments about its “renewal” precisely because it knows that voters want to see that it has changed. It knows that people are unhappy with the ANC. And that there are elections at stake.

And yet, it is still unable to act unless the NPA formally charges someone. 

This suggests it may be missing a massive opportunity to demonstrate its proclaimed no-nonsense attitude towards those who are corrupt.

Ramaphosa and the ANC believe his formal response to the Zondo commission shows that he and his movement are serious about fighting corruption.

But action against these individuals, taken of Ramaphosa’s own accord, would speak far louder than the words he uttered on Sunday night. DM