Two related recent events should give us pause. Nhlanhla Nene testified before the Zondo Commission and promptly lost his job. President Cyril Ramaphosa announced that he would employ a panel of experts to advise on the appointment of a new head of the National Prosecution Authority (NPA).
This relationship can be summarised as follows: A judicial commission is not a precise mechanism to both find the truth and ensure the restoration of the principle of accountability. The more fraught the nature of the inquiry the more opaque the procedures adopted and the greater the chance that the entire process will be extended far beyond the initial promise of completion.
It is perhaps not entirely surprising that the first person to suffer the consequences of the Zondo Commission was Nene. True, he met the Guptas on a number of occasions and he displayed a regrettable lack of candour in not informing the nation when he was asked some while ago by the media. But Nene was not a cause of State Capture; to the contrary he resisted Zuma’s outrageous campaign to bankrupt the country and enrich some with the Russian nuclear deal.
By contrast many still in cabinet have much to answer and there is no indication as to when they will be called to testify, the mountain of prima facie evidence notwithstanding. Some may consider the Nene episode to be an own goal scored by the evidence leaders at the commission; the better explanation is that Commission’s by their nature grind slowly, not particular fine and hence lack the efficiency which is possessed by a well run and honest NPA.
If Johann Booysen, ex-head of the Hawks in KwaZulu-Natal is to be believed , the NPA is in dire need of an urgent clean-up. He suggests that Nomgcobo Jiba is still “running the show”. In itself this is of huge concern as is the fact that some two months have passed since Shaun Abrahams got the judicial boot and still there is no replacement.
The President is to be commended for instituting an independent process to advise on an appointment but why has this taken so long. After all once the litigation to remove Abrahams was initiated which was more than six months ago, Ramaphosa must have known that either Abrahams would be removed, or if not , he could replace him; hence the unexplained lack of planning.
All the while the stench of corruption becomes more pungent. The health of the country was hardly improved by the departure of Nene; it requires those who promoted the nuclear deal, empowered the Guptas, facilitated the vast sums of money to be removed from the country to be held to account.
Assume that the President, as is likely to be the case, acts on the sound advice he receives from the panel, and appoints a NPA head who has the legal knowledge, strategic and political skill and possessed of unquestioned integrity: the demand for an accounting of what took place over the past decade of Zupta rule becomes possible.
In the same fashion that the country learnt more about the horrors committed by the apartheid regime from the trial of Eugene de Kock than from the Truth and Reconciliation Commission, so it is odds on that more will be learnt about State Capture, its causes and methods from strategically initiated trials then from the Zondo Commission. The reason has little to do with this commission but is to be found in the vast superiority of a well run criminal trail to expose criminal wrongdoing .
On the first day in office, the head of the NPA can order an expeditious investigation into a couple of vulnerable individuals who no longer enjoy political protection but were heavily involved in one or other of the numerous rackets that operated during the past decade.
Instead of charging these people with crimes that carry heavy jail time, the NPA could act as has Robert Mueller in his investigation into Russian interference into the US elections. They can be offered indemnity from prosecution in exchange for full disclosure of that which they clearly know about parts of State Capture. Once they are successfully squeezed, the NPA can move up the corrupt food chain, thereby having the evidence to charge the heavy hitters.
The advantage of the criminal trial over the commission is at least two fold; it is much more a set piece governed by clear rules of engagement making it so much easier to arrange the flow of evidence which has already been garnered and secondly a criminal court is not confined to recommendations; it has the power to sentence. After the Nene saga, the new appointment cannot come quickly enough. DM