Opinionista Paul Hoffman 15 April 2019

Vigilantism is not the solution to rampant corruption

Corruption Watch, which has kept watch over corruption in South Africa since 2012, has reached and published a somewhat startling conclusion after surveying the terrible ravages of grand and petty corruption in the country, especially as these twin scourges impact on the lives of the poor. As the population is made up of a majority of poor people, the conclusion is also worrisome, even though it is true that the poor suffer most due to those ravages.

Here are the exact words of the conclusion by Corruption Watch, published by Daily Maverick.

While we hold on to the Constitution, the Bill of Rights, and the few pillars of democracy that were not eroded completely by State Capture, we have 25 years of liberation to reflect on, centuries of oppression to contemplate, and the recognition that collective people’s power is the only solution to fight the scourge of corruption in South Africa.” 

Corruption Watch does not explain quite how “collective people’s power” is to be exercised as the only solution to the criminal activity that constitutes corruption, whether in respect of petty or grand corruption.

Indeed, while corruption is described by Corruption Watch as a “culture” a “normalised act” and a “scourge”, it is not recognised for what it is – a crime and a threat to our constitutional democracy, a form of governance that all good South Africans, including the staff of Corruption Watch, hold dear.

In our constitutional dispensation, to which Corruption Watch very properly refers approvingly, the task of dealing with crime, all crime including corruption, is that of the police, the prosecution service and the criminal justice administration, which includes our prisons and our courts. The provisions of section 205(3) of the Constitution could not be clearer:

The objects of the police service are to prevent, combat and investigate crime … and to uphold and enforce the law.”

It is fundamental to the SA social contract that countering corruption, as a form of crime, is the work of the police service, not some “collective” people’s effort. Where the police service itself is corrupt, there is an independent body, called IPID, which must “investigate any alleged misconduct of, or offence committed by, a member of the police service”. Without a properly functioning criminal justice administration not one corrupt individual can be brought to justice.

Collective people’s power”, whatever that may mean, is not constitutionally recognised as a solution, let alone the “only solution to fight the scourge of corruption”. Individuals who are aware of, or have evidence of, any corrupt activity have a civic duty to report it to the nearest police station. The police have a specialised unit, called the Hawks, which is supposed to investigate corruption.

Dockets prepared by the Hawks are referred to the National Prosecuting Authority for a decision on the prosecution of the corrupt. The staff members at the police stations are trained to refer corruption investigations to the Hawks, which have taken the place of the Scorpions, an independent NPA unit. This position has obtained since the ANC urgently resolved to disband the Scorpions because too many of its senior members, including Ace Magashule, were under investigation by the Scorpions back in 2007.

All big corruption cases referred to the Hawks that involve politically connected individuals die of unnatural causes in the system due to “state capture”. No prosecution of such miscreants has ever followed a Hawks investigation, either before or after the end of the Zuma presidency. This is why so much reliance is placed on the “innocent until proved guilty” principle in ANC politics. The leadership knows that no trial is even contemplated, let alone allowed to run.

The human rights guaranteed to all in the Bill of Rights are legally regarded as worthy of protection via adequately independent, effective and efficient anti-corruption machinery of the state. This protection includes protection against the ravages of politically based corruption. Accordingly, corruption, as well as being a crime, is a human rights issue.

The state is obliged, in terms of the Bill of Rights, to respect, protect, promote and fulfil the rights guaranteed to all in the Bill of Rights. The Constitutional Court has not, in its various judgments on the topic, ever suggested that the exercise of “collective people’s power” is the constitutionally proper way to deal with the corrupt. Indeed, the system of governance has to deal with criminals, including those guilty of corruption, not the people.

Encouraging people to exercise undefined “collective people’s power” could be construed as an invitation to engage in vigilante action. Heaven forbid. Resorting to self-help against the corrupt is downright dangerous and ought not to be encouraged. The unhappy lot of whistle-blowers and corruption-related political murders in SA serve as a warning to us all.

The inability of the state to deal effectively with the scourge of corruption is attributable to the lack of political will in SA to put proper anti-corruption machinery of the state in place in the criminal justice administration as well as to the capture thereof by the corrupt.

The courts, without being prescriptive about solutions, have described the qualities of structurally and operationally sound anti-corruption machinery of the state. A single entity (not a collective of entities) is required to give dedicated and specialised attention to combating corruption. Its staff members require expert training, adequate guaranteed resourcing and security of tenure of office. They must be sufficiently independent to withstand political influence and interference. They should not be under the control of the executive branch of government. Oversight is better exercised through our multi-party Parliament, as is done in the case of all existing Chapter Nine Institutions and IPID.

It has been suggested that a new one-stop-shop – the Integrity Commission should be established under Chapter Nine to comply, in a best practice way, with these criteria.

When asked, during parliamentary question time in March 2019, about the suggestion, the President found the idea “refreshing” and undertook to mull over it.

Neither the law nor the politics appear to have crossed the minds of those proposing the dangerous notion that “collective people’s power” is the “only” magic bullet solution to the scourge that corruption indubitably poses to the country. Sadly, there is no magic bullet for the corrupt. Nor is “collective people’s power” armed with any such bullet with which to fight the corrupt.

It is unlikely that the expression “collective people’s power” is a veiled reference to voting differently on 8 May for a party which has a legally and constitutionally sound policy platform for its anti-corruption plans in the sixth parliament of the new SA.

People do not vote collectively; they cast their votes in secret and individually. They may, individually using their votes, generate the necessary political will to get the state to function with openness, accountability and responsiveness, in the manner contemplated in the Constitution, not in a manner that reflects the capture of the criminal justice administration by those who currently enjoy impunity.

Equality before the law is for everyone, including the politically connected who have benefitted from corrupt activities.

Furthermore, note must be taken of the recent heartfelt, albeit misguided, contribution to the columns of Daily Maverick by the Chairman of Corruption Watch, Mavuso Msimang, in which he broadcast his intention to vote ANC in the “belief” (a veritable article of faith is needed) that it will somehow find a way (once again unspecified) of overcoming the pervasive corruption which holds the ANC in its thrall.

In the light of his statement, it seems improbable that the staff of Corruption Watch would encourage a vote for a party with a better corruption fighting record and position than the atrocious record and position of the ANC and its allies in Parliament. If that is what they were trying to do, they could have unpacked manifestos on anti-corruption policy of the best of the 48 political parties contesting the general election to assist and inform those they enjoin to exercise their “collective” power.

If some form of revolution is being espoused in the call to exercise the people’s “collective power”, let’s all hope that the national democratic revolution of the tripartite alliance is not what Corruption Watch has in mind. Adherence to the tenets of that particular revolution, particularly its illegal practice of cadre deployment in the public administration and SoEs, is what has put the country in the corrupt mess from which it is now haltingly trying to recover.

Fortunately, none of the major political parties has suggested that the only solution on countering corruption is that proposed by the Corruption Watch staffers. DM

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