Opinionista Paul Hoffman 13 February 2020

Why there will be no immediate issue of those orange overalls

The Ahmed Kathrada Foundation and friends grumbling about the ANC being soft on corruption have ignored the inconvenient truth that the ANC has steadfastly ignored binding remedial action required by the highest court in the country. This stance needs to change if any positive progress is to be made in relation to ending the culture of corruption with impunity abroad in the land.

The Ahmed Kathrada Foundation’s staffers, supported by some 30 civil society organisations, are deserving of congratulations for gathering in St George’s Cathedral, Cape Town during the rehearsal for SONA 2020 to protest against the flaccid response of the ANC to the avalanche of prima facie revelations of grand corruption and State Capture on the part of the more kleptocratic elements in the ANC and SA society in general.

The work of investigative journalists, academics and clerics who write on the topic, as well as the torrent of incriminating evidence at the Zondo commission, are indeed troubling to those desiring a peaceful, prosperous and progressive future for SA.

The “hook” for the gathering was a call in his 2019 Midnight Mass sermon by the Archbishop of Cape Town, Thabo Makgoba, for 2020 to be the “Year of the Orange Overalls” for the corrupt who have hollowed out public institutions and stolen from their poor compatriots on an industrial scale, to the tune of an estimated trillion rand, in recent years.

Those in attendance were united in their concern for the country as it faces the task of ending the culture of corruption with impunity that ever-increasingly marked the wasted Zuma years. If one judges by outward appearances, impunity continues unabated. Only former cabinet minister Bongani Bongo, at national level, and that beleaguered ex-mayor of Durban, Zandile Gumede, can be called biggish fish; hooked, but not yet landed, by the anti-corruption machinery of state. 

The message that corruption kills and that its victims are invariably the poor and the vulnerable in society, was drummed home by a variety of speakers drawn from some of the supporting organisations, from the ranks of former parliamentarians and from BUSA. It is unlikely that any of the speakers on the night have ever voted for any post-liberation formation other than the ANC.

Among them, Andrew Feinstein and Willie Hofmeyr, both former ANC members of Parliament. Solly Mapaila is an SACP bigwig, a formation still in alliance with the ANC. The general practice of introducing oneself to the cathedral by roaring “Amandla!” into the microphone left no doubt that the gathering was largely one of the ANC grumbling about the ANC. The prevalence of green ANC and red SACP T-shirts (zero EFF insignia present) in the audience confirm this observation. The red golf shirt worn by retired Constitutional Court Justice Johann Kriegler, present in his capacity as chair of Freedom Under Law, bore no party political insignia.

Distilling the essence of the two-hour meeting into a digestible short form is no easy task. The traditional Why, What and How questions are perhaps the safest way to do so.

Why then, did so many people interrupt their routines to be present and to support the call of the Archbishop? The concern binding them is one that has resonated down the years. Every good citizen wants the next generation to enjoy a better life. The route to that better life in SA is sketched in and achieved by implementing our national Constitution, especially its Bill of Rights. 

Every good citizen knows that:

The only thing necessary for the triumph of evil is for good men to do nothing.” 

These words were historically attributed to the Irish philosopher, Edmund Burke, who lived from 1729 to 1797. They remain as true now as when he first uttered them.

The concern of those gathered in the cathedral on the eve of SONA 2020 is that the “good” in the ANC is not doing enough to prevent the “triumph of evil”. Treating the public purse as a cow available to the “milking parlour” of every bent Tom, Dick and Harry in a position of political power, is not what the Constitution envisages.

The “What?” question is the time-honoured “what is to be done about grand corruption in SA”?  There was great clarity and universal approval of the notion that orange overalls for those found guilty of corruption ought to be the order of the day in 2020. Feinstein demanded this happy change now, and required that those in banking, business and the professions involved in facilitating grand corruption should get their orange overalls this year too, wherever they are in the world.

Hofmeyr cautioned against instant gratification for those desiring rapid issuing of orange overalls. He pointed to the broken state of the criminal justice administration, to its lack of suitable skills, shortage of resources and experienced staff as well as to the continuing presence of those bent on sabotaging the efforts to hold the corrupt to account. 

Speaking for CASAC, Lawson Naidoo called for an institution of state that is specialised and dedicated to independently fighting the corrupt. He pointed to the weaknesses of the Hawks and the NPA.

The “How to” question was only really addressed obliquely by Naidoo. How the state is going to get to the point at which the issuing of orange overalls is the order of the day is a difficult issue, because the political will to do so has yet to be generated. Grumbling about the status quo is a good start, and if enough people do so, politicians will, as an act of self-preservation, turn their minds to countering the corrupt.

The fact that so many powerful ANC figures, past and present, are alleged to be involved in corrupt activities is a complicating factor that tests the integrity of those not so involved and bedevils the remedial action required.

Thanks to the steadfast efforts of Johannesburg businessman, Bob Glenister, the “How to” questions around corruption have already been addressed by the Constitutional Court. There was nary a mention of this at the AKF meeting. 

The inconvenient truth is that the ANC, including those now grumbling, has steadfastly ignored the binding remedial action required by the highest court in the land. This stance needs to change if any positive progress is to be made in relation to ending the culture of corruption with impunity abroad in the land.

The court ruled in the Glenister litigation that there are five attributes that a constitutionally compliant anti-corruption entity must have. These are called the STIRS criteria where:

S is for a specialised unit dedicated to investigating and prosecuting the corrupt;

T is for properly trained staff, which is equipped to do so;

I is for independence from political influence and               interference;

R is for guaranteed resources sufficient to the task; and

S  is for security of tenure of office.

No ordinary law can achieve compliance with these criteria; a constitutional amendment to create a new Chapter 9 Institution is required. This institution could be called the Integrity Commission or the Independent Commission against Corruption. Its sole mandate will be the preventing, combating, investigating and prosecuting of grand corruption. The NPA will continue to prosecute other crimes and the Hawks will continue to investigate other priority crimes for the NPA’s consideration. The new unit will be a “one-stop shop”. Unlike the Scorpions, it will be insulated against dissolution by the special majority needed to amend Chapter 9 of the Constitution.

None of the criteria legally laid down by the court is appealing to those who are corrupt or who are paralysed by their relationship with the corrupt. The hegemonic control of all levers of power for which the ANC strives does not sit easily with the required independence from executive interference, influence or control. That hegemonic tendency is inconsistent with the values constitutionally laid down by the founders of the new order, one of whom is our current President, Cyril Ramaphosa. He needs to shake off the paralysis and move to do what the court requires. It is the right way to go. DM

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