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Rooting out corruption is the duty of law enforcement agencies – and not politicians


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The risk of corruption under the country’s post-Covid-19 recovery will be with us for a long time. It is important not to let our guard down, excited that many of the things we could not do under Levels 5 to 3 can now be done.

Much was said by President Cyril Ramaphosa in his announcement on 15 August that South Africa will be placed on lockdown Level 2. What struck a chord for me is the fact that as a country we have had to endure a lot: “It has been an immensely difficult five months, and the pandemic has taken a heavy toll – on the health of our people, on families and communities, on the public health system, on the economy and on people’s everyday lives”, said Ramaphosa.

The Organisation for Economic Co-operation and Development (OECD) in its document “Policy measures to avoid corruption and bribery in the Covid-19 response and recovery” describes this as a time of “unprecedented challenges of human suffering, uncertainty and major economic disruption on a global scale”.

Ramaphosa takes South Africa out of hard lockdown, lifts cigarette and alcohol ban

Worth noting are the words by Ramaphosa that “we have proven our resilience as a nation over the past five months” and that “the task before us now is to apply the same energies with which we have battled this pandemic to the economic recovery effort”. 

The president also appreciated that the country will have to traverse a long road towards full economic recovery: 

“Even as we open up economic activity, it will take a long time for industries and businesses to recover, and there is much work still to be done,” noted Ramaphosa.

South Africa’s post-Covid economic recovery will be multifaceted, requiring a comprehensive series of innovative legislative, policy, and practical interventions. Consider, for example, the comprehensive blueprint for a post-Covid recovery and building economic resilience issued by the American Sustainable Business Council (ASBC) in April. The strength of such a recovery plan lies with it addressing key issues including putting in place effective policies to encourage small business retention; reframing economic development policy and practices to focus on local business needs and local economies; and banking, finance and procurement practices. Other areas that will need closer attention are health and safety, climate and energy, and food and water security.

Recovery plans must be free from corruption to be sustainable

Anti-corruption is critical in the United Nations’ Sustainable Development Goals (SDG). Thus, any post-Covid-19 recovery plan must take into account the SDG targets on corruption and requires major policy shifts and structural reforms to the economy. The world is replete with examples that corruption is an antithesis to development and economic recovery. To this end, we must implore the government of South Africa to work towards achieving the anti-corruption targets in SDG 16, if it is serious about sustainable post-Covid-19 economic recovery. SDG 16 targets enjoin countries to promote access to justice, transparency, accountability and integrity.

However, it must be conceded that South Africa’s socio-economic recovery will not be easy, and may face some perennial challenges such as corruption. The Desmond and Leah Tutu Foundation correctly warned that corruption will hamper South Africa’s Covid-19 recovery plans. In fact, the risk of corruption during the country’s post-Covid-19 recovery will be with us for a long time. The OECD also noted that Covid-19 responses and recovery plans create endless opportunities for corruption and bribery: “Identifying and addressing corruption risks will thus be crucial to protect trust in public institutions and business, and to galvanise public confidence in the governments’ ability to mobilise an effective crisis response,” noted the OECD.

Thus, it is important not to let our guard down, excited that many of the things we could not do under Levels 5 to 3 can now be done. The ills of corruption are well known and well documented and should never be forgotten as we enter the Covid-19 countrywide economic activities and recovery initiatives.

In her 2015 book, “Thieves of State: Why Corruption Threatens Global Security,” Sarah Chayes, using Afghanistan as a case study, explains the consequence of unchecked corruption. Unchecked corruption is the source of instability, national frustration, and can be the cause for violence or violent protests and people seeking puritanical solutions. Chayes refers to the Afghan government as a vertically integrated criminal network where low-level government officials skim money from the population and the high-level officials loot the money with a guarantee of protection from prosecution.

Corruption and well-planned criminal networks are what we all should be worried about with regard to the government’s economic recovery plans. I do not want to suggest that the South African government is organised in a mafia style, with kleptocrats, skimmers, and thieves waiting to fleece resources earmarked for the post-Covid-19 recovery plan.

Interestingly, however, some of the accusations in the book have been repeated against renowned South African politicians, the government or government officials. For example, investigative journalist Pieter-Louis Myburgh’s book on State Capture was titled “Gangster State: Unravelling Ace Magashule’s Web of Capture”; and a forensic report into the role of individuals and municipalities in the looting of the Venda Building Society (VBS) was titled “The Great Bank Heist”, with allegations implicating key members from the ruling African National Congress (ANC) and the opposition Economic Freedom Fighters (EFF) or those associated with these two parties in corrupt practices.

Leaked emails, dirty cops, State Capture and Ace Magashule unveiled

Former Public Protector Thuli Madonsela’s report on an investigation conducted into allegations of impropriety and unethical conduct relating to the installation and implementation of security and related measures at the private residence of former president Jacob Zuma at Nkandla was titled “Secure in Comfort”. Madonsela’s report on the investigation into allegations of maladministration relating to financial mismanagement, tender irregularities and appointment irregularities against the Passenger Rail Agency of South Africa (Prasa) was aptly titled “Derailed.

As I noted in a previous article in Daily Maverick, the government’s Covid-19 responses with regards the procurement of personal protective equipment (PPE) have been marred by allegations of corruption systematically organised around benefiting ministers, public officials, politicians, and well-connected individuals and their families. 

We must purge corruption from the belly of the Covid-19 beast

Legal, ethical and accountable approach to Covid-19 recovery 

Back to the OECD policy: some measures are notable and should be given priority in South Africa. With regard to accountability and control of the economic recovery measures, the report calls for the integration of anti-corruption risk assessments “throughout programme design and delivery phases, in the areas of economic stimuli, subsidies, official development assistance, and export credits” and that “actual instances of corruption and bribery should be addressed comprehensively, using a whole-of-government approach where possible”. 

The OECD cautioned against the exploitation by unscrupulous and corrupt individuals of the economic and fiscal measures being implemented by the government. A typical case of such exploitation was the abuse of the emergency PPE procurement measures in South Africa.

To use the words of the OECD policy, how the South African government dealt with corruption that may creep in during the recovery phase of the economy will provide “a stress test for public integrity and public financial management systems, and more specifically internal control systems within public organisations”.

I wish I could confidently say that as a country we have everything under control and that we will deal holistically and effectively with corruption. Unfortunately, it would seem that the president’s recalibration of our anti-corruption landscape with regard to Covid-19 is flickering. More concerning is when the oligarchs and politicians are given the authority to investigate their cronies, as with the announcement by Ramaphosa that a six-member Committee of Ministers (CoM) will investigate the corruption in PPE. The CoM is seen as a ruse to exonerate or create doubt regarding the complicity of comrades in the alleged PPE procurement corruption.

For example, the leader of the African Christian Democratic Party (ACDP), Kenneth Meshoe, said the hands of some ministers are not clean and they should not be part of the CoM in the alleged corrupt PPE tenders, and that the investigation should be left to law enforcement agencies such as the Hawks and Special Investigative Unit (SIU).

The EFF slammed the setting up of the CoM as a public relations exercise by the president, likening it to the situation of “a fox investigating why the chickens are missing”.

“The reality is that ministers are at the core of Covid-19 funds looting through a web of front companies meant to hide this truth and cannot investigate any alleged corruption when they are the ones who should be investigated,” said EFF spokesperson Vuyani Pambo.

According to Marianne Merten, writing in Daily Maverick, CoM is “little more than a mirage in the South African desert of good governance. It’s a strategy of being seen to do something, to be responsive to a public outcry at the theft and misdirection of resources to the politically connected — without actually having to do much.”

Recipe for broken governance: Incompetence, Covid-19 tenders and Lockdown narratives of war

If this is how our post-Covid-19 economic recovery plan is to be conducted, then the country should brace itself for the deadliest wave of corruption yet.

With regard to business ethics, internal controls, and compliance, the OECD policy enjoins countries and organisations to “ensure a risk-based approach to good governance, business integrity and internal controls”.

Notable is the call for state-owned enterprises (SoEs) and private sector actors, including small businesses, to “ensure that good governance and internal controls are maintained using a risk-based approach”. Unfortunately, the consequence management the OECD proposal requires for those who fail to comply with the law is not something South Africa is accustomed to. In a normal society, procedural justice and rule of law presumptively disqualify individuals from handling cases that directly affect them. The establishment of this PPE scandal committee provides little solace that in South Africa the government will address corrupt activities impartially within the law and with integrity.

The investigation by the CoM will come back to haunt the legacy of President Ramaphosa. It will also complicate for future governments the long-standing tradition of the separation of powers. The investigation of crime falls neatly into the duties and responsibilities of the law enforcement agencies, and not the politicians. To the public, it might look as if the first thing the government does when it is accused of corruption and corrupt practises is to take the approach of “let us ask them if indeed they are guilty of the said allegations”.

All the above must be read together with the earlier report of the OECD titled “Public integrity for an effective Covid-19 response and recovery” issued in April: 

“Finally, besides the procurement of goods and services required to directly address the current Covid-19 crisis, governments also have to manage ongoing public contracts. Governments, alongside their contracting authorities, must ensure that the suppliers most at risk are in a position to resume normal contract delivery once the outbreak is contained. Public procurement legislation often provides exceptional measures for paying ongoing contracts in emergency situations, for example allowing specific advance payments or exempting suppliers from penalties for the deficient performance of contracts. Such derogations to established practices that govern contractual relationships could open the door to corrupt practices, should those derogations not be subject to transparent guidelines communicated to all contracting authorities.”

In my earlier opinion in Daily Maverick, I referred extensively to how OECD countries like Chile addressed the issue of public procurement corruption, bribery and fraud – with integrity in contracting to be at the centre of doing business with the government. Besides the intermittent and rather knee-jerk response of the government to the PPE scandal in the form of calling for publishing details of individuals or companies that won tenders from government, nothing concrete has been forthcoming detailing viable changes or tightening of South Africa’s corruption-probe procurement measure.

The risk of the perennial problem of ineffective anti-corruption 

Some commentators like comparing South Africa to Singapore when it comes to fighting corruption. This is a false comparison because the Singaporean government takes corruption offences seriously. In his article “Combating corruption in Singapore: a comparative analysis of two scandals”, published in 2020 in Public Administration and Policy Jon ST Quah (a renowned anti-corruption consultant) points to the unfailing resolve and political will of the government of Singapore to fight corruption. Quah uses as examples the scandals involving Teh Cheang Wan, the minister for national development during 1979–1986, and Edwin Yeo, an assistant director of the Corrupt Practices Investigation Bureau (CPIB), who both faced the full might of the anti-corruption law.

The law enforcement agency in Singapore, the CPIB, takes a zero-tolerance approach to corruption and impartially goes after offenders. 

“The effectiveness of Singapore’s policy of zero tolerance for corruption and the CPIB’s impartial enforcement and punishment of all offenders, regardless of their status, position or political affiliation, is reflected in Singapore’s status as the least corrupt Asian country on the CPI from 1995 to 2019…”, wrote Quah. In South Africa, we are yet to have a major casualty of the country’s anti-corruption efforts. The big fish can still swim and survive in the water muddied by State Capture corruption, fraud and theft.

Reports of calls by organisations like the Southern African Catholic Bishops’ Conference (SACBC) for the president “to take action against those implicated in corruption in the procurement of Covid-19 supplies, including the suspension, arrest and prosecution of those involved” are understandable in a country that is yet to demonstrate its political will to deal decisively with corruption. The dispiritedness against inconsequential approaches to corrupt practices is growing and people need tangible action and consequence management.

“We wish to remind the president that the time for inter-ministerial committees, commissions of enquiries and political compromises is now over. We want to see the immediate suspension, investigation, arrests and prosecution of those involved, irrespective of who they are,” reportedly said SACBC President Bishop Sithembele Sipuka.

I am not convinced that the re-establishment of a specialised anti-corruption unit in the approach and manner it is proposed, and the establishment of specialised anti-corruption courts, will be the solution.

The solution is simple: clothe all our anti-corruption agencies and the NPA with efficiency and effectiveness. Address the disparity that exists between the government’s anti-corruption rhetoric and the impunity enjoyed by politicians, public servants, and high-flying individuals. Further, fully support the existing anti-corruption agencies by allowing them real independence to enable them to fulfil their legislative and constitutional mandate effectively.

Otherwise, the re-establishment of a specialised anti-corruption unit will simply be a façade to appease the public. DM


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