Three news items on 19 and 20 November 2020 bear analysis. Although they may seem disparate, they are connected in ways that will determine the future trajectory of constitutional democracy in South Africa. Here’s how:
The first item is the announcement that Cabinet has adopted the National Anti-Corruption Strategy (NACS), which is the fruit of the 14 or more months of labour of a working group comprising carefully selected players in government, civil society and academia.
Six pillars have been devised to support a strategy that cannot possibly be a success. The strategists remain stuck in Zuma-era national democratic revolution-style (NDR) thinking and have paid insufficient regard to the rule of law and binding judicial precedent.
They have also overlooked current thinking in the ANC leadership.
The second news item is the unveiling by Jessie Duarte of the general council of the ANC working papers. Careerism (one could be less polite and say “corruption”) in the ANC is bemoaned and some navel-gazing in relation to whether the NDR is on track is in the offing when the general council meets.
The final item is the announcement of the lowering of the investment ratings of SA by Moody’s and Fitch. Inequality of a persistent kind is identified as a factor in their decisions to make SA “junkier” than it has ever been since 1994.
An effort was made by Accountability Now to head off the disastrous adoption of the NACS by Cabinet. An urgent email was dispatched to the president before the announcement was made. Its message has been ignored at the peril of the country. Apart from an automated response acknowledging receipt, no reply has been received: so much for Thuma Mina and participatory democracy.
These developments come against the backdrop of dire economic circumstances in which the only line item in Treasury’s accounts showing growth is in the costs of the borrowings by the nation to keep the ship of state afloat.
The effect of corruption on poverty and inequality was identified and discussed years ago at the Towards Carnegie Three conference held at UCT in 2012.
Pretty obviously so, poverty and inequality – in a society as richly blessed with natural resources and human capital as that of SA – are by-products of the looting from state coffers of funds actually intended for poverty alleviation, service delivery and the rolling out of the rights guaranteed to all in the Bill of Rights. This applies particularly to access to healthcare, education and housing. All three are expensive, but are effective in reducing inequality.
A concentrated effort to alleviate poverty has the welcome side-effect of reducing inequality. The ongoing inequality in SA is destabilising and embarrassing to those seeking new investment in SA, because it frightens off cautious investors who foresee risks ahead for the country as more and more of its citizens are plunged into poverty, hunger and need due to the joblessness that, at least in part, is attributable to the pandemic.
Its handling by way of a fierce lockdown has ravaged what was left of the economy after 25 years of economic policy influenced by the tenets of the NDR. The NDR is the guiding light of the ANC-led alliance that has been in government at national level since 1994.
The radical economic transformation (RET) desired by the governing alliance (or at least some in it) is essentially destructive of the existing economy. It involves slicing the cake into ever more emaciated slices rather than growing the cake exponentially.
While it is true that support from communists, unionists and socialists brought Jacob Zuma to power for two terms, his legacy is not RET – it is a public administration (including SOEs) hollowed out by State Capture and an increase in the Gini coefficient that reveals a widening of the gap between rich and poor.
Both the SA Communist Party and Cosatu have lived to regret their support of Zuma. To call his presidency nine wasted years (as his successor does) is an understatement. Nine destructive years is a more accurate and honest assessment of the damage wrought by the rationally inexplicable popularity of Zuma.
Even his own version of what occurred, giving rise to his unsuccessful prosecution on a charge of rape, ought to have disqualified him from taking on the responsibilities of leadership. His antics before the Zondo commission also betray his lack of commitment to the rule of law and to constitutionalism.
It is futile to attempt to raise billions worth of new investments while trillions in State Capture loot are lying on the table unclaimed due to dysfunction in the criminal justice administration and a terrifying lack of political will in Treasury and those departments of state which should and could recover the loot.
A serious effort to reclaim this loot effectively and efficiently ought to be front and centre of any sane NACS. Instead the thinking of the NDR permeates the NACS. Fear of the looters and their fellow travellers is the unspoken rationale for not addressing looters’ multiple malfeasances.
There is an inability in the NACS to accept the “single agency solution”, which has been adopted by the national executive committee (NEC) of the ANC in a move no one saw coming on 4 August 2020. Also discernible in the NACS is an NDR-based allergy to accepting that executive control of the anti-corruption machinery of state is a legal “no-no”.
This legal conclusion has been in place since 2011 when the Constitutional Court gave judgment in the case now known as Glenister II.
The NACS originators should know that putting lipstick on a pig does not change the essential nature of a pig-in-a-poke. The NACS envisages lots of lipstick while persisting with the manifestly broken system in which the ineffectual Hawks investigate grand corruption and the compromised NPA prosecutes the corrupt who are identified by the Hawks.
The recent post-Zuma introduction of an investigative directorate (ID) in the NPA by presidential proclamation is both a tacit acknowledgement that the multiagency approach in place does not work and an unconstitutional step because the investigation of all priority crimes has been reserved to the Hawks, in terms of the Zuma-era legislation, not the NPA.
Law reform is obviously needed, but the NACS is silent on this topic. At the stroke of a pen the ID can be closed down by the president. So fragile is its lot that to call it independent is risible.
The points on which the NACS strays from what is useful, lawful and constitutional (and indeed on order from the Cabinet by the NEC of the ANC) are many and varied.
The NEC wants the urgent establishment of a permanent stand-alone specialised single agency to “deal with” corruption. Nothing could be further from the minds of those who drafted the NACS.
A list of the more important “dwaalspore” that the NACS envisages, with scant regard to what the NEC wants, would include the following unintended consequences:
- Scare off new investment in SA;
- Set back incipient efforts by the NPA to counter the corrupt;
- Undermine binding court findings, the rule of law (including legislation that is clearly in need of review) and the Constitution;
- Perpetuate the opportunities for committing the crime of corruption with impunity;
- Stifle STIRS-friendly reform of the criminal justice administration. (STIRS is the acronym for the criteria for constitutionally compliant corruption busting set by the courts – Specialised and Trained personnel, Independent structure and operational environment, Resources that are adequate and guaranteed and staff Secure in tenure of office);
- Strangle the necessary independence from executive control, interference and influence a la the “hegemonic control” thinking that informs the NDR;
- Extend or at least perpetuate the crippling lack of security of tenure of office of corruption-busters. Where are Vusi Pikoli, Anwa Dramat, Johan Booysen, Robert McBride and Glynnis Breytenbach now? Their lack of security of tenure of office was their undoing. Their successors are ever mindful of the fact that the law has not been changed to protect worthy public servants of the necessary integrity in the anti-corruption sector. The NACS blithely ignores the circumstances and loopholes that allowed these worrying and depressing career paths;
- Contribute nothing towards resourcing corruption-busting properly, adequately and in guaranteed fashion;
- Keep on life support the illegal and unconstitutional anti-corruption task team (which recently proudly informed Parliament that it managed to finalise 77 cases in the last 10 years) as well as the unconstitutional ID led by Hermione Cronjé in the NPA; and
- Reject the single-agency solution proposed by the NEC resolution announced on 4 August 2020. It is a solution that worked well when the Scorpions enjoyed their few moments of success and is a sine qua non on any proper reading of para 1 of the majority judgment in HSF/Glenister III penned by the Chief Justice in 2014. All of these facts apparently passed by those who formulated and approved the NACS.
The relevance of these developments in Cabinet, the NEC and the working group that produced the NACS to the levels of investment in SA, ought to be the first topic to address at investment conferences of the kind held virtually in Sandton in November 2020.
Lip service is paid to the anti-corruption stance of the ANC on these occasions; lip service with zero credibility among investors of the desired quality and character.
Mercifully, the ANC general council is going to take a good, hard look at the situation that has spawned patronage networks, cronyism, careerism and kleptocracy in the ranks of the tripartite alliance.
The common commitment of the alliance to the tenets of the NDR, and in particular its desire to acquire hegemonic control of all the levers of power in society, is at the root of the careerism and corruption that now marks those who lead the ANC.
The notion of sterling selfless service in the public interest has been swamped by an evil desire for self-enrichment and illegal fundraising for the ANC.
The unpalatable truth is that the values of the NDR are deeply and darkly incompatible with the values of the Constitution. This topic has been discussed in detail previously here.
There is an instruction out from the ANC to expensive top senior counsel to align the NDR with the Constitution, our supreme law. The ANC has repeatedly been told, for free, that this is Mission Impossible unless huge swathes of the NDR are abandoned on the basis that they are inconsistent with the Constitution and should accordingly be regarded as invalid.
Should the deliberations of the general council of the ANC move in the direction of jettisoning those aspects of the NDR that are incompatible with the Constitution, the NACS will have to be rethought; the resolution of the NEC dusted down and reconsidered and the entire trajectory of the ANC will have to be changed.
As the current trajectory is downward, both for the ANC and the country, cool heads and careful consideration are needed.
The NDR is unworkable in the post-pandemic world. It is a good time to abandon it in favour of constitutionalism of the kind envisaged in the Constitution. DM