August 2021 has been a momentous month for constitutional democracy in SA. The Judicial Commission of Inquiry into Allegations of State Capture, aka the Zondo Commission, reached the end of its evidence-taking and now turns to preparing its report on facts found and recommendations to be made by the end of September 2021.
It is widely expected that the learned acting chief justice will condemn the ANC, identifying its members and supporters as those who captured, or at least created the conditions for the corrupt capture of the state. This wicked process has done untold damage to the fabric of SA society and cost the country over a trillion rand in looting of public funds (plus inevitable, huge, corrosive non-state and private spinoff corruption).
We can’t go on like this; the dissonance between the well-known tenets of the National Democratic Revolution, which motivate the Tripartite ANC Alliance, and the values and principles of the Constitution must end. The commission’s report will concentrate on ways to achieve this worthy, even essential, goal. The ANC practice of “cadre deployment” in the public administration and state-owned enterprises has always been unconstitutional and illegal. The judicial precedent against the ANC use of cadre deployment was set in the Amathole District Municipality case in 2008 and has never been challenged or appealed in any way. It can accordingly be expected that cadre deployment’s demise will feature in the recommendations.
Whether the report deals directly with the unconstitutionality of the “let’s get our hands on all the levers of power in society” mantra of the ANC’s strategy and tactics aimed “with dexterity in tact” at “securing hegemonic control of the levers of power in society” does not matter if the illegality of cadre deployment is dealt with properly. The pernicious practice ought to be confined to purely political positions at most, and not be allowed in the state, the public administration and state-owned enterprises – where so much damage and unchecked looting has taken place in the still ongoing machinations of State Capture, most recently manifesting as covidpreneurism and pro-Zuma protests of criminal proportions.
It is safe to predict that the Zondo Commission ought to be a game-changer for the future trajectory of SA.
The second game-changer is related to the report currently under preparation at the commission. It concerns what needs to be done to prevent the conditions on the ground that have allowed serious corruption with impunity to flourish like khakibos beside a Highveld road during, in particular, the wasted Zuma years.
It is plain that the dissolution of the Scorpions, decided upon at Polokwane in December 2007 by the ANC, and the hollowing out of the prosecution and police services since then facilitated the processes of State Capture. Many police leaders simply joined the looting. Many prosecutors, some since banished, protected the looters and State Capturers.
These abuses of power have worsened the plight of the poor, swelled our ever-increasing levels of unemployment and exacerbated inequality. All these features in a country so well endowed with human and natural resources that, properly managed, it could address its constitutional goals of achieving equality with dignity for all and the fulsome enjoyment of human rights and freedoms through an end to poverty, full employment, and a decent standard of living for all in a safe and clean environment.
These all currently await financing that has been diverted to the pockets of the looters. Education, food, housing and healthcare are all promised to all, in binding terms, in our beautiful Bill of Rights. Due to the corruption in evidence they are not being delivered as they should be.
Noting this, the Constitutional Court decided in 2011 that corruption must be regarded as a violation of human rights, saying:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
In 2014 the chief justice followed up with these trenchant remarks in the last of the Glenister trilogy of Constitutional Court judgments:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.
“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
What has clearly emerged from the evidence given to the Zondo Commission is that the criminal justice administration is in urgent need of radical reform if the state is to be duly bound by the above decisions on corruption as a violation of human rights.
Accountability Now has been talking this talk for many years. In 2012 it proposed some amendments to the law and in 2016 it was allowed an audience by the Constitutional Review Committee of the National Assembly to explain its stance. That committee was chaired by Vincent Smith of the ANC. He now graces the dock in a criminal court facing charges of corruption arising out of his untoward relationship with Bosasa.
The situation has deteriorated considerably since 2016. The end of the Zuma era in 2018 has not caused the turnaround that the reform ticket anti-corruption “New Dawn” leadership promised. Instead, a bit more talking the talk but no walking the walk.
During the last full week of August, Accountability Now turned from talking the talk to walking the walk. Having prepared a detailed constitutional amendment and the necessary enabling legislation for an appropriate and constitutionally compliant successor to the Scorpions, it emailed the suggested drafts to the executive, the legislature and to the National Prosecuting Authority. It seemed a waste of time to send it to the police. The drafts were accompanied by an explanatory memorandum which includes an executive summary worth recording here:
(a) Serious forms of corruption like grand corruption, State Capture and kleptocracy in South Africa are criminal violations of fundamental constitutional and human rights. They are literally killing many South Africans, mostly the poorest.
(b) The anti-corruption machinery of state in SA is currently not fit for purpose especially regarding serious corruption in all its forms. The NEC of the ANC has called for the urgent creation of a new entity that is permanent, specialised, independent and stands alone to deal with corruption.
(c) Our prosecutors and police, due to the ravages of attempted State Capture, lack the required capacity to counter the corrupt efficiently and effectively.
(d) The Constitutional Court, in the Glenister cases, has provided binding criteria for the establishment of functional corruption-busters who are fully able to carry out the international treaty obligations of SA.
(e) That court has called upon Parliament to make “the reasonable decision of a reasonable decision-maker in the circumstances” regarding the countering of corruption.
(f) The current circumstances in SA dictate that a best practice reform is urgently required in order to bolster the country’s vulnerable culture of respect for human rights and boost confidence in its governance and economic prospects.
(g) The ANC, DA and IFP all favour the notion that a new body needs to be established to deal with corruption.
(h) Accountability Now has already prepared a draft enabling legislation and a constitutional amendment so that the necessary constitutionally-compliant next steps can be taken to save the country from the scourge of serious corruption — and the imminent potential of failed state status. The current drafts accompany this memorandum.
The Presidency acknowledged receipt the same day the missive was sent. It seems Parliament has received but has not yet acknowledged receipt of the documents. It has not yet responded to an offer to explain the move orally to the Constitutional Review Committee as was done in 2016. The tellingly telegraphic reaction of the National Prosecuting Authority is worthy of recording in summary:
“Receipt… is acknowledged and the content of the draft legislation has been noted.”
The difference between the stance of Accountability Now in 2012 and now is that the Zondo revelations have persuaded us that it is obviously not enough to bolster the Hawks as the premier corruption investigating body in the land. We consider that the prosecution service is no longer up to the task of taking on cases involving serious corruption. In the NPA leadership’s own words, the institution has been “hollowed out and compromised”, it “lacks the necessary capacity”, and, most forebodingly, it is “infested with saboteurs” put there to protect the State Capture project of the ANC in the Jacob Zuma years.
These factors, taken cumulatively, force one to the conclusion that a new body, free of the unfortunate history, with carefully selected and appointed personnel, is what is actually needed to walk the anti-corruption walk instead of just mouthing platitudes about the topic. Kicking the can down the road won’t do after the July insurrection riots and given the disastrous financial status of the country.
Recouping the huge sums of stolen loot can be done swiftly, if the skill and the political will to do so is mustered. Perceptions that the law is a never-ending series of postponements and delays are not appropriate or accurate in professionally prepared civil litigation aimed at raking back the plundered monies of State Capture. The new body, which may swallow up the famous Special Investigating Unit’s best staff, will be equipped and mandated to recover the loot, swiftly and surely using civil court processes where the onus of proof is lighter and thus more accessible than in the criminal courts. Although it will have adequate and guaranteed resourcing, it will be able to pay for itself in recovered loot that is still swilling around in the usual places here and abroad in which looters try to hide it.
The magic ingredient to make all the changes needed to create a powerful, effective and entrenched body to prevent, combat, investigate and prosecute serious corruption is the generation of the political will to do so.
The response from the prosecution service seems to suggest that it has tacitly acknowledged that it is not up to the task of prosecuting serious corruption and that the one-stop shop, the stand-alone, independent, permanent specialist body the NEC of the ANC itself has called on Cabinet to establish urgently will come as a welcome relief to the hard-pressed prosecutors. It will give them more space and time to do the work that they are still capable of doing in the realms of common law and other crimes.
The generation of healthy political will is also the business of every engaged, responsible and participative citizen of SA. If you are not one already, now is the time to consider the advantages of supporting the initiative taken by Accountability Now. An email to a member of Parliament, a note to the secretary of the Constitutional Review Committee, a word in the ear of the NEC or a well-connected friend is enough to get this South African national anti-failed-state ball rolling. DM