It has been widely suggested that voters will regard countering corruption as an overarching issue in the upcoming local government elections to be held in South Africa on 1 November 2021.
There is merit in this suggestion, not only because corruption is a major problem in South Africa, but also because the ability of local government to deliver on the promises of the Constitution must necessarily be compromised while corruption goes unchecked. This crippling of service delivery occurs when the billions of rands diverted to the pockets of the corrupt are not available for implementing the law, as has occurred during the State Capture period that will be the main topic of the upcoming report of the Zondo Commission.
Our justiciable Bill of Rights promises a great deal to the people of South Africa and a large part of performing that occurs at local government level. When water, food, shelter and electricity are all in short supply, it is at local government level that the shoe pinches.
The recent Afrobarometer Survey indicates that most of the people of South Africa are suspicious of the integrity of those who govern, politicians and public servants alike. There is a perception abroad in the land that corruption without consequences is rife. The perception is grounded in reality when regard is had to the work of the investigative journalists of South Africa, the reports of the Special Investigating Unit and the (somewhat limited) output of the Hawks and prosecution service too.
It seems to be inescapable that the spectre of corruption should hang over the local government elections.
Under these circumstances, one would think that the political parties engaged in the battle for votes would acquaint themselves with what the law requires of the state in relation to corruption and align their campaigns with a best-practice solution to the current challenges posed by the corrupt.
Sadly, it appears that nothing could be further from the truth.
The law on corruption is clear: police are required to prevent and combat it along with all other crimes. The Hawks, a priority crimes unit, has been established to deal with corruption among other priority crimes. The prosecution service is required to prosecute the corrupt. The courts determine the guilt of those brought to trial and those found guilty are punished in accordance with the rules that apply to correctional services. What could be simpler?
The courts have, in binding decisions in the Glenister litigation waged between 2008 and 2014, given considerable attention to the scourge of corruption. They have interpreted and refined the basics by having regard to the international obligations of South Africa and by creatively regarding corruption as a human rights issue. Internationally, South Africa has bound itself to keep and maintain independent corruption-busters. As a human rights issue, the countering of corruption involves the establishment of machinery of state that is specialised, well-trained, independent, properly resourced and secure in tenure of office. These are the well-known Stirs criteria that summarise the binding decisions of the Constitutional Court.
The problem in South Africa today is that the Hawks is not Stirs compliant in any way, shape or form. Moreover, the prosecution service is compromised, hollowed out, infested with “saboteurs” deployed to protect the corrupt and is short of suitable staff and resources. Corrupt people who land in prison (by some miracle) are wont to secure quick release on some or other flimsy and questionable pretext. Only the courts stand firm in their resolve to eradicate (the verb chosen by the Chief Justice) corruption before it becomes a terminal condition for South Africa.
All political parties tell the electorate that they respect the rule of law and the binding nature of the final findings of the courts. None of them has come up with a means of properly implementing the law as set out by the courts in the Glenister cases.
It is true that 14 months ago the NEC of the ANC passed a resolution calling upon Cabinet urgently to establish a new stand-alone body that is permanent and independent. Nothing has come of that resolution and no one is saying why.
Voters should be insisting that their party of choice should embrace the idea of a single anti-corruption entity, protected by its Chapter 9 status against executive interference and capable of preventing, combating, investigating and prosecuting the corrupt in our midst. Anything less simply won’t do.
In March 2019, the IFP asked the president to give priority consideration to establishing a new Chapter 9 Integrity Commission to deal with the corrupt. He promised to mull it over and in his 2021 Sona suggested that a new body, which reports to Parliament, is under contemplation, not as a matter of urgency, but as the product of the work of an advisory council that has yet to be appointed.
The DA has asked the parliamentary legal drafting team to work up legislation that addresses the shortcomings of the Hawks (but not the NPA). The EFF has suggested that anti-corruption mechanisms be established at local level to act as a bulwark against kleptocracy, corruption and State Capture.
Quite apart from the lack of urgency of all politicians (it should be remembered that the last Glenister decision was in 2014) there is no engagement on the best way to implement the Stirs criteria. It is clear that the Hawks have failed dismally. It will also be many years before the NPA is restored to its former glory. It seems obvious that a new Chapter 9 anti-corruption body is what is needed, but no one participating in the elections is saying so.
The ANC expresses the need for renewal in its ranks while it continues to harbour known crooks in its leadership. The DA fudges on its “we don’t tolerate corruption” line while the IFP now calls for reform of the courts without having regard to the fact that proper investigation and prosecution of cases must of necessity precede any findings of courts seized with corruption cases. The courts are the one part of the value chain in countering corruption that do not require reform.
The EFF local government suggestion, while sound, is hardly likely to bring to book those involved in grand corruption as this activity involves solid investigation, forensic expertise and skilled prosecutors, not only increased “municipal internal audit capacity… to pre-empt all forms of corruption”.
Voters should be insisting that their party of choice should embrace the idea of a single anti-corruption entity, protected by its Chapter 9 status against executive interference and capable of preventing, combating, investigating and prosecuting the corrupt in our midst. Anything less simply won’t do. The fact that the political parties are not clear on this issue is an indication that their positions are actually soft on what is needed and on what the courts require of the state as expressed in binding decisions reached.
Under these circumstances, it is incumbent upon voters to lobby their leaders in their parties of choice to wake up and smell the coffee. Make no mistake, corruption has the potential to destroy the state as we envisaged it back in 1994. Corruption is theft from the poor, it undermines all that is valued in our constitutional dispensation and it hobbles the capacity of the state to deliver services properly. There is no good reason to be soft on corruption, not if the promises of the Constitution mean anything to voters. DM