The abridged reference to the outcome of the Zondo Commission during the State of the Nation Address (Sona) 2022, a subject that is likely to be more interesting to political scientists and commentators than legal scholars with their self-imposed restriction on academic freedom, got me worried and asking: That’s it?
“We are standing together against corruption and ensuring that those who are responsible for State Capture are held responsible for their crimes”, said President Ramaphosa.
My concern is that corruption is a societal ill with extensive networks that hold us back from progressing as a country. Before the Sona, some commentators voiced expectations that corruption and State Capture was the problem to which the President should address himself. And from his initial statement, it sounded as though it would not be much of a talking point.
Towards the end of his address, Ramaphosa announced that it was time to tackle corruption “once and for all”. He observed that the first two parts of the report of the State Capture Commission show that public institutions and state-owned enterprises were infiltrated by a criminal network intent on looting public money.
“The reports have detailed the devastating effects of these criminal activities,” observed Ramaphosa. What is important is that he acknowledged that those who bore the brunt of corruption were the poorest and most vulnerable members of society.
Implementation of the Zondo Commission report is and has always been a crucial concern and the president to some degree tried to allay fears of a possible whitewash of the recommendations by indicating that by no later than June he would “present the plan of action in response to the commission’s recommendations”.
Will this be enough to ensure that the republic is rid of corrupt practices? The “ruinous effects” of corruption and State Capture seem to continue unabated with devastating consequences of even international proportions.
We must never be myopic to the structural deficiencies in state institutions and the negative institutional culture deeply embedded at the heart of these institutions. We can jail as many people as possible and as many high-profile individuals and elites as possible, but the painful reality is that this is no guarantee to ending corrupt practices. The 2021 Transparency International Corruption Perception Index report indicates South Africa is stuck in the claws of corruption.
What the country is lacking as a building block for a corruption-free society is horizontal accountability — not that I see no value in vertical accountability. Until South African state institutions exhibit the capacity to check abuses by other public agencies and branches of government, the fight against corruption is a losing battle.
Further, these state departments, institutions and agencies must be able to report sideways. It should not end there. Institutions such as the National Assembly and the NPA must bite or be defanged for good. What good does it serve to overspend much-needed resources on the enforcement agencies when they continue to fail even when the existing legislative environment legally enables them to take action?
In his speech, the president also referred to the Zondo Commission reports and the governance by charlatans in state institutions and agencies. He stressed that something must be done to ensure that corruption never happens again.
“Discussions are under way with the judiciary for the creation of special court rolls for state capture and corruption cases,” announced Ramaphosa.
The prospect of having arrangements with the judiciary for special court rolls for State Capture and corruption cases is a welcome development and part of the multi-pronged strategy to fighting corruption. These arrangements can only work if they are part of a broader process for monitoring the modalities of the prosecution of corruption.
Monitoring the process from the point of investigation and trials has been proven globally to be one of the favoured approaches for assessing the effectiveness and quality of the criminal justice response to corruption.
It is important to underscore the fact that the current criminal laws and procedure framework are not necessarily unsatisfactory for the processing of serious and complex cases such as State Capture. What seems to be the problem is the ineffectiveness of the institutions in place — for reasons unknown to an ordinary person.
We must admit, however, that the issue of fighting corruption has become an exhausted and monotonous subject of Sonas since the dawn of democracy. It is not necessarily becoming uninteresting. However, it is continuing to excite the question of whether what is being said and done is meaningful or just cosmetic and intended to pacify the public. Also, it seriously questions both political and public accountability when it comes to moving in against corruption.
There is a saying that leaders and elites can each be hawkish, benefiting from conflict, or dovish and prefer peace. Lying in between the two extreme characterisations of leadership is political judgment and the ordinary citizens as the “political judgment problem”.
Citing the political judgment problem with regard to ordinary citizens, in this instance, I am referring to citizens who look the other way or drum on empty vessels when faced with, or witness corruption.
Perhaps it is a sign of pessimism of a population whose elected representatives so far, since the dawn of democracy, have not always reflected the preferences of the citizens they represent. Democracies in transition tend to better represent the preferences of affluent citizens, to the disadvantage of the vulnerable.
The public still has some power to hold the government accountable.
“In authoritarian contexts where control rests with a few, social movements are the last remaining check on power. It is the collective power held by ordinary people from all walks of life that will ultimately deliver accountability”, said Daniel Eriksson, CEO of the Transparency International Secretariat. DM