There are lessons to be learnt from the revelations made by former Eskom CEO André De Ruyter when he spilt the beans on malfeasance at Eskom, pointing to involvement of senior ANC politicians in siphoning off about a billion rand a month.
The ANC, dwelling as it does in some parallel universe, let ANC Secretary-General Fikile Mbalula issue a furious but misinformative denial of corruption on its part. His obviously fact-free bluster implies that the report of the State Capture Commission is a work of fiction. The ANC ignores the 45 Eskom-linked individuals who are fingered in that report – a report which has been accepted by government with an undertaking to implement its recommendations.
The response of the President to De Ruyter’s remarks is even more revealing. Remember, the President regards the ANC as “Accused Number One” in the State Capture debacle. The Chief Justice has identified ANC cadre deployment practices as a major causative factor. The President is reported to have reacted with shock to De Ruyter’s informative interview:
“We were most concerned about his utterances and what immediately came to [my] mind was that André de Ruyter, being the person at the level of group chief executive officer, should have gone to any of our institutions with the information that he purports to have because those are institutions that are independent, where there won’t be any form of interference, diversion, blockage or even any form of subterfuge.”
In one sentence the President has, perhaps inadvertently, revealed his appreciation of the problems confronting the countering of serious corruption in SA, the obstacles to achieving zero tolerance of corrupt practices and the structural and operational constraints on doing so under the circumstances that currently prevail in SA, in which “interference, diversion, blockage and subterfuge” are rife.
It is tempting to look no further than the contrasting responses summarised above. They both can’t be right.
The legal position is clear, but is not well understood in government circles, both in Cabinet and in Parliament. The requirements of the law for anti-corruption machinery of state were laid down in binding terms by the Constitutional Court on 17 March 2011 in a seminal joint judgment of Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron in the case known as Glenister II.
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In the same case, a minority judgment penned by the then Chief Justice, Sandile Ngcobo, was delivered as the main judgment in the matter because it dealt with all the points in the case. The majority disagreed with it on only two aspects.
First, the impact of corruption on human rights was accorded great weight, and complex consequences, by the majority, but was downplayed by the minority.
Second, the majority viewed the international obligations undertaken by SA as a good reason to insist on an adequately independent anti-corruption entity capable of countering the corrupt efficiently and effectively, as is required by Section 195(1)(b) of the Constitution.
The minority viewed the first incarnation of the Hawks as adequate. Now in their third incarnation (after tinkering by Parliament in 2012 and adjustments by the Constitutional Court itself in 2014), the Hawks are still inadequate to the task of effectively countering serious corruption, as is demonstrated by the findings of fact in the State Capture Commission report. Since the demise of the Scorpions, the country has been without proper anti-corruption machinery.
The law, as spelt out in the majority judgment, prescribes five main binding attributes or criteria for the anti-corruption entity. These have become known as the STIRS criteria, for Specialised, Trained, Independent, Resourced in guaranteed terms, and Secure in tenure of office.
After the demise of the Scorpions, summarily closed down at the behest of the Zuma-infatuated ANC, the investigative work of the anti-corruption entity has been the task of the Hawks and the prosecutorial function that of the National Prosecuting Authority (NPA).
Previously, and with great success, these two functions were combined in a single NPA-based entity, the Scorpions, who did not hesitate to prosecute the powerful, including 150 Travelgate parliamentarians; the chief of police, Jackie Selebi; Schabir Shaik; and the Chief Whip of the ANC in the Nineties, Tony Yengeni.
Gutting the guardians
These successes did not endear the Scorpions to ANC politicians, hence the firm resolve to close down what was an effective and efficient NPA unit. As a mere creature of statute, it was easy to do so.
Not content with this “reform”, the Zuma administration proceeded to gut the NPA. It is now a hollowed-out caricature of its former self. New leaders of the NPA complain of saboteurs in the ranks who see to it that serious corruption cases do not reach court, or if they do, they come to a sticky end.
The Zuma-era head of the NPA, Advocate Mxolisi Nxasana, was bribed to give up his post after he let it be known that he would prosecute corruption in high places. No prosecutions have followed.
Let’s not forget mendacious Menzi Simelane, who most un-independently announced, upon arriving at the NPA, that he aimed to implement the ANC’s vision (aka hegemonic control) there. He was sent packing by the judiciary.
The first head of the new Investigating Directorate (ID) of the NPA, advocate Hermione Cronjé, clashed with the current leadership of the NPA and was asked to resign. She did so in preference to leading a life of frustration at the unwillingness of the said leadership to get to grips with grand corruption in SA.
Prosecutors willing to go after the politically well connected have been eased out of the NPA. For example, Gerrie Nel now works for AfriForum, having successfully prosecuted Jackie Selebi, and Glynnis Breytenbach, tormentor of Richard Mdluli and Julius Malema, is now the DA’s shadow minister of justice.
The Hawks have never been fit for purpose. The anti-corruption agency is meant to be specialised. The Hawks are required to deal with all manner of “priority crimes”. In their entire existence they have not landed any “big fish”. Their arrest rates declined from a high of 14,793 in 2010/11 to a mere 5,847 in 2014/15, and have declined further since then.
They do not enjoy the clout that corruption-busters need. Their ranks are thin, with an unacceptably high vacancy rate. Their expertise in complex corruption cases is lacking. They are unable, as a mere police unit, to attract the skilled staff needed to get to the bottom of devilishly devious corruption schemes. Government itself currently plans to shift investigative work now done by the Hawks to the ID.
Leading members of the Hawks have sticky endings in their professional careers. General Anwa Dramat, its first leader, was eased into early retirement after he tried to get his hands on the Nkandla dockets.
Shadrack Sibiya was falsely accused of rendition and parted company with the Hawks, as did Johann Booysen, who was willing to go after friends of the Zumas.
Even the odious Berning Ntlemeza did not see out his term of office as leader of the Hawks, appointed as such despite high court credibility findings against him.
Upgrading the ID to the status previously enjoyed by the Scorpions will not cure the ongoing failure to implement the STIRS criteria. The Scorpions were closed because they did not enjoy secure tenure of office. The so-called “permanent” version of the ID will be no better off.
No one worth their salt will want to work for the planned new version of the ID because of the sad fate of the Scorpions.
The President asserts that those responsible for investigating the allegations of serious corruption at Eskom are independent. They are not.
The Constitution itself places the NPA under the “final responsibility” of the minister of justice. The director-general in the department of justice serves as the accounting officer of the NPA. While the NPA is required to act without fear, favour or prejudice, these features of its structure render it less than independent.
When the NPA was led by Vusi Pikoli (and included the Scorpions), attempts were made to prosecute Jackie Selebi and Jacob Zuma. Pikoli was suspended for going after Selebi and fired for going after Zuma. He won a generous settlement when he sued for wrongful dismissal, but he did not get his job back.
Mxolisi Nxasana’s fate is a morality tale that does the independence of the NPA no credit. Indeed, no leader of the NPA has seen out his term of office.
The Hawks are a mere police unit. It is risible to suggest that they are independent. They answer to the national commissioner of police who, in turn, is accountable to the minister of police, himself a suspect in a corruption investigation that has dragged on since 2010.
The President suggests there will be no interference in the investigation of the allegations made about Eskom wrongdoing. That is not the track record alluded to in the examples cited above. What has changed?
The investigation of the allegations of corruption against Bheki Cele, current minister of police, also former (but disgraced) chief of police, has been allowed to rotate between the Hawks (who could not work up a prosecution-ready docket) to the ID, tasked to take over the investigation by current NPA head Shamila Batohi, and back to the Hawks, at the insistence of current ID head, Andrea Johnson, who sees nothing irrational in requiring the Hawks to investigate their own minister. Needless to say, no progress has been made with the investigation.
Perhaps the President can explain why it is that in the absence of any “blockage”, to use his term, so little progress has been made on the investigation of Bheki Cele by both the Hawks and the ID. The allegations, the findings of the OPP and the Moloi Board of Inquiry are more than a decade old. Why should it suddenly be any different now that Eskom malfeasance is in the open? The NPA lacks the “army of prosecutors” the Chief Justice envisages, hence the blockages in the system.
Government is bound to implement the STIRS criteria; this is a requirement of the Constitution as spelt out in Section 165(5) thereof. The reliance of the ministry of justice upon the non-binding judgment of the minority in Glenister II, instead of its inevitable eventual acceptance of the binding nature of the finding of the majority, informs the current policy direction of the government and its plans to make the ID what it calls “permanent”.
This error in interpretation, persisted in long after the error has been identified, points to subterfuge in the formulation of the necessary reform of the anti-corruption capacity of the state.
Government should bite the bullet, accept the applicability of the STIRS criteria and come up with a reform package that meets those criteria, in place of its current thoroughly underwhelming plans to upgrade the ID. If it does not, its subterfuge will be exposed for all to see.
It is the function of Parliament to oversee the implementation of legislation it passes. The implementation of laws meant to serve the STIRS criteria has not passed muster. SA has been without a STIRS-compliant anti-corruption entity since the closure of the Scorpions.
The current circumstances in the country cry out for the establishment of an entity that is STIRS compliant. Instead of expressing concern, the President should be working on the reforms needed. DM