After a spell as secretary general of the ANC and a sabbatical in the world of business, Cyril Ramaphosa served as deputy president of the ANC from 2012 until Jacob Zuma was deposed on 14 February 2018.
During this period State Capture was in full swing. Ramaphosa was in charge of cadre deployment in Luthuli House. He has been head of state since the fall of Zuma and will apparently be the ANC presidential candidate in the general election of 2024.
The slick CR17 campaign for presidency of the ANC saw some business leaders and senior journalists supporting the notions of renewal and unity punted by Ramaphosa. His platform was an anti-corruption one, so it is more than a little ironic that the support of DD Mabuza had to be elicited to amass the necessary number of votes to win at Nasrec.
While the president expresses his “shock” and “surprise” all too frequently and is also often “appalled” by the developments in the land, he shows no contrition for leading the ANC into the status of “Accused Number One” (his terminology) at the Zondo Commission. Despite its findings to the contrary, he clings tenaciously to the illegal and unconstitutional practice of cadre deployment of loyal members of the ANC to all of the available levers of power in society.
The courts have long ago ruled against cadre deployment and the Constitution itself prescribes “good human-resource management and career-development practices to maximise human potential” for the public administration. Holding on to cadre deployment instead gives an indication of the lack of respect for the rule of law that is hidden behind the façades of bonhomie and bafflement that characterise the leadership of Ramaphosa.
The announcement in August 2023 that, after talking about it endlessly, Cabinet has approved a new, as yet unpublished, bill aimed at making the Investigating Directorate of the National Prosecuting Authority “permanent” is simply further proof of the lack of bona fides of the leadership of SA.
Although he drew polite applause in the Johannesburg City Hall at the 20 August celebration of UDF40 when he mentioned the need to wake up the police and to counter corruption, he made no mention of how these worthy goals are achievable. When the ID was set up by presidential proclamation in 2019 its lack of constitutionality was immediately pointed out.
ID lacks independence
The ID has been tolerated as an urgent stop-gap measure, it cannot be allowed to continue as a “permanent” response to the looting, kleptocracy and State Capture-style serious corruption that is ongoing in SA. The law requires that the ID, as part of the public administration, must be established on the basis that “efficient, economic and effective use of resources must be promoted” in SA.
The ID has hitherto demonstrated that it has none of these attributes. Nor will it be able to recruit suitable new staff capable of countering serious corruption for the simple reason that no such staff would be seen dead at the ID. With only 97 current cases on its plate in four years, the ID ought to expand its capacity one hundredfold. It can’t.
The law also requires that our anti-corruption entity should be adequately independent of the executive branch of government and secure in its tenure of office. These attributes were laid down in binding terms by the Constitutional Court in the Glenister litigation both in its orders and in the decision that informed the orders.
They have not characterised the Hawks, who are currently tasked with the investigation of serious corruption in terms of the Police Act, notwithstanding the establishment of the ID by a presidential proclamation. One that cocks a snook at the decision of Parliament to reserve the investigation of serious corruption to the Hawks, a mere police unit which is accountable to the national commissioner of police who answers to the minister of police.
Transferring investigative functions to the ID will not address these shortcomings. The ID is accountable to the National Director of Public Prosecutions who in turn falls under the “final responsibility” of the minister of justice. These facts are not a basis for structural and operational independence of the kind our international obligations under the UN Convention against Corruption require.
There was no mention of these obligations in the family meeting later on 20 August, when the president enlightened the public on the upcoming BRICS Summit, a forum that studiously avoids all mention of corruption as a scourge of our times.
Investigating Directorate Against Corruption
As to the so-called “permanence” of the planned Idac: the envisaged legislation has been hailed in some quarters as the new “Scorpions 2.0”. The trouble with creating the new entity by way of ordinary legislation is that it renders the security of tenure of the new entity no better than that of the Scorpions. As a mere creature of statute, the Scorpions were vulnerable to closure at the instance of a simple majority in Parliament; they were dissolved accordingly.
The position of the new Idac will be indistinguishable from that of the Scorpions. It will not enjoy the secure tenure of office that the law requires. The next feral elite that emerges will be able to similarly summarily close down Idac.
In an effort to engage with the NPA leadership on the topic, Accountability Now wrote on 11 August 2023 pointing out the following:
“It is hoped that you, as the leadership of NPA, will draw to the attention of the ministry of justice, which avoids engaging with us, that in terms of:
- Glenister 1, the phrase “functions incidental to instituting criminal proceedings” as used in section 179(2) of the Constitution does not include investigative work.
- The Police Amendment Act that was introduced after the Scorpions were dissolved, the investigation of priority crimes is reserved by parliament to the DPCI, a unit within the police that is “dedicated to the prevention, investigation and combating of national priority offences”, (serious corruption, inter alia,) under its section 20 (b).
- Glenister 2, the Stirs criteria were made law in a manner that, while it is not prescriptive as to form, is binding on government as to substance. In other words, the criteria must be in place in the entity envisaged in the court’s (joint majority judgment) interpretation of the international and human rights constitutional obligations of the state.
- Glenister 3, a single independent entity (NOT a multiplicity of entities) which is Stirs compliant is required by law to counter serious corruption. The new Idac will answer both to the NDPP and to the Minister. Its funding will fall under the control of the DG of Justice. Accounting only to parliament is what Glenister 2 requires, with freedom from the control of the executive.
- The report of the Zondo Commission, it is apparent that the system in place to counter serious corruption since 2014 (with DPCI doing investigative work and the NPA the prosecuting) has not worked either structurally or operationally and is vulnerable to State Capture itself via the illegal and unconstitutional practice of cadre deployment in the ranks of the police and the NPA.
- The annual reports of both the NPA and the SAPS, a huge backlog of anti-corruption work exists and has grown year on year for more than a decade.
- The minister’s own recent replies to questions asked in parliament by the shadow minister of justice, reflect that only a tiny part of the backlog is being addressed currently and that the loot that has been frozen or forfeited represents a tiny fraction of the estimated loot amassed due to State Capture, covidpreneurism and ongoing tenderpreneurism. It seems the backlog is growing faster than it is being addressed.
- The minister’s interpretation of the ratio in Glenister 2, as spelt out on 6 February 2023 by him at the Countering the Corrupt Conference held at UCT, is plain wrong in that he seeks to rely on the main judgment when it is the majority judgment which sets the Stirs criteria that are binding on the state.
- The ID’s current structure and functioning, it is not constitutionally compliant. It serves at the pleasure of the president, executive control of the crudest kind.
- The cabinet proposal to make the ID “permanent” is not constitutionally compliant, given the circumstances set out above taken together with the ID’s inherent lack of independence and secure tenure of office, two of the Stirs criteria, quite apart from the lack of trained specialists (now beyond the recruitment capacity of the NPA due to the sad history of the Scorpions) and the lack of resources needed to fight fire with fire in a Stirs compliant way.”
On 14 August 2023, during a civil society engagement with the NPA, Adv Anton du Plessis of the NPA acknowledged that the communication quoted from above had been received and would get a reply. He hinted that the NPA interprets the seminal Glenister decision in a different way to that in which Accountability Now does.
Alarmed by this remark and fearing that the NPA may be going down the same cul de sac as the minister of justice, a follow-up email was despatched.
In that communication, the following appears:
“We appeal to you not to follow cabinet into the unconstitutional cul de sac of trying to establish Idac. It is one thing for a national prosecuting authority to be run as a programme of the Department of Justice and entirely another to have trained specialists in anti-corruption activities operating in the way envisaged by the majority in Glenister 2. The precedent so set is binding on the NPA and government, both executive and legislature, as all were parties to the litigation. If the NPA respects the rule of law, as it surely does, and properly interprets the Glenister trilogy, it will not support the IDAC bill. Should the NPA produce a constitutionally compliant solution to the current dysfunction that is better than that of the DA or Accountability Now, we would welcome it. In the best traditions of its Concerned Members Group, it is time for the NPA to assert its own vital interest in the appropriate reform of the capacity of the state to counter corruption in a constitutionally compliant manner. If this entails relinquishing serious corruption from the mandate of the NPA due to the ravages of State Capture on it, it is a small sacrifice to make in the interests of the people of SA and the supremacy of the rule of law. You say you aspire to becoming the peoples’ advocates again. Supporting Idac’s establishment is no way to do so.
“Recovery from the precipice on which we all now teeter requires the state to rake back loot swiftly, prosecute those involved in State Capture and serious corruption effectively and efficiently, by performing diligently and without delay as is required by the provisions of sections 195(1) read with 237 of the Constitution and your oaths of office.”
The response to this communication from the spin doctor at the NPA is worth quoting for its surprise value:
“The NPA does not intend engaging in a lengthy debate about these complex matters over email. Your points provide a good overview of your perspectives on the NPA Amendment Bill. As we mentioned during the CSO roundtable on Monday this week, the NPA holds a different view on key aspects of the judgments, especially in relation to the constitutionality of the new expanded Idac.
“The legislative development process is managed by the DOJ&CD and the NPA Amendment Bill was recently approved by Cabinet. We expect it will be tabled in Parliament soon. Any further engagement on the above matter must be directed to the Minister, who is constitutionally responsible for tabling the said Amendment Bill in Parliament. You will also have an opportunity to raise your issues with Parliament when the Bill reaches that forum.”
To summarise: the NPA is not prepared to explain its response to the most important recent bill affecting its future and requires Accountability Now to raise its issues with Parliament. It is unmoved by the ministerial lack of responsiveness.
The shadow minister of justice, with whom Accountability Now has already raised the issues in question, has promised to tear the “permanent ID” bill to shreds in parliamentary debate and to impugn its constitutionality if it ever becomes law.
Expect nothing that properly addresses the scourge of corruption from the president, his Cabinet and our NPA. The Accountability Now proposals, offered as mere suggestions in the spirit of thuma mina by engaged citizens who do participate in upholding democracy, have been in the public domain since August 2021 and on the president’s desk since then.
They are supported by the Defend Our Democracy campaign, the IFP, the DA, the Anglican and Catholic Church leadership and by Thuli Madonsela.
They are ignored by the executive but are being considered by Parliament. They are available for public scrutiny, comment and suggestions for improvement.
The President’s call at the UDF40 celebration for active participation by an engaged citizenry in SA rings hollow. It is now exactly two years since he received the suggested drafts for countering corruption in a constitutionally compliant way. So far, no response other than the Cabinet approval of the ill-considered Idac bill. DM