William Baepi calls himself a “street patroller”. He lives in Meadowlands, Soweto and recently had the opportunity of engaging in a lively way with the secretary general of the ANC, Gwede Mantashe, when the latter did some door-to-door canvassing in Soweto. The exchange covered a variety of topics, one of which touched on the subject of corruption in South Africa today.
Baepi apparently asked Mantashe whether the ANC has a strategy for dealing with corruption. The press coverage of their discussion of the topic goes no further than an acknowledgement by Mantashe that there is a problem with corruption in South Africa today.
The electioneering of the ANC is built around the theme that it has a “good story to tell”. Whilst it is true that in respect of many aspects of service delivery there is indeed a good story to tell, the truth in respect of corruption is that there is no good story to tell, just a tall story.
Under the Mbeki administration the need to combat corruption effectively was recognised. Between them, then Minister of Justice Penuel Maduna and then National Director of Public Prosecutions, Bulelani Ngcuka, came up with the idea of the Scorpions, a unit within the National Prosecuting Authority that was able to tackle corruption with zeal and independence. The Directorate of Special Operations, to give the Scorpions their official title, was legislated, created, resourced and trained in the so-called troika methodology of corruption busting. This involved close co-operation between prosecutors, investigators and forensic experts.
The Scorpions did very well. Indeed, after receiving training from the appropriate experts in the FBI and at Scotland Yard they were able to mount investigations in a way that can accurately be described as acting without fear, favour or prejudice. It was the Scorpions who brought former police chief and Interpol head, Jackie Selebi to book. A strategy to deal with corruption that works well enough to unseat a chief of police is a good one.
However, at its sea-change Polokwane conference in 2007 the ANC resolved that the Scorpions be dissolved as a matter of urgency and replaced with a unit within SAPS. The self-same Gwede Mantashe candidly conceded to Helen Zille at the time that too many ANC politicians were receiving the unwanted attention of the Scorpions and that it was for this reason that they were to be disbanded. The travelgate scandal and the unusual and less than legal fund-raising efforts of the ANC were too much for the conference to bear or abandon, the dissolution of the Scorpions was seen as the way to prevent such embarrassments in the future. At the time attention was drawn by the official opposition to the need to protect prominent members of the governing alliance. “Besides the seven convicted criminals on the ANC’s national executive committee (NEC), six NEC members are currently the subjects of on-going criminal investigations. At least two of these are under investigation by the Directorate of Special Operations (DSO)” the DA grumbled.
All too soon the Scorpions, despite valiant litigation to save them, were history and they were replaced by the Hawks, or Directorate of Priority Crime Investigation, a police unit. Their work rate fell dramatically when compared with that of their predecessors. According to the annual reporting of the National Prosecuting Authority (NPA) the number of new investigations fell by 85%, while the value of contraband under attachment fell by a staggering 99.1% from over R4 billion to just R35 million.
Further litigation around the lack of an ANC strategy to deal with corruption led to a finding that the enabling legislation for the Hawks was unconstitutional to the extent that it failed to create a sufficiently independent body to be an effective anti-corruption entity. Parliament was given 18 months to remedy the situation. It took the full 18 months to do so, coming up with a new system that has rightly been described as the “tweaking” of the Hawks legislation.
Both the original litigant, the indefatigable Bob Glenister, and the Helen Suzman Foundation impugned the new legislation in proceedings in the Cape High Court in 2013. That court struck down some of the provisions of the new act, but not all of those attacked in the two cases brought and heard together. There will be a further hearing in the matters in the Constitutional Court in May 2014, shortly after the elections, in which these parties will contend afresh that the scheme of the new act is lacking, while the state will stoutly defend the re-incarnation of the Hawks.
If it is so that the Scorpions were closed for the reason admitted by Mantashe, then there is and remains no strategy, and indeed no political will, for the ANC to combat corruption effectively. There is only lip-service to the idea.
An independent and effective anti-corruption entity has to be imbued with certain characteristics that enable and empower it. There must be specialisation in the sense that a dedicated body is required. Fighting the corrupt is not a part-time pursuit. Properly trained personnel (a la the Scorpions preparations for service with the FBI and Scotland Yard) are needed and they need to be generously resourced in a manner that is guaranteed by law so that feral governors are not in a position to confiscate the energy and finances that drive the anti-corruption unit. Most importantly the anti-corruption unit must enjoy security of tenure of office. This is where the Scorpions were vulnerable. A mere majority of 50% in parliament was able to seal their fate. Had they been housed in a Chapter Nine Institution this would not have been the case.
It follows that any strategy to combat corruption must have a specialised, well trained, properly resourced anti-corruption unit that enjoys security of tenure of office.
The ANC is lacking in the political will to do this, hence the mere tweaking of the Hawks and the adverse finding in the Cape High Court; one that is likely to be upheld, or even expanded in the upcoming hearing.
The answers that Gwede Mantashe gave when he canvassed door-to-door in Soweto are not satisfactory. Nor can they ever be while the ANC pays lip service to its notion of anti-corruption strategies. While the political will to create an adequately independent anti-corruption entity is lacking, the ANC will continue to have no viable strategy to combat corruption. It will continue to flounder to the chagrin of the voting public and it will continue to lose support at the polls. Whether the support is lost to a sufficient extent to bring the ANC back to its senses in relation to fighting corruption is an open question. It is possible that the ANC has become so enmeshed in protecting the corrupt, which was the initial intention behind the dissolution of the Scorpions, that it is incapable of developing the necessary strategy to deal adequately with corruption.
It is instructive that a person who describes himself as a street patroller in Soweto is able to put his finger on the essential weakness of the ANC with a single question. The ANC has a tall story to tell on its commitment to fighting corruption. It lacks the political will to form an adequately independent anti-corruption entity and will continue to do so while so many of its leaders are involved in the type of activity that would attract the unwanted attention of a truly independent anti-corruption unit. The fiasco around Nkandla is but an isolated example of this. It is not only the task of the courts to generate the necessary environment to put the right legislative framework in place. It is also the duty of every voter to decide whether it is wise to support a party that has such a tall story to tell on its commitment to fighting corruption and no political will to do so.
Paul Hoffman SC
14 April 2014.