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One false note in a cacophony of corruption busting sentiments

Corruption

Paul Hoffman: Corruption cacophony – is Cyril serious?

by Editor

President Cyril Ramaphosa has vowed to take a hands-on approach to clamping down on corruption related to Covid-19 funds. Finance Minister Tito Mboweni is singing from the same sheet, taking to Twitter to emphasise the government’s dedication to corruption-busting. But there’s a problem with this promise: no meaningful action has yet been taken against the perpetrators of industrial scale state capture over the past decade. Paul Hoffman, director of Accountability Now, asks the questions many people are thinking, in this brilliant review of how the government has dealt with corruption thus far. – Jackie Cameron

One false note in a cacophony of corruption busting sentiments

We should be working together to defeat the virus. Not see this as an opportunity to defraud the State and unwell people. We are watching you and there has to be consequences. For sure. Game over!

— Tito Mboweni (@tito_mboweni) July 26, 2020

The month of July 2020 may go down in SA’s history as a time when the floodgates burst and the spring high tide of anti-corruption sentiment swelled sufficiently to sweep away the structures and strategies put in place in SA during the Zuma era, all of his trickery aimed at enabling corruption with impunity.

It started in a BizNews webinar during which Paul Harris, a co-founder of Rand Merchant Bank, expressed the heartfelt wish to see the restoration of law and order in the land with an end to the impunity enjoyed by the corrupt. [See my review, here]

Then Colin Coleman, now a Yale University senior  fellow, formerly the head of Goldman Sachs in Sub-Saharan Africa, presented a brilliant ten point economic rescue plan to the country during his UCT Vice-Chancellor’s open lecture on 15 July in which the third point may be summarised, in his own words, as:

“A campaign to wage war on the rampant illegal economy in South Africa, and confront tax evasion, fraud, criminality and corruption, and bring an end to State Capture.”

Coleman was closely followed by the UN Secretary General, António Guterres, who had the honour of presenting the Nelson Mandela Annual Lecture on Madiba’s birthday, 18 July. In the course of his hard-hitting virtual lecture he pointed out that:

“We must break the vicious cycle of corruption, which is both a cause and effect of inequality. Corruption reduces and wastes funds available for social protection; it weakens social norms and the rule of law.

And fighting corruption depends on accountability. The greatest guarantee of accountability is a vibrant civil society, including a free, independent media and responsible social media platforms that encourage healthy debate.”

Next, on 20 July, Mike Abel of Saatchi and Saatchi suggested five pivots for SA, the third of which is:

“The country urgently needs an iron fist to deal with corruption. We need to leapfrog our current position of an inability to deal with it in both intent and sheer volume, to be an international leader in having a zero-tolerance for crime and hopefully thereby partner with the international community for ideas, solutions and resources.”

No doubt sensitive to the pressure from the world’s top civil servant and the other three home-grown luminaries, President Cyril Ramaphosa wasted no time in responding during his televised statement to the nation on 23 July 2020.

His focus on the need to end grand corruption with impunity in SA found expression in the following passages from his statement:

“From the outset of our response to the pandemic, we have been quite clear that there should be no scope for corruption in the use of these resources.

More so than at any other time, corruption puts lives at risk.

We therefore put in place several preventative measures…

[W]e have established a collaborative and coordinating centre to strengthen the collective efforts among law enforcement agencies so as to prevent, detect, investigate and prosecute COVID-related corruption.

This centre brings together nine state institutions.

These are the Financial Intelligence Centre, the Independent Police Investigative Directorate, the National Prosecuting Authority, the Hawks, Crime Intelligence and the SAPS Detective Service, the South African Revenue Service, the Special Investigating Unit and the State Security Agency.

With an operational hub at the FIC, this centre is investigating allegations of corruption in areas such as the distribution of food parcels, social relief grants, the procurement of personal protective equipment and other medical supplies, and UIF special COVID-19 scheme.

At least 36 cases are currently at various stages of investigation and prosecution.”

This statement by the president strikes the only false note in the cacophony of anti-corruption sounds in world and local leadership. Lip service and deflection of attention from what really needs doing is the name of his dangerous game.

The president is sworn by his Oath of Office to “obey, observe, uphold and maintain the Constitution and all other law of the Republic.” The law on the anti-corruption machinery of state in SA has been laid down by the Constitutional Court in the Glenister litigation. The judgments of that court in 2011 and 2014 bind the president and his government. The findings are not “nice to haves” they are “must haves”.

The judgments do not envisage a multi-agency approach. This is how the Chief Justice described the requirements of the law in relation to countering corruption through officialdom in the 2014 judgment, when he wrote the majority judgment:

“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.

“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The “we” to whom the learned Chief Justice refers in the second paragraph quoted above is the majority of the Justices of the highest court in the land. What they lay down as the law is binding on those who litigate in our courts. In the words of our supreme law, the Constitution, “an order or decision issued by a court binds all persons to whom and organs of state to which it applies.” The single agency solution set out in the passage quoted above applies to the criminal justice administration and to the president himself. Setting up a Hub with nine spokes is simply illegal.

The Zuma parliament was enjoined by the judgment of the same court in 2011 to make the decision of “a reasonable decision-maker in the circumstances” when giving effect to the judgment in the earlier case. The current pandemic circumstances, the president rightly acknowledges, are not the sort of situation in which corruption can be trifled with by government. The majority in the 2011 matter sent the original Hawks legislation back to parliament because an adequately independent body to counter corruption effectively and efficiently had not been established by it in the successfully impugned legislation before it. It was passed after the Scorpions were dissolved in an act of infamy that directly and indirectly enabled the Zuma state capture project.

In 2011 the court keenly appreciated what was at stake for SA. In the majority judgment in that case, co-authored by Deputy Chief Justice Moseneke and Justice Cameron (both now retired), the following ought to have caught the attention of those who now create a “Hub” of nine agencies to counter Covid-19 related corruption:

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

In the context of the pandemic it bears mention that the right to access to health care services is one of the rights enshrined in the Bill of Rights. That right has been litigated to good effect in the TAC case concerning provision of medication to pregnant AIDS sufferers.

The president ought to be aware that the current leadership of the National Prosecuting Authority is suffering from a serious case of ‘failure to launch’ when it comes to countering grand corruption of all kinds. The NDPP, Shamila Batohi, in her annual reports, her presentations to parliament and her public utterances is full of excuses as to why the NPA is unable to do its work of prosecuting the corrupt. The excuses are genuine. The NPA was hollowed out by Zuma. He planted legions of what Hermione Cronje, head of its new Investigative Directorate, calls “saboteurs” in the ranks of prosecutors to protect the interests of those involved in the capture of the state during the Zuma administration. There are not enough prosecutors available with the skill and experience necessary to mount a complex corruption case successfully. The NPA is under-endowed with equipment and resources necessary for such an exercise. It lacks Artificial Intelligence equipment and forensic investigative accounting capacity.

Zapiro Batohi NPA
Step One. More of Zapiro’s magic available at www.zapiro.com.

An understaffed, under-skilled and ill-equipped NPA is hardly likely to win the war on corruption, whether Covid-19 related or otherwise.

Yet, as the president well knows, it is only the NPA which currently has the constitutional power to prosecute the corrupt “without fear, favour or prejudice” to quote the words of section 179(4) of the Constitution.

The Hub the president has established is only as strong as its weakest link. The weakness of the NPA is a matter of public record, not from what its detractors may say, but from the words and reports of its own leadership. The success of prosecutions against the corrupt is dependent upon the ability of the NPA to mount a skilful and properly resourced prosecution. It has yet to do so on Batohi’s watch and, according to her own prognostications, it is unlikely to do so any time soon.

In these circumstances the new Hub will go the “dwaalspoor” way of the equally unsuccessful “Anti-Corruption Task Team” of the Zuma era. The eminently forgettable performances of Berning Ntlemeza and Nomgcobo Jiba reporting to parliament on its behalf still jar as reminders of the extent of state capture.

If the president is not merely mouthing platitudes on television, he ought to give his most serious attention to a question he was asked in parliament last year in March by the Chief Whip of the IFP. The question was directed at promoting the notion of the establishment of a new Chapter Nine Institution, the Integrity Commission, with a mandate to investigate and prosecute grand corruption in all its manifestations. This idea addresses the current dysfunction in both the Hawks (whom the president appears to have written off as a bad experience) and the NPA, with its saboteurs and lack of suitable capacity.

Initially the president appeared to favour the idea, one which he called “refreshing” (even though it has been around since 2012) and he undertook to mull over it.

A follow up question elicited a response in June 2020 (post pandemic) that it was not then necessary to establish such a body. The Covid-19 related corruption had apparently not yet crossed the presidential radar when this answer was given by him.

Narend Singh of the IFP records, also in July 2020, his lack of progress on the question he asked as follows:

“On 18 June 2020, in reply to a supplementary oral question posed by the IFP, the President held that there were sufficient law enforcement agencies to deal with corruption, and that institutions such as the Auditor-General would be taking additional measures including proactive auditing. The State is further apparently looking at means to strengthen investigations and mechanisms in the criminal justice system, especially to recover “ill-gotten proceeds”. The President concluded that the establishment of a ‘new independent Chapter 9 institution to focus on grand corruption may not be necessary at this stage’”.

It was Albert Einstein who created the pithy phrase:

“Insanity is doing the same thing over and over again and expecting different results.”

The “Hub” announced by the president on 23 July is just another Anti-Corruption Task Team with its focus on the Covid-19 related corruption. It is a body that is unconstitutional, given the decisions of the Constitutional Court in the Glenister litigation. It is not equipped to succeed, on the contrary, it is doomed to fail.

The president himself has no confidence in the ability of the Hawks to investigate grand corruption. Why else would he have proclaimed and established the Investigative Directorate of the NPA, led by Hermione Cronje, to investigate the corruption at the heart of state capture? In so doing he overlooked, or perhaps ignored, the single agency requirement of the courts. He also flouted the legislation passed by Parliament which reserves the work of investigating corruption (and other “priority crimes”) to the Hawks. The closure of the Scorpions hollowed out the investigative capacity of the NPA as regards corruption completely. The Hawks have not lived up to their legislated mandate insofar as corruption busting is concerned.

This failure is hardly surprising as the inwardness of their creation was to enable the Zuma era state capture project by nobbling the super-efficient Scorpions who were making life uncomfortable for too many ANC big wigs involved in patronage, cronyism and tender manipulation. The Hawks were meant to be independent of executive interference and influence, specialised, well-trained, properly resourced and secure in their tenure of office. They in fact meet none of the above binding criteria.

These facts speak to the ongoing failure of government to implement the binding decisions in the Glenister litigation properly.

Either the president is prepared, perhaps even obliged by the balance of factional forces within the ANC, to turn a blind eye to the corruption within his own party, or he is in honour bound, by his oath of office and the exigencies of the situation now facing the limping criminal justice administration, to take up the suggestion by the IFP and establish the Integrity Commission. His new “Hub” won’t cut it: not legally, not constitutionally, not structurally and certainly not operationally.

Like the Hawks, the current “hollowed out” NPA lacks the will and the skill to do its anti-corruption work, whether on the investigative or prosecutorial front.

At the invitation of the NDPP, Accountability Now recently submitted a complaint of corruption against the minister of police, Bheki Cele, for his involvement in the negotiation of police headquarters leases, at outrageously inflated rentals, in Pretoria and Durban in the run up to the 2010 soccer world cup. The report of the Moloi Board of Inquiry (which found Cele dishonest and incompetent) was made available to the NPA. Despite follow up correspondence, not so much as the courtesy of an acknowledgement of receipt has been forthcoming from the NPA. Yet it is the NPA that is the most critical component of the Hub, unless of course, the Hub is just more window dressing designed to disguise the fact that the ANC government is actually a criminal enterprise bent on the destruction of the country, its constitutional order and the economy, or what is left of it post lockdown. Some may regard the ANC’s nomination of Jacob Zuma to deliver the eulogy to struggle stalwart of remarkable honesty and integrity, the late Andrew Mlangeni, as evidence of factions hostile to the president cocking a snook at his Hub idea.

If the world’s top civil servant’s exhortation to exact accountability, if the IFP’s parliamentary questions, if the plan of Coleman, if the pivot of Abel and the wishes of Harris go unheard by the Ramaphosa administration, then it is time to resort once more to public interest litigation aimed at getting the government to do what the law requires of it in relation to countering the corrupt. Hugh Glenister has already been to the Constitutional Court three times on this topic, a fourth visit, not necessarily by him, beckons.

  • Paul Hoffman SC is a director of Accountability Now.
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