Opinionista • Paul Hoffman • 13 September 2021
If President Cyril Ramaphosa is truly interested in the development of ‘concise messages’ that reassure the public that he is not at the head of a criminal enterprise that does not pay its staff or its taxes, he can do no better than dust off what the ANC’s NEC announced 13 months ago in relation to the urgent need for reform of the criminal justice administration.
President Cyril Ramaphosa has let it be known publicly that he does not like to get advice from anyone who is not a deployed cadre of the ANC. His attachment to cadreship shone through when he gave his evidence to the Zondo Commission.
The learned acting chief justice was virtually begged by the president not to make adverse findings about the use of cadre deployment by the ANC. Democratic centralism was carefully explained in a way that makes the murky workings of the cadre deployment committee meetings seem more sinister on analysis of what was said.
During the five years that Ramaphosa presided, his cadre deployment committee conveniently did not keep minutes of deliberations or even their recommendations. The resort to mere “recommendations” in place of democratically central binding instructions from the “centre of the top” came after the reversal of fortune in the Mlokoti case. That is the matter in which cadre deployment of a municipal manager was declared unconstitutional, illegal and invalid.
The “recommendations” are actually Luthuli House instructions which cannot be disregarded or disobeyed. They are made tongue in cheek and dressed up as mere recommendations to avoid the consequences of falling foul of the rule in Mlokoti. The public service processes for making appointments are in effect a sham; a pantomime performed to obviate the illegal consequences of cadre deployment and its legal invalidity. The “recommendation figleaf” is fooling nobody, least of all Justice Raymond Zondo.
The ANC is hunkering down in anticipation of adverse findings because, as the president himself has acknowledged, the ANC is “Accused Number One” in the corruption, State Capture and kleptocracy stakes in SA. The problems predate the Zuma era and, as can be seen from the more than 4,000 covidpreneurism cases, they continue during the Ramaphosa administration, unabated.
The causes of the rioting in KwaZulu-Natal and Gauteng may well be attributed eventually to the desire of the corrupt that their impunity continue indefinitely. Insurrection is disruptive of the rule of law and the smooth functioning of the criminal justice administration. Especially so when police either participate actively in the looting or stand idly by observing the looters’ irresponsible, destructive and criminally illegal acts.
At the most recent National Executive Committee (NEC) meeting or lekgotla of the ANC, the president made some remarks that are worth pondering in the context of the contention that the ANC is battening down the hatches in the expectation that a storm will strike it when the Zondo Commission report is made public next month. Here are the relevant extracts:
“The ANC and this government will be criticised in the main due to an exaggeration of the role of the Deployment Committee and misrepresentation of its ambit, as well as for the management of the work our MPs do in Parliament and parliamentary structures.
“Specific allegations have been levelled against leaders and deployees of the movement and there is a concerted drive to tie these allegations to the organisation and portray a picture of a corrupt and incompetent ANC and ANC government.
“We need to be ready to address these and develop concise messages before the report comes out.
“An important issue will be to engage with and preparing ourselves for implementation of the recommendations.
“Finally, there is a palpable feeling of anger towards and disillusionment with this government, which we must not underestimate. The people in this meeting bear the bulk of the responsibility for turning this around. It is our collective duty to address this.”
If the president is truly interested in the development of “concise messages” that reassure the public that he is not at the head of a criminal enterprise that does not pay its staff or its taxes, he can do no better than dust off what the NEC announced 13 months ago in relation to the urgent need for reform of the criminal justice administration, namely:
“The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice.”
In so resolving, the NEC showed a fine political appreciation of the enormity of the credibility challenges of the ANC and a preparedness to take the medicine necessary to address its waning popularity with the voters.
The concise statement quoted above is perfectly consistent with the findings of the Constitutional Court in the Glenister litigation, findings which are binding on government because it was a party to the litigation. With the customary disdain for the rule of law that Zuma displayed throughout his two terms in the presidency, the binding ramifications of the Glenister findings were ignored on his watch. Instead the Hawks were put in place to fail at all the good things that the Scorpions had been doing before they were cruelly and (with the benefit of hindsight) irrationally disbanded.
The proper implementation of the criteria set in concrete in loud and clear terms in the second Glenister case can easily be achieved if the recipe proposed by the NEC is followed: a specialised, properly trained elite unit that pulls together all required skills, is structurally and operationally independent and (unlike the Scorpions) is fully resourced and secure in its tenure of office is what is needed to show the world, the Zondo Commission and the electorate that the ANC has not gone over to the dark side, is not held captive by the crooks in its ranks and is capable of self-correcting in a manner that could return it to its former status as darling of all freedom-loving people everywhere.
There is no need to await the recommendation of the commission: the need has been identified by ANC leaders and should be acted on promptly.
The task at hand has been made considerably simpler because Accountability Now, with one eye on constitutional compliance and the other on implementation of the NEC resolution summarised above for public consumption by ANC leadership, has done the hard yards by preparing two draft bills. These drafts are already on the desk of the President and before the Constitutional Review Committee in Parliament. The National Prosecuting Authority has noted their contents without demur.
If the concise response to the Zondo findings adverse to the ANC does not contain any reference to the resolution passed by its NEC in August 2020, a concise explanation for the abandonment of the resolution (thus far not publicly announced) is long overdue, as is an accounting for veering away from the position adopted in it. If the ANC was pulling the wool over the public’s eyes, its silence on these topics will speak volumes. If it thinks it has a better plan that is constitutionally compliant, it had better say what it is and why it is better.
The “statutory anti-corruption body” foreshadowed during the State of the Nation Address by the president last February is somewhat underwhelming. Here is what he said:
“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.”
While reporting to Parliament and bypassing the executive is constitutionally sound good practice, the notion of a mere statutory body is not. Establishing that would take us all back to where we were when the Scorpions were so easily closed down when they started to make life uncomfortable for the kleptocrats in the ANC. As a mere creature of statute, the Scorpions (and the envisaged new body) could be closed down by a simple majority in Parliament. That fate does not await the permanent body the NEC has in mind.
The way to secure permanence is to house the body in Chapter 9 of the Constitution, a chapter that can only be amended by a two-thirds majority in Parliament. The greater security of tenure of office will enable investigators and prosecutors to go after the “big fish” without having to look over their shoulders for reprisals from those powerful enough to stymie them.
Corruption is corrosive; it has exacerbated poverty by the sheer scale of the misappropriations involved. It reduces business confidence and scares off new investment. Inequality has risen in SA since liberation mainly because corruption has stifled new investment of the kind that creates jobs. There are more than 13 million jobs in the private sector and only about two million in our arguably bloated public sector. Joblessness is at an all-time high, particularly among the young, some of whom are so lacking in skills due to shortcomings of the education system that they are also unemployable without further training.
Free advice from senior counsel is seldom offered, even more seldom to a president who prefers advice from deployed cadres. Most free advice is worth what one pays for it. The free advice to create the political will so sorely needed now is:
- Revisit the NEC resolution of August 2020;
- Implement it in a constitutionally compliant way by meeting the criteria set in the Glenister litigation and meshing the two along the lines already suggested by Accountability Now;
- Discard the Advisory Council which was announced in February 2021 and has not yet seen the light of day;
- Debate the draft bills prepared by Accountability Now and refine them in the crucible of debate;
- Establish a Chapter Nine Integrity Commission urgently to prevent, combat, investigate and prosecute serious corruption and recover loot in civil and criminal proceedings;
- Close down the SIU and Investigating Directorate in the NPA so that the best staff they have can be recruited by the new entity after appropriate integrity testing;
- Ignore any of the above at your political peril and at the risk of plunging SA into failure as a state; and
- For once, put your country ahead of the movement you lead. It is the right thing to do. DM