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Bright lights are shining on the virus of corruption – now for action

Opinionista • Paul Hoffman • 25 August 2020

The battle against corruption has been given major impetus by President Cyril Ramaphosa’s ‘Dear Comrades’ letter, and by an earlier ANC NEC resolution to call on the government to establish a ‘multi-disciplinary agency’ to deal with white-collar crime. Action must follow.

Sello Lediga of the Patriotic Movement, a civil society organisation that promotes patriotism in SA, has called on civil society to mobilise against the small clique of politically connected tenderpreneurs and crooks who are greedily thwarting the efforts to counter the Covid-19 pandemic and debasing the once-proud traditions of the ANC. He maintains, correctly so, that SA is experiencing the kind of corruption no one would have thought possible under the leadership of the father of our Constitution.

His eloquent opinion piece published on 21 August 2020 contains a heartfelt call to action that omits two significant developments that may possibly alter the trajectory of his call in a penetrating and radical way.

First: there is an important resolution of the National Executive Committee of the governing ANC and, second, after Lediga wrote, there is the “Dear Comrade” letter of 23 August from the presidential desk. The two may find the Patriotic Movement and the phalanx of civil society organisations assembled by the Ahmed Kathrada Foundation, to protest endemic corruption, pushing against an open door.

According to a media release issued by the NEC on Tuesday 4 August as reported in the press:

“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,” said Magashule.

He said the NEC fully supported its president, who is also South Africa’s head of state, Cyril Ramaphosa’s decision to refer all allegations linked to the procurement of Covid-19 goods and services to the Special Investigative Unit (SIU).”

This resolution, coming as it does from the highest decision-making body of the ANC between conferences, is one that ought to be given all due weight; it ought not to be ignored by civil society a mere three weeks after its publication.

Almost miraculously, on the face of it, the ANC leadership has now reached the same page as the Constitutional Court in the Glenister litigation when it comes to dealing with the spectre of endemic corruption.

The NEC has taken the lead evidenced in the approach of the courts to dealing with corruption with impunity. It has endorsed the “single entity” approach, thereby putting an end to the Zuma era multi-agency experiments designed more to pass the buck between agencies than to bring the corrupt to book. The anti-corruption “Hub” and the new “Fusion Centre” of the current administration will also become history once the NEC resolution is processed by ANC deployees in Cabinet and in Parliament.

It would be foolhardy for civil society to ignore the trenchant warnings given by the top judges in the land in the litigation that birthed the single-entity approach. Corruption has the potential to destroy the hard-won freedom of the people of SA. Mr Lediga is right that it is time for civil society to mobilise. There is a crying need for Light, Sound and Action as regards corruption. The urgent changes sought by the NEC ought to lead to government effecting the changes needed.

The “light” of transparency and accountability in the process of acquiring goods and services for the state has long been the law of the land. Sadly, for almost as long the law has been ignored by tender boards, politicians and tenderpreneurs. A system that is fair, equitable, transparent, competitive and cost-effective is required by the Constitution. There is no room for covidpreneurs in such a system, yet they flourish in the dark corners in which tenders are awarded. Public officials cannot possibly award tenders fairly, without bias, objectively, and accountably by doling them out to politically connected persons without following due process. That is downright dishonest, unethical and impermissible in law, irrespective of what Ace Magashule may think. The sanitising light of transparency and accountability is needed now.

 The “sound” of properly protected whistle-blowers ought to be heard more frequently in the land. At present blowing the whistle on corruption, always a secretive crime, is an extremely fraught and life-changing form of activity. It should not be, the law needs to be changed to afford greater and assured protection to whistle-blowers, without whom a great deal of corruption would go undetected. The President has missed this point in his letter to his comrades and should give it his anxious consideration.

The “action” item is the most pressing. It is clear, indeed, it is conceded by the National Director of Public Prosecutions that the existing anti-corruption machinery of state is not fit for purpose and will not become so for many years due to the “hollowing out” effect on it of the State Capture project of the Zuma years.

Civil society needs to take the resolution of the NEC of the ANC quoted above most seriously. The means of urgently converting it into law, policy and action must be explored and acted on as soon as possible. The necessary amendments to the law to reverse the gains of the State Capture project and to put in place the single anti-corruption entity required by the courts and now by the NEC ought to be a focus of the campaign to which the Patriotic Movement refers.

At present, it is not.

The “Dear Comrade” letter from the President is the clincher. It evidences his embrace of the resolution of the NEC quoted above and his impatience with dishonesty in the ranks of his party in all spheres from branch to committee, from the leagues to the deployees in government and the public administration, including SOEs.

The President has spurned political interference in the criminal justice administration, a most welcome development. His seven-page letter to his comrades in the ANC contains two vital passages:

“The ANC should publicly disassociate itself from anyone, whether business donor, supporter or member accused of corruption or reported to be involved in corruption.”

Those interested in heeding the call to protest need to do so constructively and peacefully. While their outrage is fully justified and their anger is real, it is preferable to get even with the corrupt, not just wallow in fury.

Toward the end of the letter he insists that:

“We must strengthen and resource law enforcement and insulate it from political interference. The process of establishing an independent and multi-disciplinary agency to deal with cases of white-collar crime, organised crime and corruption must be fast-tracked.”

As the NEC of the ANC has already requested Cabinet to attend to the establishment of the agency concerned as a matter of urgency, it is clear that, as leader of the Cabinet, the President is alert to the wishes of the highest decision-making body within the ANC between conferences of the ANC. To have the President and the NEC pulling in the same direction on countering the corrupt is a blessing for all, except the corrupt.

Last year Accountability Now offered to “thuma mina” on the legal reform front and, in the light of recent developments, the offer was renewed last week, before the momentous announcement by the President.

Accountability Now has long advocated the reform now embraced by the NEC and the President. It is contended that the best-practice means of doing so is the establishment of a new Chapter Nine institution that is given a constitutional mandate to investigate and prosecute the corrupt among us.

Those interested in heeding the call to protest need to do so constructively and peacefully. While their outrage is fully justified and their anger is real, it is preferable to get even with the corrupt, not just wallow in fury. At the very least take the NEC seriously, it is a most powerful body. Every active citizen should engage in finding the best lawful way to make the implementation of the NEC’s resolution the lived reality of the corruption-weary population of SA.

If, as some cynical observers have suggested, the NEC is bluffing to buy political time, call its bluff by taking the resolution at face value and demanding that it be followed by action in Cabinet, legislation in Parliament and long-overdue reform in the criminal justice administration. If the President has only presented a “word salad”, as argued by DA interim leader John Steenhuisen, civil society can get him to eat his salad.

Constructive and well-focused demands achieve more than strident noise from justifiably dissatisfied citizens who have had enough of the scourge of corruption. On this occasion, it is suggested that the demand should be to implement the outcome of the Glenister litigation properly.

All identifiable ANC members with criminal or disciplinary records involving dishonesty will have to have their membership of the ANC terminated. Many are named and shamed in the recently published books of investigative journalists, victims of ANC perfidy and academics.

Accountability Now’s suggested best practice and constitutionally compliant solution to corruption with impunity is one that involves the establishment of a new Chapter Nine institution, insulated from executive interference and (unlike the Scorpions) secure in tenure of office. It is already on the table with the Constitutional Reform Committee of the National Assembly. Opposition support in principle is assured. Fast-tracking the legislation is eminently possible.

The first part of the presidential “shopping list” quoted above is more complex than the legislative reform required and may lead to much unhappy pushback from those comrades involved in corruption and dishonesty in the various ways alluded to by the President.

All four of the arms deals should be cancelled; the armaments (or what remains of them) should be returned to the European arms dealers who ended the innocence of the ANC, and all amounts paid should be refunded to the SA Treasury including interest and the increased payments due to the pain of fluctuations in the value of the rand. In most cases liquidated damages claims are also available to SA and should be enforced. As the returned arms will be on-sold in the Third World, it is possible to mediate win-win settlements with the arms dealers whose contracts are cancelled due to their invalidity. And there is no need to fear that the bribes paid will ever be refundable. They are not claimable in law.

There is already pending civil litigation brought by the Cape Town-based Peace Centre (formerly known as the Quaker Peace Centre) which could be used as a template for any other arms deals in which litigation to invalidate the deals is needed because mediation, after a demand properly made, does not have the desired effect.

The proceeds of the cancellation of the arms deals will be more than sufficient to properly resource and staff the new anti-corruption unit with the best available equipment and talent in the land.

All identifiable ANC members with criminal or disciplinary records involving dishonesty will have to have their membership of the ANC terminated. Many are named and shamed in the recently published books of investigative journalists, victims of ANC perfidy and academics. The #Guptaleaks and the Zondo Commission evidence are replete with references to comrades who have behaved corruptly, dishonestly and unethically.

By ending the culture of impunity abroad in the ranks of the ANC, the President’s wish to clean up the act of the ANC will be fulfilled. Those who resist must be met with the full might of the law.

Examples abound: Tony Yengeni, a convicted fraudster, will have to be removed from the NEC and have his ANC membership terminated. All of the Travelgate fraudsters, many of whom still languish in high places within the structures of the ANC, will have to suffer a similar fate. Those with “smallanyana skeletons” that reveal dishonesty must go. Faith Muthambi, Malusi Gigaba and Bathabile Dlamini are in this category.

Bheki Cele, found to be “incompetent and dishonest” by the Moloi Board and against whom corruption allegations made by the public protector are currently under investigation by the prosecution service is another. Cele’s NEC membership and tenure in the Cabinet must surely end if the President is to be taken as seriously as he should be taken. Fikile Mbalula, another Cabinet member, found by the public protector to have dishonestly financed a family holiday in Dubai, must go as must each and every ANC member fingered under oath in the proceedings of the Zondo Commission of Inquiry. Only if cogent countervailing evidence is produced can those fingered escape the disassociation sanction sought by the president.

ANC members currently on precautionary suspension or “on leave” due to being under a corruption cloud must be subjected to ANC disciplinary proceedings if they persist in protesting their innocence, and must be dealt with swiftly and fairly in accordance with the internal ANC disciplinary machinery available for use in cases such as theirs.

It is not for the ANC to usurp the functions of the criminal justice administration; maintenance of discipline is a sufficient basis for discarding and expelling rotten cadres whether or not they are guilty of crimes. Worthy cadres are not dishonest or unethical.

Deployed cadres involved in the Marikana and Life Esidimeni tragedies in dishonest ways must quit or be forced out of the new ANC. The same applies to the tenderpreneurs and covidpreneurs both in the private and the public sectors. Most procurement irregularities involve dishonesty. The President wants an end to these practices. Civil society can help him make it happen by blowing the whistle on the crooks.

By ending the culture of impunity abroad in the ranks of the ANC, the President’s wish to clean up the act of the ANC will be fulfilled. Those who resist must be met with the full might of the law.

The success or otherwise of the calls made by the President in his seminal letter will determine the future trajectory of the ANC (which may or may not split on the back of his demands) and of the country, which may or may not be saved from failure as a modern constitutional democracy under the rule of law. DM

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