By Paul Hoffman
04 Sep 2022
Paul Hoffman SC is a director of Accountability Now.
The Nacac councillors will surely appreciate that they are bound to advise within the parameters of the law, not according to the illegal desires and practices of the ANC.
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A memo to President Cyril Ramapahosa
Mr President, your late August 2022 announcement of the appointment of a team of nine councillors to your new National Anti-Corruption Advisory Council (Nacac) comes just over 18 months after it was heralded in your February 2021 State of the Nation Address (Sona). Those with good memories will recall you dramatically diverting from the prepared text to emphasise that the intention was to create a new anti-corruption statutory body that reports to Parliament: “Not to the executive!” mark you.
Of course, you know that a mere statutory body would be no better off than the Scorpions were regarding secure tenure of office. However, a reporting line to Parliament would certainly be an improved way of taming executive meddling, interference, influence and control of those countering the corrupt.
This step in the right direction in the quest for the entity’s independence, long required by the Constitutional Court, appears to have been lost in the wash on the long-delayed way to appointing the Nacac councillors. There appears to be no mention of it in their mandate.
The reasons for your appointing the councillors for a term of three years are obscure. It is hoped you are not kicking the can down the road in pursuit of political expediency. You are surely aware of the urgency of our national situation: grey-listing, economic stagnation, poverty to the point of starvation and excessive joblessness are all exacerbated by serious corruption with impunity.
You have described the ANC, which you lead, as “accused number one” in the investigatory work of the Zondo Commission. That commission did not disappoint law-abiding citizens. Its report is now in the public domain and it confirms the perfidy of your political party and many of its leaders.
A Nacac term of office of three months would seem to be better suited to the conditions on the ground in South Africa, where “Covidpreneurism” cost you a Cabinet minister (Dr Zweli Mkize) as it seamlessly replaced the “tenderpreneurism” that characterised the long-running State Capture project.
Many current and former Cabinet members have been fingered by Chief Justice Zondo. He has called for an “army of prosecutors” to attend to his recommendations. That army does not exist. It is urgently needed. Loot is being dissipated and this will continue until it is the subject of freezing orders and seizure.
The “army” cannot be recruited by the existing system, which is gutted, hollowed out, riddled with saboteurs and alarmingly dysfunctional. Few self-respecting corruption-busters with the necessary skills and experience are willing to work for the National Prosecuting Authority (NPA) or the Hawks. They remember the fate of the Scorpions too well and are understandably averse to suffering the same fate themselves. These self-evident facts are what prompted you to speak as you did on the topic during your Sona in February 2021.
In your evidence to the Zondo Commission, you carefully explained on oath the notion of “democratic centralism” which guides the ANC. You stoutly defended its cadre deployment practices. As a lawyer, you surely appreciate that there is no mention of your “democratic centralism” in the Constitution.
Rule of law
The ANC is, of course, entitled to run itself along the lines of “democratic centralism”, but it cannot run the country in that way because our highest law demands multiparty democracy under the rule of law (not of Luthuli House), Mr President!
We have a country of laws in which the supremacy of the Constitution and the rule of law are explicitly spelt out as foundational in Chapter One of the Constitution. The notions of the separation of powers, checks and balances on the exercise of power and the independence of the judiciary and Chapter 9 institutions cannot be accommodated when governance is informed, as you have conceded it is, by “democratic centralism”.
Even the semi-independence of the NPA is anathema to “democratic centralism”. The Nacac councillors you have appointed will all know these things if they have the necessary expertise to advise well in the anti-corruption field.
Then there is the matter of cadre deployment. You defended this pernicious practice while under oath at the Zondo hearings and you persist, despite its recommendation (backed by judicial precedent of which you are well aware) that cadre deployment be regarded as illegal and unconstitutional. Cadre deployment has been called out as the cause of State Capture as long ago as 2017.
While you were giving evidence it was called out again. These calls are not new. Your continued advocacy of cadre deployment flies in the face of the recommendations of the Zondo Commission which are backed by judicial authority that binds the government to nix cadre deployment. You need to rethink your position please, Mr President.
The Nacac councillors will surely appreciate that they are bound to advise within the parameters of the law, not according to the illegal desires and practices of the ANC. It is mind-boggling that you should need a council and advice on the core issues in these matters when you already have the benefit of the well-reasoned findings of the Chief Justice in the State Capture inquiry, give or take an unfortunately uncorrected error on the status of the seminal Moseneke/Cameron judgment in the case known as Glenister 2.
Mr President, you know that your administration is bound by the findings of the Constitutional Court in the Glenister cases. You do not need Nacac to tell you so.
Those findings, which set the binding criteria by which to measure the efficacy and effectiveness of adequately independent anti-corruption machinery of state, need to be implemented, but have not been for years. This omission persisted, for obvious reasons on Jacob Zuma’s watch, but for less obvious reasons on yours, unless you are simply paying lip service to the anti-corruption posturing of your administration.
In short: the highest court in the land requires “the reasonable decision of a reasonable decision-maker in the circumstances”. The current circumstances are graphically set out in the Zondo report. Parliament, which has a constitutional obligation to exercise oversight over the implementation of all legislation, has been ordered by the court to adhere to the criteria set by it.
Specialised, trained and independent experts who are properly resourced and enjoy secure tenure of office are required by law. They are not just a “nice to have”. They are clearly not in place, hence the perceived need to appoint Nacac. Public money would be better spent by concentrating on what the law requires and putting it in place.
This task is the work of Parliament, and Parliament is doing its work. You may not know that the Constitutional Review Committee of the National Assembly has unanimously decided to receive a comprehensive presentation by Accountability Now on the theme of compliance with the court directives via the introduction of a Chapter 9 Integrity Commission as a best practice means of achieving the necessary legal compliance.
It is suggested that this goal is best achieved by putting in place an entity able to prevent, combat, investigate and prosecute serious corruption. There is no such body at present and it has not existed since the dissolution of the Scorpions. The written part of the submission to Parliament is available to all and was sent to you, Mr President, on 31 August 2022 after the relevant draft on suggested legislation was sent to you a year earlier in August 2021.
Mr President, there may be members of Nacac who are beguiled by the multi-agency approach, the fusion centres and Anti-Corruption Task Teams so beloved of the Zuma era. The single-agency approach happens to be the binding law of the land. There is no need to debate this aspect. In 2014 the then Chief Justice, writing for the majority of the court, in terms that bind your government, held:
“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 the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
No amount of legal wriggling can turn those words into an endorsement of the failed multi-agency approach. There is no need for a debate or a discussion in Nacac, there is a crying and urgent need to create the entity of which the former Chief Justice so eloquently writes.
The NEC of the ANC, back in August 2020 instructed your Cabinet to do just that. The instruction has been ignored. The DA embraced the approach of Accountability Now in 2022. The IFP has been calling on you to effect the necessary reform since question time in Parliament in March 2019.
You found the notion “refreshing” at the time and undertook to mull it over, but now your minister of justice announces that it is not under consideration by Cabinet. Why not? The necessary political will is present in Parliament and in the NEC of the ANC, but apparently lacking in the executive you lead, Mr President.
Plight of whistle-blowers
Then, Mr President, there is the sorry lot of whistle-blowers in SA, a topic on which anti-corruption advice and action are urgently needed. Nacac may swiftly take pity on the plight of whistle-blowers as explained in Attachment A to the submission to Parliament which has been given to the chair of Nacac.
It may advise you immediately after it first meets to create an Ombudsman for Whistle-Blowers as informally as you have created Nacac, but more swiftly, along the lines used in Schleswig-Holstein. In SA, judges no longer in active service are an under-utilised highly skilled resource, part of the national treasure of the land.
One could be appointed to lead the Ombudsman office and other judges could be stationed at the seat of each high court so that they are accessible to whistle-blowers who desire anonymity and protection in the gap that exists between pointing out malfeasance and becoming eligible for protection under the existing law. Such a step, achievable this year, would be a useful stop-gap measure and may graduate into a permanent institution to which those who currently fear (with good reason) the downside of whistle-blowing can turn for advice, assistance and preservation of their anonymity.
Whistle-blowers’ information is the lifeblood of anti-corruption work; if they become discouraged by the huge downside of reporting wrongdoing and stop their whistle-blowing, the impunity of the corrupt in our midst will continue unabated. The urgency of helping whistle-blowers cannot be stressed too highly.
Mr President, your Nacac councillors will do well to study recent developments internationally in relation to the introduction of non-trial resolutions of corruption matters. This topic is dealt with in the submission to Parliament to which reference is made in Attachment B. It requires much research and careful consideration and can usefully form the subject matter of new legislation in due course.
It is not as urgent as achieving compliance with the law as laid down in the Glenister cases or introducing the Ombudsman for Whistle-Blowers, but it is a topic to which Nacac could usefully give attention as it has the potential to unlock a great deal of public money which is currently loot, but could become reparations for the ravages of State Capture.
The work of Nacac on creating a society in which commitment to constitutional values and the implementation of the Bill of Rights is the order of the day has great potential value. It will involve giving the best possible advice on:
- Inculcating integrity and probity in the general population;
- The abandonment of the features of the National Democratic Revolution that are inconsistent with the Constitution;
- The cessation of cadre deployment in the public service and SOEs and education on ethics and integrity in public life;
- The adoption ofa pledge by those who serve the state (not the ANC) along the lines of that suggested by Accountability Now;
- Promoting theIntegrity Pledge; and
- Refining theBill of Responsibilities.
Before Nacac turns to these longer-term tasks, its advice on alleviating the lot of whistle-blowers and achieving compliance with the law as laid down in the Glenister cases needs to be given in a matter of weeks or months, not years.
In order to expedite the necessary processes, Accountability Now is raising funds to prepare a case that will involve revisiting the Constitutional Court to request its assistance in achieving compliance with the decisions and orders already made by it, but sadly not complied with by your government, Mr President.
All South Africans deserve to live in peace that is secure, to enjoy progress that is sustainable and to strive for prosperity that is shared. These worthy objectives of our post-1994 constitutional order are unattainable while serious corruption with impunity continues and is left unattended by the government.
The ANC remains accused number one. DM