Paul Hoffman says security of tenure critical for any future state anti-corruption agency.
An unusually high, and somewhat early, equinox tide of critical commentary concerning corruption is washing over the eyes and ears of active citizens who partake of the media in SA. This is the week of the High Court battle over the procedural effects of the State of Capture report of the Public Protector and the hearing of the appeal petition in Bloemfontein concerning the reinstatement of 783 charges of corruption against President Jacob Zuma.
The editors of Politicsweb, in its edition of 12 September, have drawn together in one place a variety of perspectives on corruption that bears analysis if any good is to come from commenting on the corrupt. Here is the take home message on corruption of each scribe in the order in which they are published:
Douglas Gibson: “SAA: Turning something into nothing” rails against looting and corruption by politicians and officials at national, provincial and local level. He suggests the closure or privatisation or partial privatisation of every SOE that fails to earn its keep, even SAA, which he acknowledges may cost a couple of billion to dispose of to Comair or Emirates. His “work around” suggestions offer no solution to the causes of the problems of corruption and illegal cadre deployment in the public administration (indeed he overlooks the illegality of the latter), instead, he cites merciless Chinese solutions: jail people implicated in corruption or shoot them. He at least implicitly acknowledges that corruption suspects are entitled to due process in our constitutional democracy, but he makes no reference to the capture of the Hawks and inefficiency of the NPA, which have paralysed the combating of corruption.
Blade Nzimande: “A fish,captured by parasites, rotting from the head down” bewails the deleterious effects corruption is having on his national democratic revolution. He sees “working class hegemony” as the answer.
Elvis Ramosebudi (alleged coup plotting state capturer): “We have to uphold the rule of law, there is not much I can say but just await the outcome” His case was postponed for a week.
COSATU: “Strike to be held against corruption and state capture” The strike involves mobilizing against the predatory elite and “pushing for processes that will ultimately dismantle their network”. Investigations and charges for all involved as well as the appointment of a commission of inquiry into state capture as required by the Public Protector.
James Selfe: “State Capture and Zuma spy tapes in spotlight this week” The DA will ask the Pretoria High Court to find that the President is in breach of his constitutional duties by ignoring the remedial action required by the Public Protector. It will also oppose the petition in the spy tapes case.
Joe McGluwa: “DA wants audit on all ‘special’ and ‘emergency’ projects” –this audit applies to all projects in the North West Province that have been awarded without tenders. The purpose of the audit is to bring those involved in looting of state coffers to justice. How this is to be done without a functioning criminal justice administration is not alluded to by Mr McGluwa.
The trouble with these comments summarised from the columns of politicsweb is that insufficient attention is paid to the work of the courts in relation to the combating of corruption. Our Chief Justice has remarked that it is the work of the African courts to eradicate corruption in Africa. He said this in the context of an observation that poverty is pervasive in Africa because resources are diverted by the corrupt thus thwarting the efforts to alleviate poverty.
Courts do not adjudicate in a vacuum. Nor do they seek out cases. In our legal system it is for the police and the prosecutors to investigate and charge the corrupt along with all other criminals against whom complaints are laid whether by the public or otherwise. State capture is a crime which takes the form of corruption on a grand scale.
Corruption flourishes when the criminal justice administration is weak and disorganised. When it is structured and operates in a manner that is dysfunctional there is little hope that constitutionally compliant criminal justice administration can take place. In SA there was once an organisation, the Scorpions, that was structured to be independent of political influence and interference. The Scorpions were able for a short while to operate effectively and efficiently in the realms of combating corruption.
A highly specialised hand-picked staff that was trained by the experts at Scotland Yard and in the FBI was employed by the Scorpions management. As a unit within the National Prosecuting Authority, the Scorpions were endowed with sufficient resources both human and material to bring to book the parliamentarians involved in the travelgate scandal, Schabir Shaik, who was found guilty of corrupting then private citizen Jacob Zuma and Tony Yengeni, for defrauding parliament. Perhaps their greatest triumph was the successful prosecution of the Head of Interpol and National Commissioner of Police, Jackie Selebi, on charges of corruption.
The one attribute that the Scorpions did not enjoy was security of tenure of office. They were mere creatures of an ordinary statute and accordingly could be disbanded at the will of a simple majority in parliament. This flaw in their make-up caused their demise when the newly elected Zuma administration summarily and urgently dissolved them because they were taking too much professional interest in the doings of senior politicians and those in their circles of friends: the predatory elite.
In the litigation impugning the dissolution of the Scorpions the Constitutional Court laid down that security of tenure of office is a requirement for adequately independent and effective anti-corruption machinery of state. The initial version of the Hawks was found not to enjoy this status. In later litigation the revised Hawks were also found wanting and adjustments were made in an effort to bolster their security of tenure. As Anwa Dramat and Berning Ntlemeza can confirm, in their capacities as the first two heads of the Hawks, these adjustments have not worked.
What is needed in the fight against corruption in anti-corruption machinery of state that is like the Scorpions were, but with proper security of tenure of office. It would go a long way towards curing the dysfunction in the criminal justice administration if a unit that is not at the mercy of a simple majority of parliamentarians were to be established. This step is best taken by creating a new Chapter Nine Institution, an Integrity Commission, to prevent, combat, investigate and prosecute all instances of serious corruption that are reported to it whether by the public or by the Public Protector.
If such an entity existed now, there would be no need to have a judicial commission of inquiry into state capture. The matter would be under investigation, the #Guptaleaks would be verified and analysed. This task would be completed with a sense of urgency rather than the reluctance currently apparent. The best brains available would be applied to tackling the phenomenon with a view to saving the state from capture.
None of the current crop of commentators show any sign of having heard or read the Chief Justice when he held that:
“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 South Africa 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 best practice means of achieving compliance with what the Chief Justice requires is the establishment of the Integrity Commission under Chapter Nine of the Constitution. This will not happen until the political will to do so is generated. The commentators would do well to bear this in mind as they prepare their next broadside against the corrupt in our midst. The one quoted above who makes the most sense at present is the alleged coup plotter. It seems he appreciates the binding nature of the findings of the Constitutional Court.
Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt.”
Article published in Politicsweb on 13 September 2017