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Getting real about countering corruption at long last.

*An earlier, shorter version of this analysis was published by DM on 11 January 2021.*

The “January eighth statement” by the leadership of the ANC is intended to inform, inspire and encourage those who remain faithful to the tripartite alliance, (the movement, the party and the trade union federation) that has governed at national level since 1994. It is a message to members, both current and prospective, and an announcement to the world regarding the trajectory of the priorities identified for the year ahead.

Unsurprisingly and predictably the need urgently to prevent the further spread of the pandemic, to repair SA’s broken economy and to cement the country’s place in a better continent and world have been singled out for mention this year. All well and good. However, if the president’s words on corruption are not taken seriously then all of these goals will not be achieved and the slide toward failure as a “movement” and as an alliance. The spectre of SA failing as a state will continue to scare off potential new investment so necessary to revive the economy in the post pandemic world. He said:

“It is only if we stand united against corruption that we can restore the integrity of our movement.”

Quite correctly so, he pointed out that the unity of the ANC “cannot be used to shield those involved in wrongdoing from being held accountable.”

Mark Cutifani, CEO of Anglo American, has pointed out that corruption must be tackled as a priority to encourage investor sentiment toward SA. The spectre of crooked covidpreneurism hangs over the roll out of vaccines in much the same way as the urgent procurement of PPE was bedeviled by the circling vultures, the hungry hyenas and the jackals preying upon the public purse for illegal self-enrichment rather than efficient and

effective use of resources to put PPE in place without delay. Avoidable deaths occurred as a result of covidpreneurism; the death of the entire economy is inevitable if grand corruption in general is not successfully countered.

The “how to” of countering the corrupt is the sticking point in SA. So far, the unity between those who are corrupt or facing corruption charges in the ANC and those who are not has been abused as a pretext for allowing the corrupt to continue in office as members in good standing when in truth and in fact their unwillingness to submit themselves to precautionary suspensions or to stand down until their dark clouds have blown away has ruined the reputation and integrity of the ANC. It has also crippled all efforts to get to grips with corruption in society in general.

Corruption is a bilateral or multi-lateral secretive crime involving corruptors and corruptees. Those in the business sector who see corruption as an easy way of profiteering from the state’s spending of public money are in cahoots with those in government and state owned corporations who procure goods and services using the funds of the taxpayers.

Procurement is meant to be fair, equitable, competitive, cost effective and transparent. It is not meant to be a way to easy riches, a means of bolstering party-political funding and a vehicle for feathering the nests of the corrupt.

The ANC pays insufficient attention to the fact that our prosecution authorities first satisfy themselves that there is a prima facie case against the corrupt before they summons or arrest them. They know that it is difficult to prove corrupt activities beyond a reasonable doubt in a criminal trial. They are astute to get their ducks in a row before the charges of corruption reach the stage of pending criminal proceedings.

Instead of taking the views of the state seriously, the ANC members who are alleged to be involved in corruption prefer to fall back on the right of accused persons to be regarded, in court mark you, as innocent until proved guilty. This attitude misses the point that the ANC cannot be seen to be populated by a coterie of personnel facing serious criminal charges and simultaneously maintain its integrity and reputation as an upstanding body of respecters of the rule of law and champions of constitutionalism.

After all, serving the people does not include stealing from them.

All public representatives swear or affirm that they will obey, observe, uphold and maintain the Constitution and the law when they take office. This solemn undertaking rings hollow in the mouths of those facing serious charges who cling to office. Yet the ANC leadership, which includes more than a few of such persons, inexplicably allows those under a cloud of suspicion to continue in office despite the damage this laxity does to the integrity and reputation of the ANC itself.

SA once had effective corruption-busters. They were called the Scorpions and were an independent unit within the National Prosecuting Authority. They investigated ANC bigwigs without fear, favour or prejudice – exactly as required by the Constitution. They were closed down by the ANC for doing so, despite every effort by the opposition and most of civil society to prevent the closure of the Scorpions. They were ignominiously replaced by the Hawks, a mere police unit, lacking any of the qualities expected by law to be attributes of effective and efficient corruption-busters. This was allowed to happen because the Scorpions did not enjoy the protected status

of Chapter Nine Institutions which cannot be closed down at the whim of a simple majority in parliament.

It is now plain from the evidence emerging at the State Capture Commission that the axing of the Scorpions was effected to facilitate the state capture project of the Zuma era and to protect Zuma himself against the prosecution he is now facing. That he should also be prosecuted for decapitating the NPA and for his contempt of the State Capture Commission is as plain as a pikestaff. He has yet to account for his considerable role in state capture, preferring to protest his innocence in the face of a mountain of evidence from more than thirty witnesses at the commission. Surprisingly, he remains a member of the ANC in good standing and attends meetings of its National Executive Committee, of which he is an ex officio member. This remarkable state of affairs does the ANC incalculable harm.

Creating the political will, within the organisation responsible for disbanding the Scorpions, to get serious about countering corruption is not as difficult as it may seem to be. There is widespread acknowledgement that it was wrong to close down the Scorpions so summarily. It is known that their Achilles heel was their lack of security of tenure of office. It is not beyond the wit of parliament to fashion a constitutionally compliant anti-corruption body that has all of the attributes that the courts require of it, including secure tenure of office free from outside influence, interference and control.

Opposition parties have a role to play in this exercise. The state is bound by the rulings in the Glenister litigation that specify in detail the qualities of corruption busters. A private members bill aimed at creating super-Scorpions who have secure tenure of office ought to sufficiently embarrass the stragglers in the ANC to support a legislative programme that takes the

investigation and prosecution of grand corruption away from the Hawks and NPA and gives it to the new body. Draft legislation and a suggested constitutional amendment have been prepared by Accountability Now and have been presented to the Constitutional Review Committee of the National Assembly, years ago.

The paralysed and compromised current status of the existing officials in the criminal justice adminstration can be more rapidly cured through bypassing them in this way than by throwing money at broken institutions infested with “saboteurs” who have been put in place to protect those involved in the capture of the state.

It will be necessary to define “grand corruption”, a task that has not yet been tackled in international law. The anti-corruption work, insofar as grand corruption is concerned, will have to be carved out of the mandates of the Hawks and NPA and given to the new body, which should be housed in Chapter Nine of the Constitution so that it does not face the same fate as the Scorpions, who were a mere creature of an ordinary statute and therefore easily dismissed by a simple majority.

The launching of private members bills will make the countering of corruption the election issue it ought to be.

The ANC can pre-empt opposition efforts by doing what its National Executive Committee asked the national cabinet to do as long ago as 4 August 2020: urgently establish just such a body to “deal with” corruption. Mystifyingly, nothing further has been heard in public of this resolution, possibly because those in leadership positions within the ANC who are corrupt (whether or not they are facing charges) do not wish the NEC resolution to be implemented whether urgently or at all. There was no mention of the NEC resolution in the January eighth

statement. The mamparas who resist the NEC’s resolution are signing the death warrant of the ANC as a majority party in SA by selfishly clinging to power and using their power to subvert the rule of law for as long as possible. The voters of SA should not and probably will not tolerate this attitude. The courts certainly won’t.

The president was elected, both at Nasrec and in the 2019 general election, on an anti-corruption ticket. If he does not deliver, he cannot expect continuing support from the voters, who, to quote his chosen cabinet member, Patricia de Lille, are “not stupid”.

Corruption is theft from the poor when it takes place in official supply management chains. The poor will not tolerate being stolen from once they work out that the theft is huge, ongoing and unaddressed. The poor, who have the vote and very little else in SA, can generate the political will to effect the changes that are required to put an end to corruption with impunity in SA. We have the talent, the experience and the potential to deal decisively with the corrupt among us. The political will to do so is in evidence in the January eighth statement. When its Secretary General is placed on precautionary suspension the world will know that the ANC is moving in the right direction. If he is not, the voters will know what to do about it.

As for the ANC’s place in Africa and the world – there is no better way to enhance it than to champion the idea of an International Anti-Corruption Court to deal with grand corruption, state capture and kleptocracy on the basis of the doctrine of complementarity, in a manner similar to the workings of the ICC. Skilful use of connections within the AU and a strong showing by SA at the June meeting of the General Assembly of the UN are required. At the special session on the

topic of corruption the UN is likely to debate the notion of such a court. When our government emerges as the African champion of countering the corrupt, the rehabilitation of the ANC as a force for good in the world will be possible. The principled, visionary and courageous leadership of the president can restore SA to its Mandela-esque stature of the previous century.

Paul Hoffman is a director of Accountability Now

9 January 2021

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