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Green shoots on the tree of constitutionalism

The question which may burn the green shoots of constitutionalism to cinders is whether the political will can be generated for the ANC to take the strong medicine of accountability for its institutional misdemeanours or “sins of incumbency” as they are sometimes called.

March was a good month for optimists in SA who have concerns about the effects of State Capture and corruption on the future trajectory of the country. The Zondo Commission into allegations of State Capture held a promising press conference; its regulations were sensibly amended and its chosen personnel all appear to be from the top drawer. The new-old minister of finance, Nhlanhla Nene, arriving without blue light convoy, reportedly told conference delegates on 5 March:

“The government will announce its strategy to fight corruption and State Capture within 100 days.”

According to a Beeld report, Nene told a Federations of Unions of SA conference the government would also announce plans to bring those responsible for corruption to justice.

“Almost all South African and foreign investors have lost confidence in SA. This situation must be turned around urgently,” he said.

Nene said the recent arrests show “even the Hawks’ are emboldened by the regime change”.

Not to be outdone, the NEC of the ANC produced a post-meeting press statement in which the following passage appears:

“The NEC recommitted itself to continue with the campaign to restore the integrity and dignity of the state and of the ANC as an organisation and further that the fight against all manifestations of corruption and state capture should be intensified.

“The NEC appreciates that, in the context of this campaign, some members and leaders of the movement may find themselves called to account by law-enforcement agencies, the legislatures and the Judicial Commission of Inquiry dealing with the matter of state of capture.

“The ANC wishes to reiterate its principled approach that persons so implicated should be presumed innocent until and unless proven otherwise.

“Individual members of the ANC and society have the right to express their sympathy and solidarity with the effected persons in their individual capacity, and not through any structures of the movement including the ANC Leagues and the MKMVA.

“Members involved in such actions are discouraged from displaying ANC’s paraphernalia and thus creating the false impression that the ANC as organisation identifies with, or approve of, the misdemeanours of which any member or leader may be accused.

“In welcoming the concerted efforts of the Executive led by the President, as well as the legislatures, to put the sad chapter of systemic corruption and state capture behind us, we wish to emphasise that cadres of the movement, wherever they may be deployed, should see it as their responsibility to cooperate with these efforts; and not to seek to obstruct legitimate actions to eliminate these scourges.

“The NEC has further directed the NWC to finalise terms of reference as well as setting up of the Integrity commission and to report to the next NEC meeting for finality.”

Parliament busied itself with the processing of new legislation regarding the public disclosure of political party funding, surely the original sin of the “systemic corruption” to which the NEC refers in its press statement.

Elections which are fair cannot be held in circumstances in which only one political party regards the state and the State-owned Enterprises as its “piggy bank” while the rest play the fundraising game without the considerable benefits of kickbacks, commissions, dividends and capital gains of the kind the arms deals and Hitachi Power Africa transactions brought to the ANC.

If the NEC is serious about restoring the lost dignity and integrity of the state, “and of the ANC as an organisation”, it is going to have to account to “our people” for its ill-gotten gains of this kind on an institutional basis.

Fortunately for the ANC, the bribes paid in the arms deals are all recoverable by the state from the arms dealers in full upon the invalidation or cancellation of those deals. Doing the right thing by ending the deals will be financially painless for the ANC and will swell the coffers of the state by an amount in excess of the funds to be raised by the increase in VAT.

An accounting for ANC investment vehicle Chancellor House’s role in the Hitachi Power Africa deal will be more costly for the ANC, but at least it will not have to pay US fines of the order already paid by Hitachi for getting into the deal in the first place. This is because, unlike Hitachi, the ANC does not do business in the USA.

Further encouragement for optimists is to be found in the Easter weekend pronouncements from the pulpit, not only by the Archbishop of Cape Town, Thabo Makgoba, but also by the President, Cyril Ramaphosa. The former said in his Easter message:

“President Ramaphosa and the ANC should see this time as a moment in history to embrace the principles and objectives of the New Struggle – a struggle to which we all should commit: a struggle for equality, a struggle about values and institutions rather than personalities, a struggle to build strong systems which cannot be undermined by one party or person’s whim.”

In similar vein, the president added:

“The ANC must serve the people of South Africa. We must put our old ways behind us. Where there was corruption, we must say goodbye to corruption.

“Where there were people who were stealing the resources of our country, they must be dealt with severely,” Ramaphosa said.

“The new dawn means things have to change. We are now going to work in a different way to change the lives of our people,” he said.

Ramaphosa said “the new dawn” must mean there was a “renewed enthusiasm” for service delivery.

What with the Cabinet, the clergy, the commission, the party and the politicians all singing off the same hymn sheet as the president, the green shoots of constitutionalism are seemingly healthy.

The Integrity Commission to which the ANC’s NEC refers in its press release quoted from above is not, unfortunately, the long-awaited Integrity Commission of the Chapter Nine Institution variety that Accountability Now has long championed.

It is actually a committee of the stalwarts of the ANC who have a mandate to ensure integrity in the actions of the ANC. The fact that it is getting a make-over is a good sign. And certainly, what is good enough for the ANC is also good enough for the country. It is on this front that the Constitutional Review Committee of the National Assembly is mulling submissions which recommend the Chapter Nine Integrity Commission which will be tasked with preventing, combating, investigating and prosecuting corruption on a nationwide scale in both the public and private sectors.

This institution is the most cost-effective and efficient means of dealing with the many and varied problems in the criminal justice administration, recently highlighted in Parliament by IPID boss Robert McBride. He identifies senior police management as the greatest threat to the security of the state. The failure of the prosecuting authority to deal with State Capture and corruption appropriately during the Zuma years is a strong indicator of the need for change of an institutional kind, as suggested by the Archbishop.

Indeed, the UN Sustainable Development Goals, to which SA subscribes, include in their number a particularly important goal, namely the 16th, headed Peace Justice and Strong Institutions. In the words of the UN this SDG is:

“… dedicated to the promotion of peaceful and inclusive societies for sustainable development, the provision of access to justice for all, and building effective, accountable institutions at all levels.”

The police and prosecution services have not proved to be strong enough to withstand the ravages of State Capture and the damage done to them by their own capture is going to take many years to repair, if that is possible at all. In these circumstances the establishment of a new and strong institution is indicated.

The question which may burn the green shoots of constitutionalism to cinders is whether the political will can be generated for the ANC to take the strong medicine of accountability for its institutional misdemeanours or “sins of incumbency” as they are sometimes called.

The long-term sustainability of the ANC as a popular political party requires that the ANC takes stock and deals with its corruption-infested patronage networks, especially the deployment of its cadres in the public administration and State-owned Enterprises, a practice which is both illegal and unconstitutional.

The ANC is also going to have to come to terms with correcting its fundraising methodologies which either create conflict of interest situations or blur the line between party and state. Should it fail to do so, its popularity at the polls will wane and its grip on power will be lost: you can’t fool all the people all the time in politics.

If the ANC is unable to find it within itself to establish strong institutions of the kind the UN and the Archbishop have in mind, the voters of SA have the opportunity to punish it at the polls for not shaking off the nightmarish Zuma years. It is certain, quite properly so, that the issues around corruption and State Capture will be at the forefront of the election campaign that will precede elections due at the latest in mid-2019.

Will the “Ramaphoria” new dawn turn into a fuzzy haze, or will the sunlight of accountability for corruption and State Capture break through the darkness in which we have dwelt too long? Will that sunlight nurture the green shoots of constitutionalism we can, perhaps optimistically divine, in the various developments sketched above? Time will tell.

Any voters anywhere in the free world who vote for a party which is soft on corruption and amenable to facilitating State Capture (as the ANC admits it has been) have only themselves to blame when they get the government they supported at election time. The dignity and integrity of the state is at stake. Even the ANC says so. DM 2

Paul Hoffman SC is a director of Accountability Now

* The tree of constitutionalism is the logo of the Constitutional Court

Article published in the Daily Maverick on 2 April 2018.

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