SOME commentators have taken to likening President Jacob Zuma to Humpty Dumpty after his great fall. Their comments may have been elicited by a yolk joke Lindiwe Sisulu slipped into her recent diatribe on racism, or by some subliminal association related to the shape of the presidential cranium. Be that as it may, it does seem the chickens are coming home to roost on Zuma’s presidency.
A proper analysis of the recent developments concerning the spats around and within the South African Revenue Service; the success of Robert McBride’s challenge to the lack of independence of the Independent Police Investigative Directorate; the striking from the roll of advocates of two of Zuma’s handpicked National Prosecuting Authority (NPA) leaders; the standing committee on public accounts’ (Scopa’s) excoriation of the head of the Hawks; successes of the public protector in her investigations of maladministration; and even the turning of the electoral tide, starts with a resolution taken in December 2007 at the ANC’s Polokwane conference.
Until 2007, the ANC was serious about dealing properly with corruption. It had piloted and passed legislation and created the crack anticorruption troika-style team in the NPA known as the Scorpions.
In their last year of operation, the Scorpions seized contraband to the value of R4bn. Fearlessly, they investigated the “travelgate fraudsters” in Parliament and the activities of the police chief and then head of Interpol, Jackie Selebi, who was convicted on charges of corruption. They were even so bold as to investigate 783 counts of corruption, money laundering, racketeering and fraud against Zuma, then a private citizen.
In Polokwane, the ANC resolved to dissolve the Scorpions as a matter of urgency and replace it with what has become known as the Hawks. The Hawks now lead the national Anti-Corruption Task Team (ACTT), whose acronym is apt as it reflects the stuttering performance of its anticorruption activities.
The Hawks is a scrawny shadow of the Scorpions, as was brutally exposed when the NPA’s Berning Ntlemeza and Nomgcobo Jiba tried to field questions from Scopa members without much success. The component members of ACTT are so disengaged from their (admittedly part-time) duties that some did not even bother to show up for the Scopa showdown.
It is instructive to consider the rationale given by the ANC for disbanding the Scorpions and replacing it with the Hawks. The party’s then newly elected secretary-general, Gwede Mantashe, was frank in April 2008, when he discussed the matter with then leader of the opposition, Helen Zille. Mantashe is arguably the most powerful person in the ANC; some even call him SA’s unofficial prime minister. During his two-hour meeting with Zille in Luthuli House, he made four points worth repeating.
First, the ANC wanted the Scorpions disbanded because they were a “political unit made up of apartheid security branch members who treated the ANC like the enemy”. Second, the continued investigation of Zuma was an “abuse of power”. Third, the ANC would ensure its Polokwane resolution to disband the Scorpions was implemented. Finally, the ANC wanted the Scorpions disbanded because they were “prosecuting ANC leaders”.
Zille recorded these gobsmacking disclosures in an affidavit filed in litigation concerning the creation of the Hawks. No attempt to contradict her version of the conversation has ever been made. In short, the purpose of replacing Scorpions with Hawks was to insulate the ANC from criminal investigation for corruption.
The chickens are indeed coming home to roost on this decision. Mantashe himself now wails that something must be done about corruption and that the ANC must be seen to be doing it. But what?
Fortunately, our Constitutional Court has done something about corruption. In the litigation in which Zille’s affidavit was filed, it considered the need for effective and independent anticorruption machinery of state and came to the conclusion that five attributes are necessary components of success against corruption. The first is specialisation. The Hawks’s mandate extends to all “priority crimes”, a far wider mandate than ought to be given to a proper anticorruption unit. ACTT is also merely a collection of part-timers, none of whom regard anticorruption work as their speciality. The set-up cannot be described as sufficiently specialised, despite the court requiring, in binding fashion, that this be so.
Second, proper training is required. The Scorpions attended to this by sending personnel to the Federal Bureau of Investigation and the Serious Frauds Office of Scotland Yard. The Hawks has not been accorded the same training privileges.
Third, and most important, the need for independence is stressed. An ability to act without fear, favour or prejudice in a structural and operational context that is not affected by interference is at the core of effective anticorruption work.
The fourth binding component is adequate and guaranteed resourcing of the anticorruption entity. The ability of the executive and legislature to “cut off the oxygen supply” has to be controlled. An example is the manner in which the progress of the public protector was thwarted when her request for a mere R200m top-up to her budget (less than what was spent on Nkandla) was refused.
Last, the personnel of the anticorruption entity must enjoy security of tenure of office. This is what the Scorpions lacked. They were mere creatures of statute and could legally be disbanded by the passage of ordinary legislation. The same cannot happen to the public protector or any other Chapter Nine institution because they are creatures of the Constitution.
Mantashe was wrong on all four points he made in 2007, but he is right now: something must be done about corruption before, in the words of the chief justice, it becomes “something terminal”.
The best-practice solution is the creation of a new specialised, well-trained and independent entity that is properly resourced and enjoys security of tenure of office. Chapter nine of the Constitution is the appropriate home of a new integrity commission that should be designed to complement the activities of the public protector and the auditor-general.
Creating a commission involves the minor amendment of chapter nine and the passage of enabling legislation. Drafts of both are already available on the Accountability Now website. The idea of an integrity commission is already under consideration by the Constitutional Review Committee of the National Assembly. The political will to do the right thing is all that is wanting.
• Hoffman SC is a director of Accountability Now