INDEPENDENCE OF THE HAWKS – ANC claims it is fighting corruption, but evidence points the other way

by | Aug 14, 2017 | General, Glenister Case, Integrity Commission | 0 comments

“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.” Judge Dikgang Moseneke and Judge Edwin Cameron

No political party in SA is officially in favour of corruption. All of them make pious noises about their anticorruption stance. Usually, this is no more than wishful thinking or the paying of lip service to the desires of the electorate, without any fixed and identifiable programme of action to deal with the corruption in the body politic and society in general.

Yet the corrupt are in the process of bringing the country to its knees as Guptaleaks disclosures scare off foreign direct investment, as ratings agencies reduce SA to junk status, and as the economy languishes in recession.

A single example (there are many more) of the type of lip-service to which the long-suffering public is subjected can be found in the detailed and carefully constructed announcement by ANC treasurer-general Zweli Mkhize on the regulation of political party funding: “The ANC is in the forefront of ensuring clean governance, vigorously fighting corruption and ensuring clean sources of party funding.

This utterance has many reaching for the sick bag at a time when Andrew Feinstein, a former ANC MP who was hounded out of office for his anticorruption stance, still complains bitterly that bribes totalling about R4bn were involved in the arms deals of 1999.

There is also the small matter of the ANC’s investment, via Chancellor House, in Hitachi Power Africa, a deal that magically turned an initial “investment” of under R1m into a windfall of more than R5bn. Hitachi has had to account for this unique deal in the criminal courts of the US, but the ANC sails on unaffected by the perfidious methods of fundraising in which it is involved. No other political party is equipped to raise even a fraction of these amounts of ill-gotten gains.

It is arguable that there have been no fair elections in SA since that of 1994, because no opposition party has had access to the type of funding that arms deals, Hitachi collaboration and other nefarious activities (now revealed by the Guptaleaks) have brought into the kitty controlled by the ANC treasurer-general.

The constitutional mandate of the Electoral Commission of SA (IEC), to “ensure free and fair elections”, lies in tatters. The fear of a stolen election a la Zimbabwe in 2019 (using Gupta technology within the IEC) has true democrats thoroughly panicked.

As for Mkhize’s professed commitment to “vigorously fighting corruption” — where is the evidence for this statement? It is the ANC that urgently dissolved the Scorpions, it is the ANC that created the puny Hawks in their place and it is on the ANC’s watch that corruption has reached endemic proportions that threaten our constitutional project and that place the country in danger of becoming a failed state.

While the ANC has governed the independent and functional criminal justice administration has been reduced to a shambles. Cadre deployment in police management; the weeding out of autonomous chief prosecutors such as Vusi Pikoli and Mxolisi Nxasana with replacements of the ilk of mendacious Menzi Simelane and Shaun Abrahams; and infestation of top National Prosecuting Authority management with personnel struck from the roll of advocates, have all served to reduce the management of the prosecution service to a mere shadow of its former status, as well as to render the police dysfunctional.

Only the courts have been able to hold the line in the torrent of malfeasance that has accompanied the wicked laws and policies in place to protect the likes of the president and his kleptocratic cronies.

Consider the words of Judge Dikgang Moseneke and Judge Edwin Cameron when they rejected the constitutionality of the first incarnation of the Hawks in March 2011:  “There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.

“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”

If those resounding words do not suffice, the opening salvo in a later case on the same topic, fired by Chief Justice Mogoeng Mogoeng in November 2014 should: “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 SA 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. This, in a way, is the issue that lies at the heart of this matter. Does the South African Police Service Act, as amended again, comply with the constitutional obligation to establish an adequately independent anticorruption agency?”

As the process of “graduating into something terminal” due to rampant corruption is at an advanced stage, it is appropriate and timely to have regard to the need for a manifesto for curing corruption, or at least tackling it in the manner required by the highest court in the land. It is worth noting that the Constitution means what the courts say it means; and that, accordingly, the state is bound by the requirements spelt out by the chief justice in the second passage quoted above.

These requirements have been summarised as the “Stirs” criteria for anticorruption machinery of state: specialised, trained, independent and properly resourced personnel who enjoy security of tenure of office. The realisation of these criteria is best achieved by the establishment of an integrity commission clothed with the powers and protections of chapter 9 of the Constitution. This strategy is the best way to ensure security of tenure of office, the one criterion the Scorpions did not enjoy, to the everlasting regret of freedom-loving citizens who aspire to a corruption free state.

All political parties that are serious about their commitment to dealing appropriately with corruption should expressly commit to the creation of the integrity commission. The anticorruption work of the Hawks should be transferred to the commission and the Hawks should be allowed to continue to deal with other priority crimes. The Hawks do not meet the requirement of specialisation and are not sufficiently independent, either structurally or operationally, to withstand political and other influences and interferences.

The ability to act without fear, favour or prejudice is more readily achieved by a Chapter Nine institution than by a police unit, as can be seen from the track record of the auditor-general and the public protector when compared to that of the Hawks.

Latterly, the Hawks have been reduced to the dirty tricks department of the Zuma faction of the ANC, as best demonstrated by the persecution of Pravin Gordhan, in which Abrahams was an active participant.

The public, civil society, faith-based organisations, the business sector and donors to political parties should insist upon the express and unequivocal commitment of all political parties to the establishment of an integrity commission.

No thinking and concerned voter should cast a vote in favour of any political party that does not include in its 2019 election manifesto a clear and unequivocal commitment to the establishment of an integrity commission that is the proper fulfilment of the criteria set out by the court and laid down in binding fashion in the two cases quoted from above.

We neglect these requirements at our peril as a nation.

• Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt.

Article published in Bdlive on 8 August 2017

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