By Paul Hoffman
Paul Hoffman SC is a director of Accountability Now.
Now that Deputy Minister of Justice John Jeffery has revealed that Cabinet regards capacitating the criminal justice administration to counter corruption as urgent, it is incumbent upon both the legislature and executive to do what is needed to right the ship of state.
Deputy Minister of Justice John Jeffery has made a remarkably heart-warming statement in an interview with veteran journalist Chris Barron in the Sunday Times (subscription needed). Asked about funding efforts of the state in relation to countering corruption as revealed in the evidence before the State Capture Commission he answered:
“We’re very much seized with a sense of urgency on the corruption matters.”
Chief Justice Raymond Zondo has remarked that “an army of prosecutors” will be needed to deal with the cases requiring attention as a consequence of the attempted State Capture.
Given that the loot of State Capture has been estimated at between R1- and R2-trillion (yes, that is 12 zeros to the left of the decimal point) there is every reason for the state to regard the matter of recovering the loot and holding the looters to account in criminal trials as urgent. That amount of loot is difficult to hide, as Russian oligarchs are currently discovering. The efforts of Bill Browder, the UK-based American-born lawyer who has written the books Red Notice and Freezing Order, have left no place for them to hide the loot of their capture of the Russian state.
The same rules apply to those who have looted South Africa. The international SWIFT banking system is able to trace the movement of loot across the globe and banks are bound to guard against money laundering. Even assets like superyachts, Dubai apartments and a premier division English soccer club are not immune to the attention of those who have the political will to track down, freeze and finally recover loot amassed by those involved in corrupt activities.
The political will to tackle the corrupt is the essential — and until now missing — ingredient in any effort to counter corruption
It is also appropriate that Cabinet is seized with the necessary sense of urgency. Parliament, misguidedly so, ignores its constitutional obligation to initiate remedial legislation, or indeed any legislation. Its chief legal adviser incorrectly believes that Parliament should show deference to the national Cabinet. In fact, it should exercise oversight over the activities of Cabinet, exact accountability from the ministers who have been appointed by the president and ensure implementation of legislation in a constitutionally compliant manner. These requirements are all expressed in section 55 of the Constitution.
The notion of deference to the Cabinet is part of the political approach of the governing alliance which adheres to the principles of “democratic centralism” in which decisions cascade down from the leadership (Cabinet) to the followers (Parliament) in pursuit of the deeply unconstitutional goals of the National Democratic Revolution. These ideas are nowhere to be found in the Constitution itself.
The anomaly is because the revolution is aimed at the seizure of hegemonic control of all levers of power in society while the Constitution is bound by respect for the rule of law, the exercise of checks and balances over the use of power and the separation of powers between the various institutions of State. Conduct or laws inconsistent with the Constitution are liable to be struck down as invalid.
Now that the deputy minister has revealed that Cabinet regards capacitating the criminal justice administration to counter corruption as urgent, it is incumbent upon both legislature and executive to do what is needed to right the ship of state in its efforts to counter corruption.
There is unanimity among most major political parties on what it is that needs doing. The reform of the criminal justice administration to bring it into line with the binding criteria set by the Constitutional Court in the Glenister litigation is the bedrock on which urgent attention to corruption must be founded. This is not only because the court orders are binding on the state, it is also because of the emerging political consensus on the matter.
Accountability Now has long advocated the establishment of a Chapter Nine Integrity Commission (Ch9IC) with a mandate to prevent, combat, investigate and prosecute serious corruption. Its suggested legislation may not be the holy grail, but it is compliant with the criteria set by the court with binding effect on government.
The drafts prepared by Accountability Now were supplied to Cabinet and Parliament in August 2021. They should be dusted down and debated in Parliament so that the remedial legislation needed can be aired in public with the participation of active citizens. The Ch9IC could be established within months if the cross-party consensus is used to good effect and the public participation process is given the urgency that is now conceded.
The National Executive Committee of the ANC is on the same page as Accountability Now. In August 2020 it instructed Cabinet to establish, as a matter of urgency, a stand-alone, specialist, permanent and independent anti-corruption body that ticks all the boxes of the binding Glenister criteria. When no reaction by Cabinet to this instruction emerged in public within a year, Accountability Now made its drafts available publicly and to Cabinet and Parliament. They are on the Chapter Nine page of its website together with an explanatory memorandum. There is an executive summary of the memorandum. It reads:
(a) Serious forms of corruption like grand corruption, State Capture and kleptocracy in South Africa are criminal violations of fundamental constitutional and human rights. They are literally killing many South Africans, mostly the poorest.
(b) The anti-corruption machinery of state in SA is currently not fit for purpose especially regarding serious corruption in all its forms. The NEC of the ANC has called for the urgent creation of a new entity that is permanent, specialised, independent and stands alone to deal with corruption.
(c) Our prosecutors and police, due to the ravages of attempted State Capture, lack the required capacity to counter the corrupt efficiently and effectively
(d) The Constitutional Court, in the Glenister cases, has provided binding criteria for the establishment of functional corruption-busters who are fully able to carry out the international treaty obligations of SA
(e) That court has called upon Parliament to make “the reasonable decision of a reasonable decision-maker in the circumstances” regarding the countering of corruption.
(e) The current circumstances in SA dictate that a best practice reform is urgently required in order to bolster the country’s vulnerable culture of respect for human rights and boost confidence in its governance and economic prospects.
(f) The ANC, DA and IFP all favour the notion that a new body needs to be established to deal with corruption.
(g) Accountability Now has already prepared draft enabling legislation and a constitutional amendment so that the necessary constitutionally-compliant next steps can be taken to save the country from the scourge of serious corruption — and the imminent potential of failed state status. The current drafts accompany this memorandum.
The introductory paragraphs of the memorandum are also instructive:
The ability of the SA state to deal with grand corruption, kleptocracy and State Capture has been compromised during the two successive Zuma administrations following the election of Jacob G Zuma as leader of the ANC at Polokwane in December 2007. Despite his resignation on 14 February 2018, the legacy of the leadership of Zuma lives on in the criminal justice administration where his appointees in the police and prosecution services continue in office and perpetuate the agenda of Zuma and his cronies.
New leadership in the NPA, appointed by President Cyril Ramaphosa, describes the institution as “hollowed out” and infested with “saboteurs” intent upon protecting Zuma-era malfeasance against investigation and prosecution. Many facets of the State Capture project have emerged from the shadowy reaches of the Zuma administration and into the sanitising light of the State Capture Commission.
Much illuminating evidence has been given. The evidence has emerged from brave whistleblowers and various investigators. The deceitful, deliberate and delinquent refusal of Zuma to cooperate with the commission has not prevented the commission from exposing industrial-scale malfeasance. His refusal has led to his civil law incarceration due to his contempt for the order of the Constitutional Court that he comply with a summons from the commission.
The Ramaphosa administration supports the work of the commission and has contributed about a billion rand to its investigations in the form of fees for forensic investigators, the evidence leaders and the commission secretariat and venue.
The head of the commission, Chief Justice Raymond Zondo, is due to report finally on his findings of fact and on his recommendations to government by 15 June 2022. His findings and recommendations are not of a binding nature. However, they will be instructive and informative to those who favour good governance under the rule of law and the Constitution in the place of the capture of the state by kleptocratic forces bent on satisfying their own greed rather than promoting the public good.
There is an urgent need to rake back the loot of State Capture and to hold those responsible for grand corruption and kleptocracy associated with it to account in both the civil and criminal courts of the land.
Following the disturbances in KwaZulu-Natal and Gauteng in July 2021, there is also a need to re-establish business confidence in the future of SA so that much-needed investment in the rebuilding of the vision of the Constitution can be made from both local and foreign sources. While grand corruption holds sway, all forms of confidence and investment wane, when corruption is dealt with decisively they wax.
The UN Sustainable Development Goals, to which SA subscribes, require strong institutions of government. The UN points out that: “Conflict, insecurity, weak institutions and limited access to justice remain a great threat to sustainable development.”
Currently, the SAPS and NPA are constitutionally mandated to deal with corruption. The police, via the post-Scorpions Hawks unit, must investigate all forms of corruption. The NPA must prosecute the corrupt identified in police investigations or in the work of its new Investigating Directorate (ID), a body introduced by presidential proclamation to serve at his pleasure with a limited mandate. Because it lacks independence and is under executive control, it is questionable that the ID passes constitutional muster.
The SAPS has been identified by the Institute for Security Studies and by Corruption Watch as the most corrupt of state institutions. Expecting the police to act as effective and efficient corruption busters is akin to asking Kaiser Chiefs supporters to vote for Pirates.
It is to be hoped that the answer given to Chris Barron by the deputy minister is not the utterance of that single swallow that does not a summer make. It is not as though “Comrade JJ”, as he is fondly known in political circles, is not familiar with the importance of the anti-corruption machinery of state in SA. As a lowly backbencher in Parliament in 2009, after the election of Jacob Zuma as president for the first time, he led the charge against the Scorpions whose fate was sealed by a simple majority of parliamentarians acting in accordance with Luthuli House democratic centralism notions instead of under the rule of law.
No legitimate purpose of government was served by dissolving the Scorpions, whose main sin was that they did their work too well on highly placed politicians and their associates in business. Had the Scorpions been a Chapter Nine institution, the ANC would not have been able to muster the two-thirds majority necessary to dismantle them, and the Scorpions would still be with us today and might have nipped State Capture in the bud.
The deputy minister can atone for his missteps back then by ensuring that the reforms now urgently necessary include provisions that afford corruption busters secure tenure of office. SA cannot afford a repeat of the Scorpions debacle in which the recommendations of the Khampepe Commission of Inquiry into the retention of the Scorpions were swept aside and ignored.
The urgency of which Jeffery speaks in his interview with Chris Barron should not be lost from sight. The drafts exist, the policy parameters, criteria for success and legal requirements have been spelt out in binding terms by the Constitutional Court. The time for action is now.
Active citizens are encouraged to draw the attention of parliamentarians, public servants and members of the executive to the statement made by the deputy minister as quoted above. It is not enough that the Ministry of Justice be seized with a sense of urgency. The entire top tier of government of the country, whether in the national Cabinet or the national legislature, needs to act on the sense of urgency revealed by the deputy minister by taking the appropriate steps now — steps to comply with an order of court that directed Parliament to put in place effective and efficient adequately independent machinery of state to counter corruption.
S0uth Africa has tried to make do without proper compliance with binding court orders for too long. The circumstances now are such that a Ch9IC is the idea whose time has come. Establishing it will be a best practice way of complying with the rules set in the Glenister litigation.
It is the right thing to do. DM