There is legal medicine for a troubled Zweli Mkhize – it is called Eagles

by | Sep 6, 2017 | General, Integrity Commission | 0 comments

One gathers from the available evidence that the ANC’s Treasurer General, Dr Zweli Mkhize, is one of the better cadres of the ANC. He did, after all, nominate Cyril Ramaphosa for deputy president at Mangaung and joined him earlier this year in his criticism of the clearly corrupt and wrong-headed decision to dismiss finance minister Pravin Gordhan and his deputy from the cabinet. Dr Mkhize’s presentation to Parliament on the future of political party funding has been described as superior; he is apparently one of the leaders worth having on one’s side.

The good doctor has recently presented the nation, by way of an article in the Sunday Times, with his diagnosis of the various ailments currently afflicting the ANC, which he lists as corruption, state capture, “a dislodged centre of power”, poor leadership and greed. He complains, with justification, that these ills are afflicting him with what he calls, with some justification, a “migraine that won’t go away”.

While it is perhaps presumptuous for a lawyer to offer a doctor a treatment for as debilitating a condition as a migraine, there are certain legal remedies that should be considered if a migraine is to be nipped in the bud.

Greed is the cause of most corruption, especially when the centre of power is “dislodged” (itself a manifestation of corruption); state capture is a manifestation of grand corruption in high places and poor leadership facilitates corruption. It follows logically that the migraine of which Dr Mkhize complaints is caused by the levels of corruption in the land and that addressing the causes of corruption ought to alleviate the various symptoms (our weak economy, poor service delivery, joblessness and an accountability deficit) of the headache that so bothers Dr Mkhize. He well knows, from his medical training, that treating the causes rather than the symptoms is a preferable procedure if a lasting cure, rather than temporary symptomatic relief, is the desired outcome.

What then is the “cure” to the cause of corruption as its corrosive effects manifest inside the aching head of the ANC treasurer general?

Fortunately for Dr Mkhize, the Constitutional Court has written up a prescription which is sitting on the shelf available for immediate administration. It has unfortunately just not been administered by the criminal justice system in the Zuma years for reasons that are obvious now that the #Guptaleaks show and tell all. The prescription contains, as its most powerful ingredients, the characteristics of an anti-corruption entity that has the clout to knock out corruption and relieve a headache rapidly.

When it compiled the prescription in 2011, in the Glenister litigation over the inadequacy of the Hawks, the court explained, in the words of then Deputy Chief Justice Moseneke and Justice Cameron, why it was doing so:

“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 fulfill its obligations to respect, protect, promote and fulfill 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 are put at risk.”

Later, and still writing on the same prescription pad for the same patients, the Chief Justice ominously noted in 2014 that:

“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 South Africa 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.”

The core ingredients of the remedy prescribed by the court, in binding terms, are that the entity must be dedicated to acting against the corrupt in a specialised fashion, using well-trained personnel who are independent, have properly guaranteed and adequate resources and who enjoy the security of tenure of office. These are called “the STIRS criteria” by the lawyers who long to be part of administering the cure to the headaches that are caused by corruption in SA.

It is not beyond the wit of the ANC to make the medicine that the court has prescribed. The Scorpions, a crack unit of the National Prosecuting Authority, had all of the STIRS ingredients except the last: as mere creatures of statute they did not enjoy the security of tenure of office and were closed down as soon as the Zuma faction of the ANC got its hands on the levers of power. However, it was, in fact, the ANC that created the Scorpions. It definitely has the capacity and the traditions to do what is necessary to properly formulate the medication and to administer it to the body politic in SA. Currently, it lacks the will to do so for reasons which are revealed in the #Guptaleaks that bring on the migraine.

Another doctor who aspires to lead the ANC, Nkosazana Dlamini-Zuma, would be well advised to take note of the medicine required and to incorporate its rapid and regular administration into her election manifesto.dl

The Hawks, created in place of the Scorpions, do not possess any of the STIRS criteria. They are so weak as to not even qualify as a homeopathic remedy for corruption. Their activities are of an ever diminishing quantity (arrests down from around 14000 to around 5000 per year) effectiveness (fewer convictions and no big fish caught) and they have been abused to persecute good people who have crossed the ANC’s Zuma faction (Gordhan, Pillay, Breytenbach, Booysen, Dramat, Sibiya and many others).

In short: the Hawks are not specialised, they do all sorts of priority crime investigation; they are not trained to the standard of the Scorpions; they are not able to function independently without fear, favour or prejudice; they are under-resourced and they do not enjoy security of tenure of office as can be seen from the sorry fate of their senior men: Dramat, Sibiya and Booysen.

The necessary medication that Dr Mhkize is crying out for is already on the shelf in the Constitutional Review Committee of the National Assembly. It is labeled “The Eagles” and it comprises a STIRS compliant new Chapter Nine Institution called the Integrity Commission. The brand name “Eagles” is to distinguish the potency of this medicine from the Hawks brand. The Eagles fly higher, see further and go after bigger prey than the Hawks. Although the Committee has the formula, it is yet to prescribe the medicine needed to ensure good governance without corruption. Dr Mhkize has an account with the Committee and some comradely cadres deployed on it. He should simply ask it to prepare the necessary prescription for him and the country.

By December there will only be two factions left in the ANC: one that is prepared to tolerate and accommodate corruption (sometimes called “the traditionalists” or the Zuma faction) and one that is not (usually called “the reformists” or the constitutionalists, led by Ramaphosa).

It is vital to the survival of the country, and the ANC, that the faction that is intolerant of corruption wins through. SA will surely fail as a state, with dire consequences, if the corrupt faction prevails and is able, against all odds, to secure sufficient electoral support to stay in power in 2019. Dr Mhkize’s migraine will graduate into “something terminal” (to use the pithy phrase of the Chief Justice) if this unpalatable outcome occurs.

Oliver Tambo did not tolerate corruption.

Another matter on which Dr Mhkize needs to get his head straight concerns the essential nature of constitutional democracy under the rule of law. Contrary to what he somewhat loosely says, there is no “ruling party” in such a system; only a “governing party” which itself is ruled by the law and the Constitution. Acting on this fundamental notion will spare the good doctor a great deal of headaches and other ailments not necessarily, but quite possibly, related to corruption.

As Accountability Now would prefer not to see Dr Mhkize suffering from his migraine, we are prepared to counsel him and any structure or branch of the ANC that is desirous of learning more about the Eagles as a cure to the headaches that the ANC and the country have because of the corruption that is currently rampant in the governance of the land and our criminal justice administration. We have, without success, made this offer before, but perhaps it was received by the cancerous faction of the ANC that is tolerant of corruption. If Dr Mhkize stirs (not shakes) the court’s concoction his head will feel a lot better than if he goes through the looking glass to consult the Queen of Hearts, whose remedy of choice is radically transformative, but definitively terminal.

Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt”.

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