1. Introduction

The purpose of this talk is to present an argument designed to persuade our politicians, and you, that the reform of the criminal justice administration in SA is an urgent priority. We are at a delicate juncture in  developing as a constitutional democracy. The entire project is under threat from the corrupt, the kleptocrats the tenderpreneurs and the state capturers. Some suggestions on how best to achieve the reform needed are timely.

My talk is divided into three main parts. The first sets the context from constitutional, political and social perspectives. The second is the Problem Statement and finally some thoughts are shared on what needs to be done to get out of the difficulties we are in as a country.

The opportunity to offer to you an overview of the work of Accountability Now is much valued and the assistance of those who helped us to the point at which it is possible to assemble the outcomes of more than a decade of work on the anti-corruption aspects of accountable governance is acknowledged with gratitude. While it is invidious to name names, it would be remiss of me not to say a big and heartfelt “thank you” to the Konrad Adenauer Stiftung. Its programme on promoting the rule of law in Sub Saharan Africa is critical to the continent attaining a successful trajectory in which the current downward vortex is reversed and peace, progress and prosperity for all are the new order of the day.

• The relevant context constitutionally, politically and socially.

Ours is a constitutional democracy in which the supremacy of the rule of law is expressly stated in the first section of the national Constitution. It came into operation in February 1997 with the support of the overwhelming majority of the political parties and the people of SA. Previously, under apartheid and before that, SA was a parliamentary sovereignty, which is a very different form of government deemed unsuitable for the new SA united in its diversity and working toward respect for human dignity, the achievement of equality and the enjoyment of human rights guaranteed to all. No longer can politicians do as they please; they are bound by a supreme Constitution.

Our state of the art Bill of Rights requires the state to respect, protect, promote and fulfil all of the rights it contains, and there are many, some of which are very expensive to deliver. These include access to education, health care, social security, housing and food for all. Some rights are hedged about with conditions that subject them to realization progressively on the basis of available resources, other are deliverable immediately.

Values and principles that include the separation of powers, checks and balances on the exercise of power, an impartial and independent judiciary, six “Chapter Nine Institutions” to help bed down constitutionalism in SA and freedom of the media underpin much that is good about our constitutional order.

The public administration is bound by values and principles that require it to be ethical, effective, efficient, transparent, objective and accountable. These values also apply to our state owned enterprises.

Importantly for our theme today, conduct or laws that are inconsistent with the Constitution are invalid. The meaning of the Constitution is determined by the Constitutional Court, an institution that did not exist in the old SA and which is pivotal to a future under the rule of law in which our success as a nation is achieved.

From a political perspective, SA has, post 1994, become what political scientists describe as a dominant party state. The alliance led by the ANC has been in government at national level since 1994 when the first free elections were held and at provincial level in most provinces. This phenomenon is typical of post liberation African countries as they exit the yoke of colonialism. The “liberation dividend” lasts about a quarter of a century. It is abused by politicians and the politically well-connected to enrich themselves and eventually the people assert their displeasure at the ballot box if they are able to do so and the liberation parties fade away; as happened in Zambia recently when the party of liberation won less than 1% of the votes. Where the franchise cannot be fairly exercised authoritarian dictatorships presided over by the “Big Men” of Africa stagger from coup to coup. The abuse in SA has taken to form of the state capture phenomenon which is the subject of a commission of inquiry which is due to report by the end of 2021, having taken evidence for three years. Its recommendations are likely to be of a game changing nature and could include the proscription of cadre deployment in the public administration and state enterprises of all kinds.

Political scientists may contend that the dominant party state in SA has been supplanted by a hybrid state , a captured state or a criminal state in some respects. Others warn of failed state status. Clem Sunter puts the odds of failure at 50/50.

The motivational force driving the alliance is called the National Democratic Revolution (NDR). Not unlike the Holy Roman Empire it is not national, not democratic in the constitutional sense and not a revolution. A party in power can hardly pursue a revolution without success for more than a quarter of a century. Multi-party democracy with regular free and fair elections cannot occur when the dominant party has secured its programme of achieving what it calls hegemonic control of all the levers of power in society, including institutions that are supposed to be independent like the judiciary, the press and the Chapter Nine Institutions. The “Chapter Nines” are the general integrity branch of government that is meant to keep the legislature and executive on the straight and narrow path of the Constitution.

In short: the excesses of Afrikaner nationalism have been replaced by some excesses of African nationalism, infused with outmoded communism and unionism; none of these “isms” regard the rule of law with the level of sanctity accorded it in the Constitution.

In this scenario the role of civil society assumes critical proportions. Either society rolls over and plays dead or it stands up for the values of our hard won Constitution. That is the choice every potential voter faces at election time. More people did not vote than voted ANC at the last general election. Rolling over and playing dead by opting out of a hard won right. Apartheid was abandoned in favour of the Constitution and it could be in this way that the path of the NDR will also fizzle out unlamented in the face of its waning popularity at the polls.

The social conditions in SA at present are parlous. The economy is in the doldrums; junk status is our national lot. Investment is not being attracted, business confidence is at a low ebb and joblessness is higher than it has ever been in the new SA. Inequality has been exacerbated, poverty is the fate of about half the people and hunger stalks the land despite a third of food produced ending up on landfills. Unity in diversity remains elusive; riots and looting in July 2021 in two provinces may be harbingers of events to come. Factionalism in the ANC is rife and murderous. Gender based violence is a scourge. Crime rates, especially violent contact crimes, are on the increase at double digit rates. People do not feel safe; they worry about jobs and about corruption. And there is a pandemic in progress.

During the Zuma-era state capture years about R1,5 trillion was looted from the state and state enterprises. There are eighteen zeroes to the left of the decimal point in a trillion. It is a great deal of money that could, instead of lining the pockets of the corrupt, been used to build houses, schools and hospitals. Pit toilets could be history by now had the wholesale misappropriation of public money not been allowed. Corruption is theft from the poor.

Corruption properly countered is the central challenge in restoring SA to the path of constitutional democracy under the rule of law. A society of dignity, equality and freedom which can enjoy the rights guaranteed to all.

• The Problem Statement.

Respect for human dignity is not easily achieved at the best of times. It is more unattainable when joblessness, poverty and inequality stalk the land because corruption is destroying its potential. Most people derive their self-esteem from the dignity of having a job that enables them to be a provider. Men without jobs hate themselves and express their self-loathing and frustrations in the violent and terrifying excesses of GBV.

Jobs are hard to come by when no investors are prepared to chance investing in a society that is obviously being stolen blind by kleptocrats, those who use their power to steal.

Business confidence wanes as corruption waxes. While corruption with impunity continues, as seen lately in covidpreneurism, a reprehensibly amoral activity if ever there was one, the chances of restoring business confidence remain slim.

Inequality is best address by improving the lot of the poor, not by impoverishing the well-to-do and the rich. The latter leave in droves when they feel overtaxed, and SA is already the most highly taxed country on the continent. The brain drain has a negative impact in every way imaginable.

At the heart of all of the social and economic challenges is the ongoing high rate of grand corruption with impunity in SA. Unless it is addressed urgently, pro-actively and in a manner that counters corruption effectively and efficiently the prospects of SA becoming a failed state, with all of the attendant misery that entails, increase daily.

The problem is that SA has yet to generate the political will to address the evils of unchecked serious corruption. If that will cannot be found, the entire constitutional project is imperilled.

Let us all pay attention to the poetic words of the Constitutional Court spoken in March 2011 by Deputy Chief Justice Moseneke and Justice Cameron:

“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.”

The well known STIRS criteria for the anti-corruption machinery of state were put in place in their judgment in terms that are loud and clear. More importantly, the criteria are binding on the state. The state, on former president Zuma’s watch, chose not to be so bound, leading to further litigation in which the STIRS criteria were re-affirmed and the Chief Justice Mogoeng Mogoeng remarked, in the majority judgment, 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 SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

What has clearly emerged from the evidence given to the Zondo Commission is that the criminal justice administration is in urgent need of radical reform if the state is to be duly bound by the above decisions on corruption as a violation of human rights.

Accountability Now has been talking this talk for many years. In 2012 it proposed some amendments to the law and in 2016 it was allowed an audience by the Constitutional Review Committee of the National Assembly to explain its stance. That committee was chaired by Vincent Smith of the ANC. He now graces the dock in a criminal court facing charges of corruption arising out of his untoward relationship with Bosasa.

The situation has deteriorated considerably since 2016. The end of the Zuma era in 2018 has not caused the turnaround that the reform ticket anti-corruption “New Dawn” leadership promised. Instead, a bit more talking the talk but no walking the walk. Which is a problem.

• What needs to be done about serious corruption in SA.

The National Executive Committee of the ANC has published its thoughts on the topic in August 2020. A report in the Citizen newspaper is accurate:

“The NEC called upon the ANC-led government to urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption. Furthermore, the NEC called upon all law enforcement agencies to carry out their duties without fear, favour or prejudice.”

Alas, this call has not been answered by cabinet. Instead a dithering response was given in the SONA of February 2021:

“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to parliament.”

President Ramaphosa has clearly forgotten that the Scorpions were an “independent statutory anti-corruption body” that his party destroyed because the Scorpions did not enjoy sufficient security of tenure of office. It is sobering to consider that had they been a Chapter Nine or constitutional institution, not a mere creature of an ordinary statute, they would still be functioning today and state capture would most likely not have been possible.

Sensing that progress in the right direction, in the direction desired by the NEC, is being thwarted, Accountability Now took the step of revisiting its 2012 draft legislation with a view to updating it to meet the conditions on the ground in 2021. A constitutional amendment and enabling legislation for the establishment of an Integrity Commission under Chapter Nine to prevent, combat, investigate and prosecute serious corruption is the outcome of the work done this year.

The executive summary for the legislature and cabinet introducing the two draft bills succinctly sets out the aim of the exercise:

Executive summary

(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.

(f) 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.

(g) The ANC, DA and IFP all favour the notion that a new body needs to be established to deal with corruption.

(h) Accountability Now has already prepared a 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.

Defining serious corruption is a challenge. We have selected a cut-off point of R5 million, parliament may decide differently.

The prosecution of serious corruption will, if our draft is accepted, be removed from the ambit of the mandate of the prosecution service and from the priority crimes that are the work of the Hawks in the current dysfunctional dispensation.

We have suggested that the National Prosecuting Authority be freed from the shackles of the “final responsibility” of the minister of justice. In the only response received to the drafts the NPA says it has noted the contents of the drafts, without demur.

The politicians in cabinet and parliament are currently pre occupied with the local government election due on 1 November.Their attention will return to reform initiatives after that date and hopefully the drafts will come up for consideration.

We appeal to all who are sick and tired of serious corruption and long for integrity in governance to express their support for our initiative and to put such pressure as they are able on politicians in order to generate the political will to reform the criminal justice administration along the lines we suggest with such amendments, additions and tweaks as parliament deems meet. People generate the political will to do what is right, not just politicians.

The drafts are available for scrutiny on our website; they are suggestions and we are very open to counter-suggestions designed to improve on our work.

Paul Hoffman

21 September, 2021.