Aristotle wrote in his first book of Ethics: ‘One swallow makes no summer, nor does one day’; the day that saw Jacob Zuma incarcerated for civil contempt of court is such a day.
Since 2013 charges against Zuma of theft and fraud in relation to the upgrade of Nkandla have been under investigation; since 2015 Zuma has faced a complaint that his decapitation of the NPA via the side-lining of then National Director of Public Prosecutions, Mxolisi Nxasana, amounts to a corrupt activity and an attempt to defeat the ends of justice; since 2017 the longstanding charges of corruption, fraud, money laundering and racketeering against him have been revived despite his long drawn out Stalingrad strategy in that matter. The matter of Zuma’s involvement in state capture was under investigation by the Office of the Public Protector until 2016 and has been ever since by the State Capture Commission.
The current incarceration of Zuma is entirely the work of the SCC and the Constitutional Court in civil proceedings. Apart from effecting the arrest and imprisonment at the last possible moment, the criminal justice administration has played no part in the dramatic events leading up to the imposition of the sentence of 15 months incarceration. Herein lies the rub.
At its 2017 conference at Nasrec the ANC officially turned itself against the widespread corruption in its own ranks. In August 2020 its National Executive Committee passed a resolution calling for the establishment of a new corruption busting body of the kind envisaged by the Constitutional Court in the Glenister trilogy of cases. Nothing effective has been done to comply with the resolutions of the conference in 2017 and the NEC in 2020.
Instead, President Ramaphosa announced in the course of his February 2021 state of the nation address that:
“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.”
Quite apart from the fact that a statutory body won’t cut it as it will not enjoy the security of tenure of office that is required in terms of the Glenister criteria and the NEC resolution, nothing further has been heard of the advisory council since it was heralded by the president.
The unfortunate truth is that the crony-riddled ANC has such large patronage networks and is so infested with corruption (both pre and post Nasrec) that it remains terribly irresolute when it comes to countering the corrupt. The covidpreneurism that manifested during 2020 is but an example of the ongoing corruption in high places during the Ramaphosa administration. The proverbial can (facing down the corrupt) is kicked further and further down the road as is apparent from the timelines set out above.
The failure of the criminal justice administration to deal with the corrupt is directly attributable to the fear that to do so would be a career limiting move. Just ask former NDPP, Vusi Pikoli who was suspended by then President Thabo Mbeki for charging Jackie Selebi, chief of police, with corruption and was dismissed by President Kgalema Motlanthe for charging Zuma with corruption. Selebi was convicted, Zuma remains on trial in a case that resumes in the KZN High Court on 19 July 2021 having been started by Pikoli in 2007.
Other examples abound: Bheki Cele was dismissed as commissioner of police after he was found to be “incompetent and dishonest”. The Moloi board of inquiry recommended that he be investigated for corruption. Nothing has been done about this recommendation. Several cabinet ministers should be in the dock for perjury (Gigaba and Dlamini, for example) and for assorted other corrupt activities. They are not. Zweli Mkhize is on gardening leave while his involvement in covidpreneurism is investigated by a body with no prosecutorial powers, the Special Investigations Unit. The scandalous arms deals, Sarafina Two, travelgate fraudsters, the Hitachi Power Africa deal and assorted other procurement frauds as well as state capture remain largely untouched by the criminal justice administration as it limps from excuse to excuse for not being able to do its work.
In order to be efficient and effective the anti-corruption machinery of state needs to comply with the criteria laid down in the Glenister cases. It must be specialised and dedicated to dealing with corruption to the exclusion of all else. (Unlike the Hawks police unit which has responsibility for priority crimes but seems to keep the relevant corruption dockets at the bottom of its in-trays). The personnel must obviously undergo suitable training. The independence of the institution on a structural and on an operational level must be secured. The resources it uses must be adequate and guaranteed. Unlike the Scorpions of the pre-Zuma era it must enjoy tenure of office that is secure. Freedom from executive influence and interference is required in order to counter the corrupt without fear, favour or prejudice. (Pikoli has gone so far as to suggest that these activities should be criminalised.)
These five criteria – specialisation, training, independence, resourcing and security – have become known as the STIRS criteria. Even the new Investigating Directorate of the NPA is not STIRS compliant as it serves at the pleasure of the president in terms of a proclamation he made without due regard to the binding nature of the STIRS criteria laid down by our highest court.
What then is to be done to find more “swallows” with which to establish the anti-corruption “summer” in SA?
Accountability Now has long advocated the establishment of a new Chapter Nine Institution to counter grand corruption, kleptocracy and state capture. Draft legislation and the necessary constitutional amendment have been presented to successive parliaments with no discernible impact since 2012.
The parliament elected in 2019 has yet to be approached by Accountability Now with representations on the topic. Perhaps naively the resolutions at Nasrec and in 2020 were taken at face value. It has now become clear that the NPA is compromised and hollowed out, it is littered with “saboteurs” who stand in the way of effective and efficient anti-corruption efforts. The 2012 drafts need to be revisited in order to accommodate this reality. The new body needs to be clothed with prosecutorial powers in addition to the powers to prevent, combat and investigate corruption.
The summer of anti-corruption activity within the criminal justice administration can be achieved if the necessary political will to effect the reforms required can be mustered. The incarceration of Jacob Zuma may, with the inspanning of that political will, turn out to be the first swallow of a long overdue anti-corruption summer.
Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.
11 July 2021.
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