9th August 2020 by Jackie Cameron

President Cyril Ramaphosa has issued a range of statements indicating he is serious about excising corruption. He recently announced that a Committee of Ministers would deal with allegations of corruption in connection with efforts to combat Covid-19. He has asked Ministers and Premiers to share the names of companies and details of tenders and contracts that have been awarded in national departments, provincial governments and public entities during the period of the National State of Disaster. Paul Hoffman, an advocate at Accountability Now, joins the dots from the ANC’s National Executive Committee to Cabinet decisions, pointing out where former leaders like Jacob Zuma managed to weaken the justice system. In this thought-provoking piece, Hoffman asks whether the ANC has finally reached its Eureka moment on countering corruption. – Jackie Cameron

Has the ANC reached its “Eureka!” moment on countering corruption in SA?

By Paul Hoffman

Archimedes has gone down in history as the ancient Greek who ran naked through the streets of Syracuse shouting “Eureka!” (which is “I have it!” in Greek). The story behind that event was that Archimedes was charged with proving that a new crown made for Hieron, the king of Syracuse, was not pure gold as the goldsmith had claimed. While pondering his mandate, Archimedes took a bath and noticed that the water rose as he immersed his body. Pure gold would displace a different amount of water than false gold thus proving the veracity of the claim.

While it may be too much to expect the members of the National Executive Committee of the ANC (its highest decision-making body between conferences) to run naked through the streets of Gauteng after their meeting at the beginning of August 2020, there are grounds to suggest that a “Eureka moment” may have been reached during that meeting.

The meeting is confidential, so no one not present knows exactly what happened during the deliberations. Wild stories of conflict and confrontation between the Secretary General, Ace Magashule, and the President, Cyril Ramaphosa started doing the rounds on Sunday. Let us confine ourselves to the evidence that is available.

According to a media release issued by the NEC on Tuesday 4 August as reported in the Citizen newspaper:

“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,” said Magashule.

He said the NEC fully supported its president, who is also South Africa’s head of state, Cyril Ramaphosa’s decision to refer all allegations linked to the procurement of Covid-19 goods and services to the Special Investigative Unit (SIU).”

Unpacking the statement takes some effort, but the effort expended is perhaps worthwhile.

The NEC calls the shots from Luthuli House. It regards the politicians who represent the ANC as its “deployees”, which its deployment committees, led by deputy president DD Mabuza, deploys in various capacities at local, provincial and national levels. The NEC expects these deployees to do its bidding on pain of party disciplinary procedures against them. The use of the words “called upon” in the media release should be read to denote polite language for “instructed”.

The NEC’s reference to the “ANC-led government” is a reference to the national cabinet (all of whose members, except Patricia de Lille, are ANC deployees) as well as the members of the ANC who were placed by it high enough on the party lists to gain seats in the sixth parliament either in the National Assembly or the National Council of Provinces.

As the instruction to establish the desired entity is a matter for legislation both the executive branch of government (which usually initiates legislation in the form of bills it presents to parliament) and the legislative branch (which debates bills, engages in public participation processes and passes laws after possible amendment of the bills) will be involved.

So will the president who, once satisfied of their constitutionality, signs bills into law and promulgates them in the government gazette for public information and for implementation. It is initially for cabinet to deliberate upon the instruction to government contained in the NEC media release. The minister of justice has publicly recognised that this is the position.

The urgency aspect is also instructive. The NEC expects government to “urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption”.

It should not be forgotten that back in 1999, newly minted President Thabo Mbeki announced the decision to “urgently establish a special unit to deal with all national priority crime, including police corruption”. That decision led to the establishment of the Scorpions, a unit in the National Prosecuting Authority with prosecution led investigative capacity.

The Zuma tsunami of 2007 included the passing of a resolution at the ANC’s December Polokwane conference that the Scorpions be dissolved and that “members performing policing functions” should fall under the SAPS. Conference demanded that the relevant legislative changes should be “effected as a matter of urgency”.

The reference to “policing functions” is a reference to the investigative capacity given to the NPA in respect of “priority crimes” by the legislation that established the Scorpions. It was thought at the time of Mbeki that the constitutional admonishment that the NPA “carry out any necessary functions incidental to instituting criminal proceedings” enabled this step. Contradictorily, the Zuma era ushered in the notion that there should be “a single police service”, which made the establishment of the Scorpions unconstitutional.

Both notions were wrong in law. Be that as it may, the Mbeki majority saw the Scorpions established and the Zuma majority saw to their dissolution.

Gwede Mantashe, then Secretary General of the ANC openly acknowledged after the Polokwane conference that the motivation for dissolving the Scorpions was that ANC members under investigation needed to be protected against this intrusion. When the Travelgate scandal, in which travel privileges were abused to the tune of R18 million, broke in 2005 it was initially investigated by the police to little effect.

Then the dockets were handed to the Scorpions and, ere long, the culprits found themselves in the dock in the Cape High Court as it was then called. MPs, mostly from the ANC, entered into plea bargains that saved them their jobs, on condition that they paid back the money.

With the benefit of hindsight, it now apparent that saving Zuma’s political career and enabling his state capture project were the direct result of the disbanding of the Scorpions. Had the Scorpions survived the chances are that Zuma would not have found his way to the Union Buildings because he would have faced the trial now scheduled for hearing in the near future.

In the place of the Scorpions came the DPCI or Hawks, a police unit with little clout, expertise, capacity or even appetite for taking on politically exposed persons who were alleged to have committed any one of the priority crimes covered by their mandate.

Today the Hawks are seen as part of the nation’s problem with corruption, not part of the solution. The president has tried a “work around’ solution by unconstitutionally proclaiming the Investigative Directorate of the NPA. This unit is illegal for two reasons: it does investigative work which parliament has reserved for the Hawks and it is not adequately institutionally independent in that it serves at the pleasure of the president.

This brief history is the background against which the NEC of the ANC has now resolved that government “urgently establish a permanent multi-disciplinary agency to deal with all cases of white-collar crime, organised crime and corruption.”

It needs to be noted that the NEC has bucked the trend followed by both the Zuma and Ramaphosa administrations in calling for a single entity or “agency” to do the work of countering the corrupt. Zuma preferred the “Anti-Corruption Task Team” and Ramaphosa has veered between trying to rely, without success, on Hermione Cronje’s Investigative Directorate (which has yet to bag a “big fish”) and setting up Hubs and Fusion Centres with multiple agencies supposedly collaborating with each other. The NEC has wisely seen through these strategies as mere window dressing.

The various entities involved simply pass the buck to each other and nothing gets done. The woeful track record of the ACTT proves this assertion.

Furthermore, the NEC is right on the money, legally speaking, in insisting on a single agency. This aligns with the binding findings of the Constitutional Court in the Glenister litigation in which the structure and operations of the Hawks were successfully impugned for their lack of institutional independence that would be adequate to enable them to counter the corrupt effectively and efficiently as required by section 195(1)(b) of the Constitution.

If the Ramaphosa administration is going to implement the resolution of the NEC quoted above properly, then it will have to establish a single entity to tackle the corrupt among us. That entity, to be constitutionally compliant in the sense laid down by the courts in the Glenister cases will have to be independent (as the NEC expressly acknowledges by the use of the synonym “act without fear, favour or prejudice”).

It will also, to meet the main criteria laid down by the courts, need to be free of executive influence and interference, specialised and trained in the methods of countering corruption, properly resourced in a guaranteed fashion and it should also have that which the Scorpions did not have – secure tenure of office. 

The Scorpion’s existed as a mere creature of statute and could be disbanded by a simple majority in parliament. A majority the first Zuma administration was able to muster despite opposition from civil society and the main opposition parties represented in parliament. It is salutary to bear in mind that had the dissolution of the Scorpions required a special majority Zuma’s parliamentary caucus would not have won the day in the vote on the fate of the Scorpions.

The best way to protect the security of tenure of office of the body now desired in terms of the NEC resolution is to house it under Chapter Nine of the Constitution by making it a new institution under that chapter. Indeed, as the Constitution stands, it is the only way in which to do so. A mere act of parliament will render the new unit just as vulnerable to disbandment as the Scorpions, not the result now desired by the NEC on any sensible reading of its resolutions.

The support the NEC gives to the presidential decision to refer pandemic related corruption to the Special Investigation Unit (SIU) should be seen in its proper context. The SIU does not have any criminal law powers. It seeks to recover public funds and property misappropriated whether in tender processes which are irregular or otherwise.

The SIU does not do criminal investigations. Its procedure is to refer any criminality it comes across to the criminal justice administration for the purposes of criminal investigation by the Hawks and prosecution by the NPA. The fact that it took ten years to arraign Bosasa kingpins Agrizzi and Van Tonder for their capture of tenders issued by the correctional services department says all one needs to know about the interface between the SIU and the criminal justice administration.

It is clear from statements of the minister of justice that cabinet has yet to deliberate upon the resolution of the NEC quoted above. It behoves cabinet to give detailed and earnest consideration to the judgments in the Glenister cases. Cabinet also needs to recognise its solemn duty to implement the binding judgments on the issues involved, especially in complying with international obligations under the UN Convention against Corruption as well as the human rights aspects of the Glenister judgments.

Cabinet has as its disposal the draft legislation prepared by Accountability Now in 2012, in anticipation of the type of thinking in the ANC which is now in evidence in the NEC’s weekend resolution set out above.

In short: the multi-agency approach of government is off the table because both the courts and the NEC have spurned it for good reasons: it does not work in SA. 

The need to ensure the new entity required by the NEC is independent can be achieved  by insulating the anti-corruption entity from the influence and interference of politicians. This worthy and indeed necessary aim is best achieved via the use of Chapter Nine architecture. All Chapter Nine Institutions have constitutionally guaranteed independence.

Like the courts they are subject only to the law and the Constitution, “they must be impartial and exercise their powers and perform their functions without fear, favour or prejudice. Other organs of state … must assist and project these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions” as laid down expressly in section 181 of the Constitution.

When the NEC says “deal with … corruption” it clearly means prevent, combat, investigate and prosecute the corrupt. No institutions currently in existence, including the NPA, are up to the task at hand. The NEC recognises that a new broom is required to sweep clean.

Some cynical observers say this new stance of the NEC amounts to “turkeys voting for Xmas” and that the resolution should be regarded as a sham or mere political posturing with no serious intent to give effect to it by the actual establishment of the entity required.

We had all better hope that the cynics are wrong. It could be that the NEC has recognised that there will be no Xmas for it if the turkeys in the ranks of the ANC are not roasted soon. The levels of public anger and the contriteness expressed in the full media statement of the NEC are reasons for inferring that at long last the courts and the politicians are going to get onto the same page, the page written in the Glenister judgments, and end the culture of corruption with impunity that is still strangling the life out of the economy and the struggling citizens of the country.

The dramatic resolution of the NEC has been made not a moment too soon. It is fervently to be hoped that cabinet gets to work on implementing it as a matter of priority. The president has been told last year that Accountability Now is willing to “thuma mina”.

He has in the past expressed interest in the solution proposed in the draft legislation prepared by Accountability Now, calling the idea of a Chapter Nine Integrity Commission to investigate and prosecute the corrupt a “refreshing one”. He has not closed the door on his administration adopting the idea; his “not at this stage” response in June should move on to a “now at this stage” decision in the light of the seriousness of the problem in its covid-19 manifestations and because the existing criminal justice administration remains captured, hollowed out, infested with “saboteurs” and unable to self-correct any time soon as vividly illustrated by the inaction of leadership in the face of the damning report finalised last June concerning the skulduggery around the Cato Manor alleged death squad debacle.

The NEC is right: a new broom is urgently needed. Cabinet must deliver it. Eureka!

• Paul Hoffman SC is a director of Accountability Now. He was lead counsel in the Glenister litigation.