By Paul Hoffman
16 Oct 2022
The response of Cabinet to the recommendations made in the six tranches of the report of the State Capture Commission of Inquiry is likely to be announced in parliament by the President before the end of the month of October 2022.
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Those tasked with preparing the response will be conscious of the need for it to be constitutionally compliant. Any conduct by government that is inconsistent with the Constitution is invalid. The importance of a valid response to the Chief Justice’s recommendations cannot be sufficiently stressed. The future trajectory of the country is at stake.
There are four areas that are critical, they will attract the most attention and require thoughtful formulation of government’s response:
- Reform of the criminal justice administration to make it fit for the purpose of preventing State Capture’s recurrence and for addressing the recovery of loot and punishment of transgressors involved in the crimes, corruption and other activities that went to create the phenomenon of State Capture in SA;
- Reform of the practices in the public administration and state owned enterprises that amount to the illegal and unconstitutional deployment of cadres of the national democratic revolution to positions of power and influence in the municipalities, provinces and all other organs of state in the land in their quest for hegemonic control of all the levers of power in society;
- Attention to the need to reform the electoral system at national and provincial levels to improve the accountability, efficiency and effectiveness of government;
- Alleviation of the lot of the whistle-blowers of SA without whom State Capture would still be a nasty secret.
State Capture involves the repurposing of the state to serve the nefarious aims of small groups who see our public coffers as a treasure trove that they can abuse to give expression to their greed and lust for power. The criminal justice administration needs to be alert to these tendencies, and equipped to counter them. That this is not currently the case is the fault of the national government at both legislative and executive levels.
As long ago as March 2011 the Constitutional Court ordered Parliament to pass remedial legislation that would render the state capable of efficiently and effectively countering corruption. At the time the Zuma administration was new, in full control, and it had little appetite for implementing the binding criteria set by the Constitutional Court. Zuma had engineered the dissolution of the Scorpions as a preliminary step in his own State Capture project. He regarded, and still regards, himself as above the Constitution and the law. He favours parliamentary democracy over constitutional democracy and believes that the majority has more rights than the minority. While he is not averse to invoking his constitutional rights to avoid the consequences of his own criminal activities, he puts the ANC ahead of the country in his personal world view. He sees himself as serving his version of the national democratic revolution via the RET faction of the ANC and has made himself available to chair the party.
The response of the Ramaphosa administration to the Zondo recommendations concerning the reform of the criminal justice administration, has to shed the baggage of the Zuma era described above and be meticulously compliant with the binding rulings of the courts as they apply to the structure and operations of the criminal justice administration. This will of necessity involve addressing the 10-year backlog of corruption prosecutions and the lack of capacity, necessary skills and resources in evidence at present. The need for radical reform is apparent. A submission to Parliament presented in writing in August 2022 and draft remedial legislation presented to government in August 2021 (both here: Submission to the Constitutional Review Committee – Accountability) need to be considered as a suggested “best practice” means of reform of the criminal justice administration.
On the thorny topic of cadre deployment, this matter is already the subject of pending litigation brought by the DA against the ANC. The application is intended to bring an end to cadre deployment in organs of state and state-owned enterprises. Cabinet will have to consider the judicial precedent on the topic that in effect renders the recommendation of the state capture commission (SCC), that cadre deployment be scrapped, binding on the state. As cadre deployment has been identified as a source of State Capture because the cadres serve the revolution rather than the public of SA, it will not do to attempt to persist in this pernicious practice that has done so much damage to the ability of the state to respect, protect, promote and fulfil the human rights guaranteed to all in the Bill of Rights. A bold move to end cadre deployment is the appropriate response by government.
As regards accountability, a foundational value in the new SA, the inability of Parliament to exercise proper oversight over the executive and to monitor the constitutionally compliant implementation of legislation passed by it needs to be addressed. In essence, the problem is that parliamentarians feel beholden to party bosses, not to the people who elected them. This unfortunate state of affairs is a by-product of the “across the board” proportional representation system in place at national and provincial levels. The issues were examined by the Van Zyl Slabbert Commission before the Zuma era and need to be re-examined now, at what could be the dawn of the coalition era in the politics of SA. The DA has made some suggestions (DA’s 5-point plan to stabilise coalitions ahead of 2024 – John Steenhuisen – DOCUMENTS | Politicsweb) which could be debated when the recommendations of the Van Zyl Slabbert Commission are revisited, as they should be. It needs to be recognised that the “democratic centralism” that Ramaphosa described so eloquently during his evidence before the SCC is itself not consistent with the Constitution and needs to be abandoned by the ANC and all other parties that subscribe to the unconstitutional notion of “democratic centralism”. Ours is a constitutional democracy under the rule of law in which a multiparty system of open, accountable and responsive governance is required by the Constitution itself.
Finally, government needs to act on its duty to protect the human dignity and the bodily and psychological integrity of our whistle-blowers whose rights to fair labour practices are under constant attack. A new legislative scheme is in the works for 2023, but in the meantime, the creation of an informal office for whistle-blowers is urgently needed. This ombudsman could be a retired judge with other retired judges situated at the seat of each High Court in the country. The function of the ombudsman is essentially to protect the identity of whistle-blowers who approach her or him until it is established via the ombudsman, who keeps the identity of the whistle-blower confidential, that the existing legal protections available should be triggered because the information made available is reliable and could lead to a conviction in a criminal case.
There is precedent for such a system that is described in “Countering the Corrupt” on page 87 (Countering the corrupt – Accountability). Its informality could bring relief to our precious but endangered whistle-blowers while a new legislated system is under construction. The retired judges of SA are a national treasure and their services are underutilised by the state. Acting as an ombud for whistle-blowers is a form of public service worthy of consideration. Without whistle-blowing activities and investigative journalism of great bravery there would not have been a State Capture Inquiry. Adequate protection of whistle-blowers has the added advantage of serving as a deterrent to those contemplating corrupt activities.
If the responses of Cabinet on the four critical issues listed above are inadequate then it is unlikely that responses on other topics covered by the Zondo recommendations will be appropriate to the needs of the country as it faces the prospect of being greylisted. This fate is likely because of the inadequacy of its criminal justice administration and its inability to enforce laws intended to curb money laundering and terrorism financing. Greylisting does not have to be inevitable if government displays the political will to beef up law enforcement against the corrupt. It can do so by considering the suggestions made by Accountability Now as the best-practice means of enforcing the judgments that are already binding on government. To decline to do so invites further public interest litigation on the topic. The declination will also be likely to trigger greylisting, to the detriment of the poor, the unemployed and those who are already facing starvation in SA. DM