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Re-establishing a Rechtsstaat in SA

The work of re-establishing a Rechtsstaat in South Africa

Irrespective of exactly when Jacob Zuma’s star wanes and regardless of who succeeds him, the dearth of leadership with integrity that his two terms at the helm of the nation has engendered will leave an unwanted legacy that will require a great deal of effort to erase and correct.

Leaders in politics ought to be elected on the basis of their willingness to serve the people who vote for them (and those who vote against them) in a manner which advances the constitutional project on which the nation embarked with high hopes in 1994. This endeavour involves the state in the business of respecting, protecting, promoting and fulfilling the rights in the Bill of Rights which is Chapter Two of the Constitution, our supreme law. The work required ought to be transparently, accountably and responsively carried out according to a high ethical standard. That is what the Constitution prescribes.

On Zuma’s watch politics and political power has been used to build a huge patronage network involving those elected to political office, those appointed in the public administration and state owned enterprises, those who do business with the state and the “politically well connected” in a manner that does not comply with the rules for supplying goods and services to the state. Indeed, a procurement system that is fair, equitable, transparent, cost effective and competitive is the anti-thesis of the conduct of too many of those involved in the management of public money, whether for the state or for state owned enterprises.

The problem with patronage and its bed-fellows cronyism, nepotism and careerism is that they are all manifestations of the type of corrupt activities which are frowned upon so seriously in the legislation, put in place just after the turn of the century, that a minimum sentence of 15 years is mandatory for those found guilty. According to a report to parliament by our beleaguered National Director of Public Prosecutions all of 151 corrupt government officials have been convicted in the last two years.

This conviction rate needs to be contrasted with the backlog of cases of corruption in the procurement system accumulated by the National Prosecuting Authority and awaiting appropriate attention. According to Justice Dennis Davis, wearing his Tax Commissioner hat, that backlog is now around 3000 cases. Simple arithmetic reveals that at the current rate it will take 20 years to work off the backlog. While impunity prevails the culture of corrupt activity grows as the morality of many involved is undermined by the availability of easy pickings that go unnoticed, unprosecuted and unpunished.

The damage that has been done to the prosecution service due to the desire of Zuma to protect himself and his chosen ones against prosecution is both severe and likely to be long-lasting.

As for the investigation of corruption as a crime: this task is meant to be the preserve of a single specialised unit, especially trained to keep ahead of the wiles of the corrupt, independent in its structure and functioning with properly resourced staff who enjoy security of tenure of office. These requirements are a summary of the criteria laid down by the Constitutional Court in litigation impugning the adequacy and constitutionality of the Hawks as our anti-corruption machinery of state.

The executive has sought to dilute such theoretical power as the Hawks may have by creating an “Anti-corruption task team” which is described as dysfunctional by those who make a study of these matters. The leadership of the Hawks has also been shredded by the hounding out of office of those who show signs of independence and their replacement with malleable and executive-minded functionaries. This is not a propitious development in times of looming state capture, threatened economic downgrades by ratings agencies and even the possibility of failure as a state.

Whoever wishes to restore the values of the Constitution and to replace the current mess with a restored Rechtsstaat is going to have to have the machinery necessary to clean up efficiently and effectively.

Since 2011 the suggestion has been made by Accountability Now that the best way in which to give effect to the binding requirements of the Constitutional Court in the Glenister litigation is to establish an Integrity Commission under Chapter Nine of the Constitution.

The existing Chapter Nine Institutions include the Auditor General and the Public Protector. They are complemented by the Human Rights Commission, the Gender Commission and others. Their purpose is to support constitutional democracy and to strengthen it by performing the mandates set out for each of them.

A lacuna exists between the auditing functions of the Auditor General, who audits public accounts, and the Public Protector whose primary mandate is to investigate, report on and take appropriate remedial steps in respect of maladministration in the affairs of state and the public administration. Neither deals with the private sector, yet the private sector is the source of much of the corruption at large in the country at present and indeed since the inception of the new order. Anything from the arms deals to the nuclear build programme, Hitachi and the ANC in business together with Eskom and those tall trains all spring to mind readily.

The proposed Integrity Commission (often called an Anti-Corruption Commission elsewhere in Africa) will neatly slot in between the Auditor General (who is the source of the 3000 complaints awaiting attention at the NPA) and the Public Protector, who has no jurisdiction over the private sector but frequently encounters corruption in her work. The mandate of the Integrity Commission will be to prevent, combat, investigate and prosecute serious corruption whether in the private or the public sector. Its leadership and personnel with be clothed with all the criteria specified by the Constitutional Court and the work ethic required will see off the backlog of 3000 cases in short order.

Without an Integrity Commission the leadership that succeeds Zuma will find itself in a “business as usual” situation in which institutions that are meant to function independently, such as the NPA and the Hawks, will remain in the thrall of the corrupt, too paralysed to prosecute or investigate their cronies in the state, the state owned enterprises and the private sector.

The idea of introducing an Integrity Commission is currently under consideration by the Constitutional Review Committee of the National Assembly. It heard submissions on behalf of Accountability Now on 15 April 2016 and has been given draft legislation and a draft of the necessary constitutional amendment that will enable parliament to pass the laws required to make the Integrity Commission come to life. With Vusi Pikoli or Thuli Madonsela or both at the helm, such a body could restore the trajectory of the country to one that sees peace, progress and prosperity for all.

The vision of the founders of the new constitutional order cannot be realised while corruption reigns supreme. In the words of the Chief Justice, in the majority Glenister judgment of November 2014:

[1] 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.

[2] 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 best way in which to avoid what the Chief Justice delicately calls “something terminal” is to create the best practice implementation of the binding judgements of his court. The Hawks have proved less than effective and efficient as the recent experiences of the Minister of Finance reveal. The Integrity Commission is the best practice option. The idea is right and its time is now. The country deserves nothing less.

Paul Hoffman SC is a director of Accountability Now and is author of the new book “Confronting the Corrupt” published by Tafelberg.

Article published in Politicsweb 1st November 2016

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