Opinionista • Paul Hoffman • 21 September 2020
It seems that the ANC National Executive Committee (NEC) has learnt from the missteps taken at Polokwane in 2007 in relation to dissolving the Scorpions and to electing and protecting Jacob Zuma. The NEC’s commitment to the idea that corruption-busters must be given the space to operate without fear, favour or prejudice aligns with the Constitution, the law and the binding judicial precedents set in the Glenister litigation.
There has been an exchange in the columns of Daily Maverick (and in person too) between Stephen Grootes and Yunus Carrim, a 40-year veteran of the ANC, former minister of communications and former chair of the Justice Portfolio Committee of the National Assembly at the time of the dissolution of the Scorpions (the links to the Grootes piece and to Part One of Carrim’s reply are contained in Part Two of his reply here).
The arguments put forward by Carrim in which he denies that the dissolution of the Scorpions should weigh heavily upon the conscience of the ANC are not convincing and require some interrogation. They do not accord with contemporaneous explanations for taking the resolution that was put forward on behalf of the ANC.
While freedom of conscience is a guaranteed right in SA, the more general meaning of “conscience” given by the Concise Oxford Dictionary as “a moral sense of right and wrong” or “an inner feeling as to the goodness or otherwise of one’s behaviour” is apposite when considering the allegation by Grootes that the disbanding of the Scorpions should weigh on the collective conscience of the ANC.
The Polokwane resolution taken in December 2007 to dissolve the Scorpions urgently and to redeploy its investigators in the police service is one that needs to be placed in its historical context. The most relevant features of that context are:
- Jacob Zuma was dismissed as deputy president of the country (but not of the ANC) in 2005 after his financial adviser, Schabir Shaik, was found guilty of corrupting him and was sentenced to 15 years in prison;
- Vusi Pikoli, National Director of Public Prosecutions, was under suspension by President Thabo Mbeki for prosecuting Jackie Selebi, a Mbeki insider who was chief of police in SA and head of Interpol;
- The inherent (all acting appointees come under pressure to support those who have the power to appoint them permanently) and actual weakness of the acting appointee serving in place of Pikoli was ripe for exploitation by the unscrupulous;
- The Scorpions were investigating Jacob Zuma on more than 700 counts of corruption, money laundering, racketeering and fraud. Charging him was imminent and unavoidable, given the conviction of Shaik;
- The Zuma “tsunami” (a description coined by Zwelinzima Vavi) was sweeping him to power in the ANC and to candidacy for presidential honours in the 2009 general elections in SA;
- That candidacy would be prejudiced or even prevented if the Scorpions investigation were to lead to a criminal trial: it is impossible to occupy the dock in court for a long complex trial and the west wing of the Union Buildings simultaneously;
- Cosatu and the SACP had both decided to support the Zuma candidacy at Polokwane in the belief that he would be more malleable to their vision of the future of SA than Mbeki (how wrong they were is eloquently demonstrated by Vavi, who later, much later, called the decision to vote for Zuma the “greatest mistake in history”);
- Zuma was faced with a stark choice: presidential office or a long trial, possibly followed by a long prison sentence; and
- Zuma had worked hard at grass-roots level in the ANC branches to gather popular support for his “100% Zuluboy” campaign, in which he managed to turn his successful defence of a rape charge against him into a campaigning tool. The “victim card” is still often played by him and his supporters.
All of these factors weighed heavily upon the delegates who supported the resolution to disband the Scorpions. They were prepared to turn a blind eye to the holes in the defences put up by Zuma in his criminal cases. As a matter of conscience, should they have supported an old man who admitted to having unprotected sex with a young woman less than half his age, who was, to his knowledge, HIV positive? A woman who happened to be the daughter of his late wartime friend, comrade and protector as well as his vulnerable house guest, one who called him “uncle”? A married man, who, to protect himself, his many wives and lovers against the risk of infection, took that ridiculous precautionary measure that has left him with a thoroughly deserved shower head in Zapiro’s cartoons? Should they have supported a man who is now facing criminal charges arising from the same factual matrix that saw his own financial adviser jailed before Polokwane for corrupting him?
The contemporaneous explanation given by the then secretary-general of the ANC, Gwede Mantashe, for disbanding the Scorpions was less detailed and more direct than that now given by Carrim. Asked by the leader of the Opposition to account for the resolution taken at Polokwane he explained that:
- Firstly, the Scorpions were “a political unit made up of apartheid security branch members who treated the ANC like the enemy”;
- Secondly, the criminal investigation of Zuma was “an abuse of power”;
- Thirdly, as majority party in Parliament, the ANC would ensure that its Polokwane resolution was implemented; and
- Last, but not least, the ANC wanted the Scorpions disbanded because they were “prosecuting ANC leaders”.
The words in quotes, above, placed in the mouth of Mantashe, are those of Helen Zille, who deposed an affidavit in the first round of the Glenister litigation setting out the explanations given to her by Mantashe. Her version was never disputed at any stage in litigation that ended in the Constitutional Court on three separate occasions between 2008 and 2014, now called “the Glenister trilogy”.
With the benefit of hindsight available in 2020, it is plain that the last reason given by Mantashe is what enabled the Zuma-era State Capture project to thrive with impunity in the absence of effective and efficient anti-corruption machinery of state. The obvious limitations of the Hawks were exacerbated by their knowledge of the fate of the Scorpions. To investigate leaders of the ANC would be a career limiting move. Functioning under the control of dubious successive ministers of police did not help the Hawks to function without fear, favour or prejudice, as promised by their incoming leadership and as required by the courts in the Glenister trilogy. Blaming the Hawks for their shortcomings is to indulge in passing the buck, a well-known political pastime that does Carrim no credit.
It should be noted that the rule of law has survived in SA to the extent that Selebi was convicted for his corruption and Pikoli (later dismissed as National Director of Public Prosecutions) won a good settlement in his court case in which he attacked the legality of his dismissal and today he works in the Department of Public Service and Administration. Zuma is now, somewhat belatedly, facing the charges that were swirling around his head at Polokwane, having had his term of office ignominiously and prematurely terminated by the same ANC that was so ill-advised as to turn a blind eye to his known and manifest shortcomings as a man and as a leader.
It is now becoming increasingly topical to re-examine the conscience of the ANC. Its NEC passed an urgent resolution during the first weekend of August. It is reported in the press as follows:
“The NEC called upon the ANC-led government to urgently establish a permanent multidisciplinary 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.”
This political directive gives clear impetus on the way forward in relation to countering corruption: firstly, the matter is rightly regarded as urgent; secondly, the long debate concerning the use of multiple agencies vs the single permanent agency approach is put to bed; thirdly, the need for independence in anti-corruption work is acknowledged, having been smothered in the Zuma era, and fourthly, a permanent agency is required, not one dependent upon the whim of the executive and also not one that could in the future be easily closed down by a simple majority in Parliament, which was the unfortunate fate of the Scorpions.
It seems the NEC has learnt from the missteps taken at Polokwane in 2007 (both in relation to urgently dissolving the Scorpions and in relation to electing and protecting Zuma). The NEC’s commitment to the idea that corruption-busters must be given the space to operate without fear, favour or prejudice aligns with the Constitution, the law and the binding judicial precedents set in the Glenister litigation. It serves to undo some of the damage done by replacing the Scorpions with the Hawks.
While much encouragement can be drawn from the resolution, the silence about the steps taken towards its implementation is both too long and worryingly deafening. No word has emerged from the Cabinet; the minister of justice is taciturn, his opposite number in the police ministry is quiet as the grave. The president himself is still stuck in the past; he sings the praises of fusion centres and hubs which are exactly what the NEC does not want when it comes to dealing with the corrupt.
Has the warm welcome extended to the NEC resolution by civil society organisations, leading lawyers, the Archbishop of Cape Town and the former public protector, Thuli Madonsela, spooked the crooks in the ANC into thwarting the processing of the urgent resolution? One hopes not, but it would be good to know what is being done about it within the ranks of ANC leadership both within and outside of Cabinet.
The rules according to which the ANC operates, as set out in the ANC constitution, turn the organisation against activities that are unethical or immoral. The mere potential of reputational harm to the ANC is sufficient to trigger the integrity preservation mechanisms of the ANC. It is surely not proper for the Cabinet to give the appearance of ignoring an urgent and critically important resolution of the NEC. Somebody in the ANC must surely have a bad conscience about the lack of publicly known progress on the implementation of the resolution.
As an economic recovery plan is currently under preparation, it is germane to note that economic recovery is a function of business confidence and public trust in government. Both have been severely undermined by the ravages of the pandemic and by the devastation wrought during the heyday of the State Capture project of the Zuma era. Economic growth is unattainable unless accompanied by steps effected to boost confidence and nurture trust. There is no better way to do so than to announce what steps have been and are going to be taken to implement the resolution of the NEC regarding the reform of the criminal justice administration urgently. Without swift establishment of the new unit ordered up by the NEC, the economic recovery plan is doomed before it is announced. DM