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Reboot required for countering State Capture

By Paul Hoffmann*

In the midst of the maelstrom of evidence tumbling out of the ANC’s dirty linen basket at the State Capture Commission (SCC), albeit sullied by “stalingrading” and apparent errors in the SCC’s stuttering administration, it is timely to step back and consider the trajectory of the SCC and the country. The SCC has implicitly rejected entreaties that it publish an interim report and is unlikely to report finally before next year. That may be too late if the credible prognostications of the obviously well-qualified and superbly informed, but anonymous, “Professor” Balthazar are considered. The “professor” believes that constitutionalism is done for in SA if our trajectory is not changed for the better this year.

Paul Hoffman Accountability Now
Paul Hoffman

Countering State Capture effectively and efficiently is vital to the survival of constitutional democracy under the rule of law in SA. State Capture threatens the success of our developmental state that aspires to put in place governance that respects human dignity, promotes the achievement of equality and ensures the enjoyment of the various freedoms guaranteed to all in our Bill of Rights. Healthy transformative measures are needed to bring about that happy state, openly, accountably and responsively. While the spectre of State Capture lingers and the consequences of efforts at capture remain unaddressed, the future success of the country remains in jeopardy.

State capture is a term that was devised to describe the repurposing of governance in Russia so as to serve the agendas of the oligarchs who filled the power vacuum after the USSR was disbanded. A common definition is:

State capture is a type of systemic political corruption in which private interests significantly influence a state’s decision-making processes to their own advantage.

While it is stoutly disputed that the Zuma, Gupta and Watson families were involved in the capture of the SA state, the repurposing of governance to serve the interests of the ANC is surely proven and needs to be addressed. Examples abound. As Stephen Grootes has observed:

“The electricity crisis is entirely the fault of the ANC, no one else. For the moment it appears, there is still no strong enough desire to fix it. If that doesn’t change soonest, life in South Africa will turn dramatically worse.”

It is well-documented that Hitachi, which partnered illegally with the ANC to tender for the building of Eskom’s gigantic boilers at the Medupi power station, has been heavily fined in the USA for doing so. The ANC made billions of rand on the deal, funds that would come in handy for keeping the lights on now, but the ANC makes no effort to “pay back the money” and continues to enjoy complete impunity. The Hitachi Power Africa deal, in which the ANC participated via its investment entity, Chancellor House, has received no public scrutiny at the SCC.

Andrew Feinstein, a former ANC MP, has credibly revealed that the 1999 ANC election campaign was funded in part by the proceeds of the ill-starred arms deals that the ANC government negotiated with various European arms dealers. He was precluded from giving evidence at the Seriti commission of inquiry and his evidence has not featured yet at the SCC. Using ill-gotten public money to fund an election campaign of a private political party is a prime example of state capture. The exculpatory findings of the Seriti Commission have been set aside on judicial review, very properly so, but both the state and the SCC remain passive in the face of this development.

The ANC’s pursuit of its national democratic revolution (NDR) is central to the malaise in the country. The (unconstitutional and illegal) underlying idea behind the revolution is to secure hegemonic control of all the levers of power in the country. This striving goes way beyond the public administration and the state owned enterprises. The way in which the idea finds expression is through the work of cadre deployment committees at ANC headquarters in Luthuli House. The deputy president of the ANC (since 1994 also deputy president of the country) chairs cadre deployment deliberations for the purpose of rewarding the loyalty of ANC cadres and for securing the hegemonic control desired. This process is carried out irrespective of whether the national Constitution and law require independence such as in institutions like the judiciary, the NPA, the Chapter Nine organisations and the Hawks. Indeed, independence is the antithesis of the hegemony sought by the NDR.

After the courts, predictably so, ruled that cadre deployment in the public administration is illegal and unconstitutional, the stratagem of making a “recommendation” by Luthuli House was resorted to in order to thwart attacks on its illegal deployment of its loyal cadres. No one is fooled by this stunt; the practice of cadre deployment in the public administration and state owned enterprises accounts for the bloated payrolls in both and continues despite its ill-effects and illegality. Often, consultants are employed to do the work of the unqualified or unsuitable cadres, who are either idle or keep busy with ANC work instead of their jobs. This “work around” strategy is an unnecessary expense and flies in the face of the constitutional prescript that good human-resource management and career development practices, to maximise human potential, must be cultivated. The engagement of consultants at great expense can hardly be regarded as the type of public procurement which must, constitutionally so, be “in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.” Appointments based on the merit of candidates do not appear to feature in the thinking of the ANC. It allows its own rules and ideals to trump those of the Constitution and the law. Needless to say, conduct inconsistent with the Constitution is invalid.

When he was deputy president to Jacob Zuma, current president Cyril Ramaphosa chaired the Eskom “war room” from 2015. This experience has not enabled him to predict outages accurately nor has it enhanced Eskom’s ability to keep the lights operating uninterruptedly.

In December 2017, and by a margin of a mere 179 votes, Ramaphosa was elected to lead the ANC; he became president of the country after Jacob Zuma stepped down in February 2018. To secure that slim majority, Ramaphosa had to do a deal with DD Mabuza, a deal which has seen the latter rise to the deputy presidency of the ANC and the country, a mere heartbeat away from the top. Readers of the New York Times, not yet sued for publishing seriously defamatory allegations about Mabuza, will surely have raised their eyebrows at this startlingly opportunistic promotion.

Ramaphosa has correctly identified the need to counter corruption and to recover the loot from the corrupt as priorities, but he has not yet abandoned the floundering NDR or even attempted to lead the ANC in that direction. While his accurate description of what needs to be done cannot be faulted, his vagueness on how it needs to be done is vexing.

The structural and operational capacity of the criminal justice administration bequeathed him by the Zuma administration is not up to any of its anti-corruption tasks. The loot remains in the hands of the corrupt, and the corrupt remain at large. The illegally deployed cadres continue to transact illegally and appear to enjoy “royal game” status that ensures them impunity.

Recently Patricia de Lille, the only non-ANC cabinet member, uncovered nearly 4,000 public servants illegally transacting business with the state. Rest assured that, on past form, the criminal justice administration will do nothing about her discovery.

Why this state of affairs persists, more than two years after the ANC gave Ramaphosa a mandate to lead it, demands reasonable and accountable explanations from him and all in his cabinet.

If a proper analysis of the aims of the NDR reveals that it is nothing more than a formula for state capture, then the criminal justice administration, ought to be addressing the cause of the problem rather than its symptoms.

It is now plain to any sentient observer that the Zuma era shenanigans were enabled by the resolution taken in Polokwane in December 2007 to dissolve the Scorpions and to redeploy its investigators in the SAPS.

The Scorpions were an independent specialised directorate of the NPA tasked with countering corruption. Using the prosecutor-led troika system within an organisation constitutionally enjoined to act “without fear, favour or prejudice” they enjoyed spectacular successes, including the prosecution of Travelgate fraudsters, most of whom were ANC MPs, ANC Chief Whip Tony Yengeni and Jackie Selebi, chief of police and head of Interpol. In addition, a great deal of loot was seized and recovered by the Scorpions working with the Assets Forfeiture Unit. None of these activities endeared the Scorpions to the ANC.

The way in which the ANC hit back at the Scorpions was to use its fiercely resisted parliamentary majority to replace the Scorpions with the Hawks, an undistinguished police unit that has been an abject failure, despite repeated attempts, via public interest litigation, to get the Hawks to straighten up and fly right.

The upshot of the litigation, which ended in November 2014 with a split decision of the Constitutional Court, is that any failure to counter corruption is regarded as a human rights issue in SA and as a breach of the international obligations assumed by the country as regards the maintenance of adequately independent anti-corruption machinery of state.

In practice and in law, the task of investigating corruption resides with the Hawks, while its prosecution is the function of the NPA. The investigative capacity of the NPA as regards corruption was ended with the dissolution of the Scorpions by act of parliament and that position still obtains. The courts have insisted on the independence of the anti-corruption machinery of state, but the Hawks have remained firmly under the control of the police ministry. The law, as it now stands, is that the anti-corruption machinery of state should be comprised of well-trained specialists who are dedicated to anti-corruption work. They must be properly resourced and secure in their tenure of office as well as adequately independent of political influence and interference.

Ramaphosa has attempted a “work-around” solution to the manifest short-comings of the Hawks by the creation of the Investigative Directorate (ID) in the NPA to deal with matters involving State Capture. This was done by presidential proclamation. The significance of this step is that the ID serves at the pleasure of the president. The fate of the Scorpions awaits it if investigations it makes (actually the legal preserve of the Hawks) displease the president. The causes of State Capture, which the ID is required to investigate, are surely to be found in the activities of the ANC, which the president leads. The ID is an unconstitutional structure, given the architecture put in place as a consequence of the disbanding of the Scorpions and given the court’s insistence on independence from political influence.

Both the NPA and the Hawks have been partially captured themselves by the deployment to their ranks of cadres loyal to the agenda of the Zuma faction of the ANC now openly led by Ace Magashule, craftily supported by DD Mabuza and Zuma acolyte, Jessie Duarte; half of the top six of the ANC. The ANC in turn remains hell bent on pursuing its illegal NDR after 25 years in power. It is a matter for great regret that it did not heed the calls by the late Professor Kader Asmal for it to abandon the NDR.

The country does not have the time needed to purge its anti-corruption machinery of those loyal to the NDR. The state will fail long before that noble objective can be achieved. Consider how long it took to relieve the criminal justice administration of the services of Nomgcobo Jiba and Lawrence Mwrebi; look how hard those promoted in the last days of the Zuma administration are clinging to their new positions.

The new leaders of the NPA and the Hawks have frankly and publicly acknowledged that those they lead do not have the wherewithal to tackle complex corruption cases. There are also currently too few properly qualified persons and insufficient resources in place to be equal to the mammoth task at hand. The investigators with the Scorpions did not join the police and many of the prosecutorial Scorpions also left public service for greener pastures. The NPA stopped recruiting in 2015 and the Hawks have numerous vacancies, dilapidated offices and low morale. They simply don’t turn up to the deliberations of those tasked with preparing the National Anti-Corruption Strategy by March or they dispatch a mute and minor underling to make notes.

A conspectus of the relevant legislation, the findings of the courts and the situation on the ground in the criminal justice administration suggests that the best and quickest way to address rampant corruption, before the malaise it causes “graduates into something terminal” (as the Chief Justice put it in 2014) is to create a new one stop institution that complies, as it should, with the prescripts laid down by the courts and the law both in its operations and in its structure. Its creation could obviate resistance to recruitment of those with the skills so sorely needed.

These aims are best achieved by the establishment of an Integrity Commission as a new Chapter Nine Institution to complement the work and mandates of the Auditor General and the Public Protector.

If the political will to take this simple step cannot be generated, the only remaining option for those who are not prepared idly to watch the completing of the ANC led State Capture project, is to litigate the non-compliance of the state with the relief ordered in the litigation concerning the anti-corruption machinery of state.

The Constitutional Court could be asked to revisit its majority decision to allow the Hawks to be located in the SAPS and claims can be formulated to insist that the criteria which it has laid down in binding fashion be implemented by the state. Its finding in 2014 that “corruption is rife” has met with a uniformly plea bargained response from the NPA in respect of corruption convictions involving in excess of R5m, which has been reported by the NPA as:

YearConvictions
2013/201434
2014/201523
2015/201624
2016/201729
2017/201839
2018/201917

The looting of state owned enterprises and the rape of the public procurement budgets of the state appear to have passed the criminal justice administration by, which is an intolerable situation that requires urgent attention.

Structural and operational reforms to undo the damage wrought by the dissolution of the Scorpions and the partial capture of the criminal justice administration cannot await the outcome and recommendations of the SCC. Its findings of fact bind no one and its recommendations cannot be enforced against the government. The envisaged report of the SCC is more than a year away. That amount of time is not available to the country, according to “Professor” Balthazar, if it is to be saved from the ravages of the corrupt.

Since March 2019, the president has been “mulling over” the idea of an Integrity Commission under Chapter Nine, after it was put to him by the IFP at question time in parliament that creating one is the solution to the problem.

The state of the nation address next month would be a good occasion for him to announce the outcome of his mulling. If a positive announcement is not made, the members of the “I’m staying” movement (and others who seek peace, progress and prosperity) would do well to crowd-fund the litigation necessary to save the country from the ravages of capture. In the meantime pressure to abandon the NDR and to bring about the structural reforms necessary to restore the criminal justice administration to effectiveness and efficiency must be relentless. The future of the country as a constitutional democracy is at stake.

  • Paul Hoffman is a director of Accountability Now. 
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