Paul Hoffman SC is a director of Accountability Now.
The trajectory of the country remains downward toward failure, but we are not there yet, and we don’t need to go there either. But it is hard to trust a government that allows widespread corruption with impunity to continue.
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We have had plague (Covid-19), pestilence (swarms of locusts) and now floods (in KZN), but politicians will tell you that the three main issues facing the country today are poverty, unemployment and inequality. All three are attributable, at least in part, to rampant serious corruption with impunity.
The loot extracted by the corrupt is usually public funds which could be better used to alleviate the plight of the poor than to line the pockets of the looters. The unemployment is because too little new investment occurs when investors are frightened off by the corrupt and the inequality is perpetuated when greed rather than public service is what actuates politicians, public servants and those who work in state-owned enterprises, not to mention their collaborators in private enterprise.
The lack of trust in governance is due to the dawning of the realisation in the public imagination that those in positions of power are not serving the public interest, instead they are abusing their positions for personal gain. This endemic activity is an abuse of public office, an abuse that is undermining the democratic project and rendering the electorate increasingly sceptical about the ability of the system to deliver on the lofty promises made to the people in the Bill of Rights.
The derisive and distrustful response of the public to the declaration of a state of disaster in KZN and the Eastern Cape following the recent flooding there is to be expected on any objective conspectus of the failing state in which South Africans find themselves.
What then, is a failed state?
To answer that question, here is a lightly edited revision of an extract from an article the author, in collaboration with Professor David Welsh, a political scientist, wrote in 2013:
“In its terminal form, a state fails when it implodes, leaving only a shell. Max Weber defined the state as the entity that possesses ‘a monopoly on the legitimate use of force’. This is a vital part of any definition of the state, but modern usage stretches the definition to incorporate the idea of sovereignty over a territory. Others insist that the idea of the state embodies a commitment as the ‘institutional representation of the people’s will’.
“The more limited notion of the state would exclude, as failed states, countries such as North Korea or Zimbabwe, where the state is intact, possesses a monopoly of force, but lacks the essential ingredient of legitimacy. Somalia is one of several cases where the central government has imploded and controls only a small part of the country.
“South Africa, the Zuma State Capture project notwithstanding, is far from such extreme situations. There is no threat to its territorial integrity, no threat of a violent overthrow of the government or even of a conflict that threatens to get out of hand. It enjoys democratic institutions (however poorly they perform), the rule of law and protected civil liberties.
“There are, however, some disquieting signs. State failure occurs along a continuum: dysfunctional institutions, popular protests (such as the regular service delivery protests in SA), illegal and often violent strikes and the evident growing alienation of young, urban dwellers, who face a lifetime of unemployment. Other symptoms will be obvious to anyone who studies the demographic landscape.
“It is generally reckoned that constitutions that survive for 20 years have put down roots that render them resistant to destruction. But there are exceptions. A danger South Africa faces is less the abolition of the Constitution than its being hollowed out, that is, its key (supposedly) independent institutions being staffed by politically ‘reliable’ people. The judiciary may be a prime candidate, followed by the public protector. We should never forget the wise warning in The Federalist Papers that a constitution is a ‘mere parchment barrier’.”
When we wrote these words the bulk of the wasted Zuma years were yet to come, he remained in office until 2018. Busisiwe Mkhwebane was not appointed (by Zuma) as Public Protector until October 2016. The Zuma incarceration inspired July 2021 insurrection is now part of our unexpected history.
The trajectory of the country remains downward toward failure, but we are not there yet, and we don’t need to go there either.
The task of rebuilding the trust of the public is the most urgent business facing our government. It is hard to trust a government that is allowing widespread corruption with impunity to continue. Corruption in the procurement of PPE is particularly vile and base — it puts the lives of healthcare workers, doctors and those in hospitals at risk. Corruption in the clean-up after the floods is widely anticipated and is likely to occur, given the track record of those involved in public procurement.
Corruption is a crime, but is not treated as criminal in SA. If there was any apprehension among the corrupt that they will be caught, investigated, prosecuted, tried and punished, there would be considerably less corruption in SA than the levels that have undermined the trust of the public and of possible investors in SA. The main factor keeping new investment out of SA is the high levels of corruption with impunity that undermine business confidence.
It ought then to be plain to those in Parliament and in the national Cabinet that the scourge of serious corruption needs to be addressed urgently and comprehensively.
The leadership of the ANC at Luthuli House knows this is so. As long ago as August 2020 it instructed Cabinet to establish a new corruption-busting entity as a matter of urgency. Nothing has been done to implement the instruction.
A year later Accountability Now produced draft legislation enabling such a body and a constitutional amendment to ensure its independence and security of tenure of office. The drafts have not been responded to by the parliamentary committees charged with justice and with constitutional review, nor has Cabinet given anything more than a formal acknowledgement of receipt.
The reforms contemplated align with both the thinking of the ANC and with the rulings of the Constitutional Court on the topic. The delay in processing them is arguably attributable to the political expediency of managing the warring factions in the ANC until the December 2022 elective conference. Politicians are putting their own interests in re-election ahead of those of the country. In so doing they are allowing corruption of the most serious kind to continue unabated and with impunity.
The devastation caused by the floods in KZN has prompted a phalanx of civil society organisations to lay charges of culpable homicide against the president and the relevant ministers, holding them accountable for the avoidable loss of lives. Janet Solomon of Oceans Not Oil, one of the complainants, is quoted as saying:
“The harms of this flood were the result of an uncaring, rotten, corrupt and failing government, at national, provincial and local government levels.”
The final report of the Zondo Commission is due at the end of April 2022; it is likely to make recommendations that chime with those of Accountability Now and with those the ANC wants as regards countering the corrupt.
Government needs to act now to stem the flood of corrupt activities in SA. To be seen to be doing so is step one in the long and arduous business of re-establishing the trust of the people in the government of the day. It is also the way forward to re-election in 2024. Further dithering and delaying will only chase voters into the arms of the opposition or into the wilderness in which no voting takes place and confidence in our democratic order is replaced by populism, anarchy and failure as a state.
All those who value living in a constitutional democracy under the rule of law should use their influence to persuade government to reform the justice administration so as to enable it to investigate and prosecute serious corruption with efficiency and effectiveness.
It may even become necessary for civil society to return to the Constitutional Court to seek proper enforcement of its judgments on this topic. It ought not to come to this, not if the government is properly advised on its manifest failure to implement the criteria laid down by the highest court in the land, in binding fashion, for the constitutionally compliant machinery of state required, yet still so conspicuously absent in South Africa since Zuma rose to power. DM