Opinionista • Paul Hoffman • 10 August 2021

Small incremental steps are all very well, but perhaps the time is ripe for big, game-changing strides. The R1.5-trillion loot should be recovered urgently from those who participated in State Capture, including the banks, the accountants and the lawyers who advised on the nefarious schemes that saw Treasury bled dry by the corrupt.

On 4 August 2021, JP Landman, one of the doyens of political analysis in South Africa, entertained the members of the Cape Town Press Club on the topic of “The three timelines in the Ramaphosa presidency”. The event was sponsored by the Konrad Adenauer Stiftung and is available here.

Landman identified three themes for his address which he pithily described as “corruption, economy and the ANC”. His analysis suggests that the President is engaged in a process of logical incrementalism that will pull South Africa back from the brink of failure as a state and the ANC from factional disintegration. He went so far as to suggest that, as the dust of the July looting settles, there are no factions left in the ANC.

But the demands of the Radical Economic Transformation (RET) faction, led by Carl Niehaus and Andile Lungisa, sent to Luthuli House on 5 August and which include an embryonic complaint to the International Criminal Court concerning the alleged crimes against humanity and genocide perpetrated on Ramaphosa’s watch, belie Landman’s claim that factionalism is history.

Logical incrementalism is a term used by scenario planners and analysts. It may be defined as a normative approach to strategic planning in organisations that combines elements of the classic, formal strategic planning process with the power-behavioural perspective; it also embeds the emergent processes of strategy formation that have been observed in organisations.

Incrementalism itself is a method of working by adding to a project using many small incremental changes instead of a few (extensively planned) large jumps. In public policy, incrementalism is the method of change by which many small policy changes are enacted over time to create a larger, broad-based policy change.

The political and economic aspects of what some describe as the dithering and egg dancing that characterise the Ramaphosa approach are for others to pick over; it is the urgency of the challenges of corruption to South Africa today that requires immediate attention.

Applying logical incrementalism to the problem of corruption in South Africa today is not an appropriate method of analysis. Here’s why:

Ours is a constitutional state under the rule of law. The supremacy of the rule of law is foundational to the new order established in place of the parliamentary sovereignty of the apartheid era and going back to the formation of the Union of South Africa in 1910.

Obedience to the rule of law is not a “nice to have” or a matter of policy choices, whether made incrementally or otherwise. In Section 165(5) of the Constitution, the position is succinctly stated: “An order or decision issued by a court binds all persons to whom and organs of state to which it applies.”

Despite his utterances to the contrary, Jacob Zuma is a stranger to the rule of law. See for example his famous David Frost interview.

Zuma “talked the talk” but he did not “walk the walk”. On his watch, the binding decisions of the Constitutional Court in the Glenister cases were treated with disdain, as a consequence of which the anti-corruption machinery of state in South Africa is in tatters, dysfunctional and incapable of preventing, combating, investigating and prosecuting the corrupt in a manner that is effective and efficient. In Glenister II the highest court in the land ordered as follows on 17 March 2011:

“5. It is declared that Chapter 6A of the South African Police Service Act 68 of 1995 is inconsistent with the Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate for Priority Crime Investigation.

“6. The declaration of constitutional invalidity is suspended for 18 months in order to give Parliament the opportunity to remedy the defect.”

In short, the Hawks did not then pass constitutional muster and remedial legislation was required. The remedial legislation passed in 2012 was itself challenged and was also found wanting in various respects. Today no one even suggests that the Hawks are the answer to the challenges posed by State Capture, rampant kleptocracy and corruption on a grand scale in South Africa.

Overall responsibility for this mess has been in the lap of Ramaphosa at least since February 2018 and arguably for five years before that when he joined the Zuma Cabinet as deputy president.

It is not appropriate to use the principles of logical incrementalism to address the undermining of the criminal justice administration by Zuma. It is true that the Special Investigating Unit, which has no criminal jurisdiction, has been given more work to do by Ramaphosa than Zuma ever gave it. It is also so that the National Prosecuting Authority (NPA) now has an Investigating Directorate to beef up its anti-corruption endeavours. As this new unit has a finite lifespan and serves at Ramaphosa’s pleasure, it is of questionable constitutional pedigree. Budget cuts and capacity constraints throw a dark cloud over its effectiveness and efficiency – both are required by Section 195(1)(b) of the Constitution.

It is also so that a year ago the National Executive Committee of the ANC instructed Cabinet to, in effect, properly comply with Glenister II by urgently establishing a single, stand-alone, permanent and independent entity to “deal with” corruption. The somewhat underwhelming response, made in the State of the Nation Address (SONA) of February 2021 by the President is worth quoting in full:

“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multisectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.”

The President is being poorly advised by those who appear not to understand (or choose to ignore) the thrust of the findings in the Glenister litigation concerning the inadequacy of the Hawks.

A statutory body of the kind envisaged in the SONA cannot enjoy the legally required security of tenure of office. Excellent statutory bodies can be, and indeed are, disbanded at the instance of a rogue executive supported by a meek, simple majority in Parliament. This fate befell the Scorpions when they were lamentably removed from the statute book the moment Zuma occupied the presidential office at Luthuli House.

Avoiding the Scorpions’ sad fate is possible via the establishment of a new Chapter 9 institution that answers to Parliament. Unfortunately, the body envisaged in the SONA is vulnerable to the same fate as the Scorpions, while Chapter 9 institutions cannot be terminated by a simple majority and are accordingly both operationally and structurally independent in much more than name.

The envisaged “independent statutory anti-corruption body” will not pass constitutional muster. An urgent rethink is indicated.

The August 2020 resolution of the ANC National Executive Committee presents a better starting point for compliance with the binding findings in the Glenister litigation.

There has been no progress since February 2021. The advisory council, an unnecessary intrusion, does not exist. The budget cuts in the criminal justice administration continue and compliance with the orders of court and the decisions setting out the criteria by which to measure anti-corruption machinery of state, is yet to be achieved. Only the DA, somewhat tentatively, has taken the step suggested by Accountability Now in 2012. It has instructed the parliamentary drafting team to prepare private members’ bills for the establishment of a Chapter 9 Anti-Corruption Commission.

In 2012, the NPA was still reasonably intact. That is no longer the case. It has been hollowed out and compromised during the State Capture process of the Zuma years and it will take many a long year to restore it to its pre-Zuma status, years that the country does not have at its disposal. Current NPA leaders are thwarted by the presence of what they call “saboteurs” in the ranks of the NPA. These cadres were planted there to ensure that no Zuma crony goes to jail for corruption. They are still faithfully executing their mandate.

It is high time that the executive and legislative branches of government man up to comply with the orders and decisions of the judiciary in the Glenister cases. These are not matters for logical incrementalism. The rule of law requires that the human rights guaranteed to all must be respected and protected. This duty lies at the heart of the reasoning in Glenister II. It is a duty of the state that cannot be performed while corruption reigns supreme.

The loot of State Capture should be recovered urgently, not used as a bargaining chip in any possible faction fighting within the ANC. The country could do very well with the R1.5-trillion injection available if the loot, or a good part of it, is raked back from those who participated in State Capture, including the banks that laundered the money, the accountants who audited with one eye closed and the lawyers who advised on the nefarious schemes that saw Treasury bled dry by the corrupt.

What is actually needed is a new Chapter 9 entity, provisionally dubbed “The Integrity Commission” to prevent, combat, investigate and prosecute serious corruption of all kinds in South Africa in a manner that complies with the rule of law and the decisions of the courts.

Accountability Now will shortly present the Constitutional Review Committee of the National Assembly with draft enabling legislation and the necessary draft constitutional amendment for its urgent consideration. These drafts put flesh on the bones of the ANC resolution taken a year ago. A resolution not yet acted on by Cabinet.

Active citizens who appreciate their participatory role in a constitutional democracy should examine the drafts critically and seek to improve upon them. They are not matters for logical incrementalism, they are long overdue compliance with the law and the Constitution. As the chief justice put it in Glenister III:

“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. We are in one accord that South Africa needs an agency dedicated to the containment and eventual eradication of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.” DM

To find more information on the proposed anti-corruption constitutional amendment, please enjoy the full details available here

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