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State Capture inquiry: Here is why the ANC is actually on trial

Former ANC spin doctor, Zizi Kodwa, insists that the ANC is not on trial before the Zondo Commission sitting in Parktown to inquire into the phenomenon of grand corruption that has become commonly known as the “capture of the state”. Kodwa is quite wrong. Here’s why.

According to the “strategy and tactics” documentation of the ANC, its reason for getting up in the morning and getting to work on the future of the country is to establish “hegemonic control of all the levers of power in society”. This is the original and greatest sin of the organisation.

The notion of a mere political party being in control of the media, the judiciary, the “commanding heights of the economy” and the public administration, including state owned enterprises, is deeply at odds with the constitution’s idea of a multi-party democracy under the rule of law in which a justiciable Bill of Rights guides the conduct of governance openly, accountably and in a way that is responsive to the needs of the people of the country. The principles of the separation of powers and the institution of checks and balances on the exercise of power (through free media, an independent judiciary and Chapter Nine Institutions) are deeply at odds with the ANC’s professed desire to secure for itself hegemonic control in all facets of society or “levers of power” as the ANC’s own literature puts it in Leninist terminology.

The way in which the ANC goes about seeking to achieve its self-proclaimed goal of hegemonic control is through the practice of what it calls “cadre deployment”. The very idea of deployment, rather than appointment on merit, is at odds with what our constitutional dispensation requires in respect of human resource management in the public administration and state owned entities. The deployment of cadres loyal to the tenets of the “national democratic revolution” that the ANC is still striving to bring to fruition is both illegal and unconstitutional in the public service, the judiciary and the state owned enterprises. Worse still, loyalty to the revolution is daily allowed to trump loyalty to the Constitution and the people of SA. The ANC comes first, as Jacob Zuma has often stated. The conflict of interests generated by being deployed to pursue the ANC’s revolutionary agenda when the task at hand is the realisation of the transformative (not revolutionary) goals of the Constitution is at the root of State Capture. A loyal deployed cadre thinks it is in order to serve the perverse wishes of political masters in Luthuli House in preference to acting in the best interests of the people of SA. Nkandla, blue light convoys, expensive ministerial braai areas, fancy furniture the list is endless.

The ANC is going to be held to account for this seriously wrong-headed approach when the Zondo Commission gets round to exploring the causes of State Capture.

It ought to have been entirely predictable to voters that the ANC’s striving for hegemony and the use of deployed party cadres would lead to the pickle in which the country now finds itself, but, loyal to the liberation struggle, voters did not, in the past anyway, seem to notice the perversion of the struggle for liberty into the seizure of “all power” in the ANC’s pursuit of hegemony. This past loyalty is fading, especially in urban areas. Its loss of popularity has the leadership of the ANC running around in panicked circles like a headless chicken. The reversals of 2016 and the trend toward voting, at least in the urban economic powerhouses of the country, for opposition parties has brought the “revolution” into question in ways not imagined on the watch of Jacob Zuma, during which Kader Asmal’s plea to “scrap the NDR” was ignored.

Then there is the stupidity and recklessness of the ANC in supporting Zuma at Polokwane in 2007 and again five years later in Mangaung. What was the ANC thinking? Zuma’s erstwhile financial advisor, Schabir Shaik, had been sentenced to 15 years imprisonment for his involvement with Zuma. No warning bells rang in Luthuli House at candidate selection time.

The deeply flawed moral fibre of Zuma was also on public display before he rose to the presidency of the ANC. Surely the ANC is guilty of failing to ask itself these simple questions: Should an open, accountable and responsive constitutional democracy entrust its presidency, both head of state and leader of the national executive, to a person who admits to having unprotected sex with a young woman about half his age who is to his knowledge HIV positive ? A woman who happens to be the daughter of his late wartime friend, comrade and protector as well as his vulnerable house guest , one who calls him “uncle”? A married man, who, to protect himself, his many wives and lovers against the risk of infection, takes the ridiculous precautionary measure that has left him with ashower head in Zapiro’s cartoons?

Despite the resoundingly obvious answers to these questions, the ANC, not once, but twice, put its trust in Jacob Zuma to lead the nation – it needs to be put on trial for so doing and the Zondo Commission is as good a vehicle as any for this necessary work.

The really decisive trial comes at the voting booth in 2019.

The ANC proudly boasts that it engages in a collective style of leadership. Resolutions of its highest decision-making body, the National Executive Council, are usually made by consensus. This practice confirms the collectivist nature of the ANC. It is thus collectively responsible for electing Zuma and for allowing his wrecking ball to swing freely between December 2007 and Valentine’s Day this year. It follows that the ANC must go on trial for the sins of Zuma. He was its deployed cadre.

The Cabinet too has a lot to answer for: the Cabinet is collectively responsible for running the executive branch of national government. Whether it has acquitted itself to the satisfaction of the majority of voters will be decided in the votes of 2019. Voters may choose to be informed by what emerges during the Zondo Commission hearings, in which event the ANC will be on trial there for its very existence as a political formation. The Zondo Commission will have to explore Cabinet responsibility for allowing State Capture.

Zizi Kodwa tries to make out that having the Zondo Commission was all the ANC’s idea anyway. Nonsense. The origin of the Commission is the “State of Capture” report of the Public Protector back in October 2016. Thuli Madonsela’s parting gift to the nation at the end of her term of office was to point out that Zuma declined to answer simple questions she put to him about State Capture and that a commission of inquiry was needed to probe the nature and extent of the capture of the state. Zuma, with collective support within the ANC, resisted the appointment of a commission. He litigated against the remedial action required by Madonsela. Only when the writing was on the wall signalling the end of his ascendency in the ANC did he reluctantly do what the OPP had required of him, with urgency, nearly two years earlier.

The ANC knows it is on trial. Look at what its new president, Cyril Ramaphosa said on 13 January 2018 after its NEC meeting in East London:

“Corruption in SOEs and other public institutions has undermined government’s programmes to address poverty and unemployment, weakened key institutions, discouraged investment and contributed to division within the ANC and the Alliance. The ANC therefore welcomes the announcement by President Jacob Zuma of the establishment of a commission of inquiry in line with the findings of the Public Protector’s report on State Capture.

“Anti-corruption efforts within the state must be more effectively co-ordinated and all forms of corruption must be exposed and prosecuted. This includes corruption, collusion and other criminal activity in the private sector, which must be fought with equal diligence and determination.

“Strong and efficient law-enforcement agencies are critical to the fight against corruption and crime generally, and to the restoration of the integrity and legitimacy of the state. In this regard, the ANC is of the firm view that the country’s intelligence services, the police and prosecutorial authorities should be strengthened and fortified to act with professionalism, and without fear, favour or prejudice. They should continue to be at the forefront of the fight against corruption and State Capture, and work with communities to deal decisively with acts of criminality that threaten to tear communities apart.”

And later in the same statement:

“We shall confront corruption and State Capture in all the forms and manifestations that these scourges assume. This includes the immediate establishment of a commission of inquiry into State Capture. The investigation and prosecution of those responsible will be given top priority. Mechanisms for the appointment of individuals to senior government positions, state-owned entities and law enforcement agencies will be strengthened to improve transparency, prevent undue influence and ensure adequate vetting of candidates.

“We must work to restore the credibility of public institutions, including state owned enterprises and law enforcement agencies, by addressing excessive turnover in senior positions, undue political interference, poor co-ordination and corruption.”

The creation of strong and independent institutions of state is a UN sustainable development goal. The desired independence is freedom from political influence and interference of the kind that the Zondo Commission is highlighting daily, the kind that the weary SA public has become accustomed to on the ANC’s watch. Why is Ace Magashule, ANC Secretary General, not in the Estina Dairy criminal court dock with those who did his bidding in order to polish his marble with the Guptas? Why has no criminal investigation of the doings of Deputy President DD Mabuza in his home province of Mpumalanga been instituted? Badplaas businessman Fred Daniel allegeldy has the ‘smoking gun’ evidence against Mabuza, but nothing is done to investigate and prosecute due to the ‘royal game’ status of the perpetrators in these cases and many others. The capture of the Hawks is exposed in Parktown and the partial capture of the National Prosecuting Authority is also evident.

The appointment by Ramaphosa of Bheki Cele, disgraced former Commissioner of Police, as Minister of Police, flies in the face of the professed commitment to cleaning up the corrupt. Despite the Moloi inquiry recommendation that Cele be investigated for corruption, no such investigation has been initiated.

In response to the January 2018 statement quoted from above, Accountability Now wrote to the Secretary of the Constitutional Review Committee of the National Assembly on 15 January 2018 to draw attention to the apparently changed stance of the ANC leadership, saying:

“There is no need to re-invent the wheel. Our submissions regarding the establishment of a new Chapter Nine Institution to prevent, combat, investigate and prosecute serious corruption will be the best practice way in which to implement the good intentions expressed in the words quoted in italics above, taken from the January 8th 2018 statement of the ANC. The NEC’s use of the phrase ‘without fear, favour or prejudice’ signifies a commitment to the independence of the anti-corruption machinery of state. This is a most welcome change.

“The two Chapter Nine Institutions currently mandated to address corruption, the Auditor General and the Public Protector, have no mandate to deal with private sector malfeasance including corruption. This is a flaw in the architecture of the Constitution which the committee needs to address with urgency, given the words quoted above and also in the light of its own mandate to constantly review the Constitution.

“We remind you and the honourable members of the committee that a draft constitutional amendment and the necessary draft bill in respect of the enabling legislation for the new machinery of state we envisage in our submission are available on our website on the ‘Glenister Case’ page.

“The national commitment to the rule of law requires that the judgments of the Constitutional Court in the Glenister litigation be implemented in the manner contemplated by Section 165(5) of the Constitution. Lamentably this has not happened in recent years. The Hawks are meant to be the elite independent corruption busters. They are not. The current administration has instead created a hydra headed monster called the “Anti-Corruption Task Team” which is both dysfunctional and unconstitutional given the court finding that a single entity is required that is STIRS compliant. This acronym requires that specialists who are thoroughly trained, independent of the executive in structure and operations, properly resourced in guaranteed fashion and who enjoy security of tenure of office are in place. At present no such entity exists. Hence the concerns raised in the two passages quoted from the January 8th statement and set out for ease of reference above.

“Please be so kind as to acknowledge receipt of this email and confirm that you have placed its contents before the members of the committee. We intend to make this communication public; if there is any response to it, we will likewise disseminate the reaction of the committee to the public as this is a matter of great national importance that, in the words of section 237 of the Constitution, needs to be dealt with ‘diligently and without delay’.”

While commissions of inquiry are useful fact finding tools of the executive, they have no accountability functions and no powers of prosecution. A standing Commission under Chapter Nine, on the other hand, is better able to treat the malady of corruption “before it graduates into something terminal” as the Chief Justice put it in November 2014 in the most recent Glenister case.

All that is now required is the political will to translate the Glenister judgments and the quoted utterances of Ramaphosa into reality. The committee has a central role to play in creating the necessary political will.”

The Chairman of the committee is an ANC member of parliament called Vincent Smith. He is also the newly crowned chair of the Justice Portfolio Committee of the National Assembly. It is his function to response to the email sent in January and quoted from above. Unfortunately no response to the communication has been received. Smith now stands accused of being in a corrupt relationship with Bosasa or one of its directors. That is Bosasa of irregular prisons procurement infamy. It is small wonder then that Smith has shied away from engaging on the need for proper anti-corruption machinery of state, despite what was said by the ANC NEC in January.

Indeed, the ANC has behaved in a paralysed fashion in the face of the avalanche of revelations in the #Guptaleaks, the academic studies of the “betrayal of the promise” the churches’ “unburdening report” and the research of several investigative journalists who have written books of the kleptocracy involved in the capture of the SA state.

None of the fine sounding phrases uttered by Cyril Ramaphosa in January have translated themselves into actions by the ANC or by government. The Zondo Commission is not its creation, attempting to take credit for its provenance is disingenuous, if not downright dishonest.

Voters will work out for themselves that the actions of the ANC speak louder than its fine sounding words. Voters are not stupid, as Patricia de Lille is fond of saying. The problem is, on the all-important anti-corruption front, that the ANC is full of words that sound encouraging, but is very short on actions. That is why it is on trial in Parktown. So far, “ANC guilty of dereliction of duty” findings seem likely with “ban cadre deployment in the public service” and “establish an Integrity Commission” recommendations in prospect in the Zondo Commission.

If the ANC chooses, for reasons of its very fraught internal factional politics, to put off establishing the Integrity Commission until after the Zondo Commission report in two or three years from now, it will do the country a great disservice and knobble the prospects of recovering the assets and funds of the state misappropriated during the capture process. It will place the country at risk of becoming a failed state.

The time to establish the Integrity Commission is now; the need to end cadre deployment is immediate as is the need for steps to end impunity for the well-connected and to recover the billions misappropriated. Whether the ANC can generate the necessary political will to do what is needed, remains to be seen. It will suffer at the ballot box in 2019 if it is perceived by voters to be what it currently appears to be: irreversibly and collectively corrupt. DM

Paul Hoffman SC is a director of Accountability Now

Opinion editorial published in the Daily Maverick on 4 September 2018.

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