The corruption, stupid

by | Aug 4, 2021 | Chapter 9, General | 0 comments

Back in 1992, James Carville, a strategist for the Clinton presidential campaign in the USA, was a man of few words.

In order to keep the campaign on message, Carville hung a sign in Bill Clinton’s campaign headquarters that read:

  1. Change vs more of the same.
  2. The economy, stupid
  3. Don’t forget health care.

The harsh realities of SA today call for the addition of a fourth message that needs more careful consideration than it has been given in the hue and cry following the riotous looting that preceded the celebration of Madiba’s 103rd birthday:

  •          The corruption, stupid.

The tattered “new dawn” agenda of the ANC seems to be descending into a form of governance by sleight of hand in which the right reformists noises are made but never acted on effectively or conscientiously. The “long game” is morphing into a timeless test. Lip service is paid to the values and principles of the Constitution, but the ANC persists in pursuing its “National Democratic Revolution” (NDR) agenda. This agenda is fundamentally at odds with the notions of multi-party democracy under the rule of law, the separation of powers, the independence of the judiciary and the necessary checks/balances on the exercise of power. The values of accountability, openness and responsiveness that are meant to underpin our constitutional order are honoured in the breach. Poverty, inequality and joblessness persist and deepen despite the uninterrupted dominance of the ANC since 1994.

The recent misdescription of the July 2021 troubles as a “counter-revolution” by the minister of defence chimes perfectly with the strange utterances of Minister Dlamini-Zuma as she welcomed the covid19 pandemic on 25 April 2020 because it:

“also offers us an opportunity to accelerate the implementation of some long agreed upon structural changes to enable reconstruction, development and growth. These opportunities call for more sacrifices and – if needs be – what Amilcar Cabral called ‘class suicide’ wherein we must rally behind the common cause.”

While senior cabinet ministers express themselves in this way, and continue to hold their jobs due to the stresses of ANC factionalism, the funds needed to stimulate economic growth are not going to magically materialise and the trajectory of SA toward failed statehood will only accelerate. No sane investors put their money into the orbit of those contemplating counter revolutions and class suicide.

Apart from the need to abandon the NDR openly and accountably, there is much that can be done in the short term to turn the tide in the fortunes of SA.

A credible anti-corruption message that impresses investors and potential investors needs to be given by government now. The warning sounded and the “worry” expressed  by Mark Gevisser in his 2007 biography of Thabo Mbeki “The Dream Deferred” needs to be addressed head on and fearlessly. Gevisser wrote:

“(Mbeki) was deeply distressed by the possibility of being succeeded by Zuma… he believed his deputy’s play for the presidency to be part of a strategy to avoid prosecution… Mbeki allegedly worried that Zuma and his backers had no respect for the rule of law, and would be unaccountable to the constitutional dispensation … There was also the worry of a resurgence of ethnic politics, and – given his support from the left – that Zuma’s leftist advisors would undo all the meticulous stitching of South Africa into the global economy that Mbeki and his economic managers had undertaken over 15 years … (T)he possibility of a Zuma presidency was a scenario far worse than a dream deferred. It would be, in effect, a dream shattered, irrevocably, as South Africa turned into yet another post-colonial kleptocracy; another ‘footprint of despair’ in the path of destruction away from the promises of uhuru.”

The talk of “counter revolution” and “class suicide” in the current cabinet suggests that Mbeki’s worst fears are materialising as the leftist kleptocrats call the shots in the ANC. It is not beyond the bounds of probability that the looting sprees in Kwa-Zulu Natal and Gauteng were part of the Zuma strategy to avoid prosecution for his alleged corruption and jail time for his proven contempt of court.

The reformist agendas of the new dawn, especially its oft-stated anti-corruption stance, need to be accelerated and actually acted on swiftly to avoid catastrophe. It is in the area of anti-corruption activity that reform is most urgently needed. Not only to arrest the kleptocrats, investigate their malfeasance and prosecute them, but also to restore business and public confidence in the ability of the reformers to govern. For from this will flow the necessary new investment that will kick-start the economy, attract the long-sought job creation and end the cycle of poverty and inequality.

It is not as though the ANC has not thought about what needs to be done. The National Anti-Corruption Strategy is a detailed document filled with Zuma era thinking with a light sprinkling of good sense. The urgent resolution taken by the National Executive Committee of the ANC a year ago in which cabinet was instructed to establish a single, stand-alone, permanent and independent agency to “deal with” corruption reveals a fine understanding of the legal requirements put in place by the courts but ignored, for obvious reasons, during the Zuma presidency. That resolution, which does not appear to have been acted on with the urgency it demands and requires, finds a faint echo in the Sona by President Ramaphosa in February 2021 in which he said:

We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral 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 binding findings in the Glenister litigation that centred around the inadequacy of the Hawks.

A mere 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 any rogue executive of the kind feared by Mbeki and supported by a meek, simple majority in parliament. This fate befell the Scorpions when they were lamentably removed from the statute book the moment Jacob Zuma occupied the presidential office at Luthuli House.

Avoiding the Scorpions’ unfortunate fate is possible via the establishment of a new Chapter 9 institution with an investigative and prosecutorial mandate 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 presidentially 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.

It is perhaps of some significance that the president’s  announced advisory body has not seen the light of day. The events that occurred in the days after Zuma was incarcerated for contempt of court have, or ought to have, accelerated considerably the need to address the weaknesses in the anti-corruption machinery of state in SA. The prospects of pulling SA back from the brink are enhanced, provided that effective and efficient steps are taken to counter the corrupt; if they are not taken, the slide to failed statehood is accelerated. An advisory body can do no more than point government in the direction of the loud and clear findings in the Glenister cases.

Th Democratic Alliance has upped the ante by announcing that it will soon present private members bills supporting a new anti-corruption investigative body. Accountability Now persists in its plans for a one stop shop housed in Chapter Nine and established to investigate and prosecute serious corruption in all its forms. If it continues to dither and dance on eggshells, the ANC may miss the bus and be exposed in election campaigning as soft on corruption due to its walk not matching its talk.

Paul Hoffman SC is a director of Accountability Now

30 July 2021.

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

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