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The Exporting Corruption Report by Transparency International unpacked

Transparency International has published its progress report for 2018 in which it assesses enforcement of the OECD Anti-Bribery Convention. TI calls itself a global movement (with more than 100 chapters) with one vision:

A world in which government, business, civil society and the daily lives of people are free of corruption.”

 The report sets out global findings and recommendations regarding the status of enforcement of the Convention, the availability of data, mutual legal assistance, the status of the legal framework and enforcement system in the countries studied, with sections on settlements and the role of China and other major exporters (notably India) not party to the Convention.

There are separate sections, country by country of reports on OECD Convention countries and on four selected non-OECD Convention Countries, namely China, India, Hong Kong and Singapore. South Africa is one of the Convention countries.

The TI treatment of SA puts the country in the second lowest category of performance on its treaty obligations as one in which there is “limited performance” in respect of foreign bribery investigations in the period 2014 to 2017. The only category below this one is called “Little or no enforcement”. No doubt, in categorising SA, a judgment call was made on the basis that in the period in question SA did open 15 formal foreign bribery investigations none of which resulted in convictions and three of which were closed for unspecified reasons.

TI comments on the paucity of publicly available data whether from the Hawks, the SAPS or the NPA. The secret electronic database kept by the illegal and unconstitutional Anti-Corruption Task Team (hardly the dedicated and specialised entity required by the courts) is lamented on the basis that no relevant statistics have been published. So much for open and accountable governance that is responsive to the needs of the people. TI seems to miss that the ACTT is not what the courts and the legislature had in mind when they jointly moulded the legal framework for the Hawks as the premier anti-corruption entity for SA.

While TI does list recent legislative amendments to the substantive anti-corruption architecture of SA, it does not seem to recognise the capture of the state discerned and complained of by the Public Protector in her “State of Capture” Report of October 2016. Indeed state capture, a “silent coup” or kleptocracy in high places in SA, do not qualify for a mention in the report, surely a glaring omission on the part of the authors.

The tinkering with the legislation listed in TI’s report is not seen by TI for what it is: a feral government paying lip service to the rule of law by doing some window dressing for unobservant commentators on the state of the country as regards the combatting of corruption and bribery.

The widely reported attempt by Indian born businessmen known as “the Gupta brothers” to bribe a deputy minister does not get any ink from TI. It is hard to know why this glaring omission has occurred. As for whistle-blower protection: the threat to the life of Mcebisi Jonas and the political killings in KZN and elsewhere in SA are not glossed over, they are omitted completely from the discussion under the heading “Recent Developments” on page 79 of the Report.

Perhaps the most disappointing sentence in the report is this one:

“In 2014, the Supreme Court reviewed and decided on amendments to the SAPS Amendment Act, to improve guarantees of independence”

 What in fact happened in 2014 was that the Constitutional Court revisited its 2011 decision that combatting corruption is a human rights issue that requires of the state that it establish and maintain an adequately independent entity to prevent and combat corruption in an efficient and effective way. In 2011 the Court required a dedicated entity imbued with the qualities of specialisation and security of tenure of office for its personnel, properly resourced and free from executive control, influence and interference.

Disastrously, for the fight against corruption, the two Justices who wrote the 2011 majority decision of the Court could not agree on what they meant in it and found themselves on opposite sides in the 2014 case concerning issues of vital importance for taking forward the battle for freedom from corruption. The cases (there were two heard together) were not review proceedings; they were applications impugning the constitutionality of the amending legislation (on which they succeeded in important respects) and, in the one case, impugning the location of the anti-corruption entity, the Directorate of Priority Crime Investigation or Hawks within the police service given the dysfunction, criminality and corruption of SAPS, the corruption in the Zuma cabinet and the circumstance that corruption is rife in SA. While the Court agreed that in SA corruption is rife and threatens, in the words of the Chief Justice, to “graduate into something terminal”, it was not prepared to consider the circumstances relied upon to relocate the Hawks outside of the SAPS.

The Court refused to consider the expert evidence of Professor Gavin Woods and respected ISS researcher Gareth Newham, concerning the state of corruption in a country, the police and the executive. A country in which state capture was under way and then President Zuma was fending off 783 counts of corruption. Instead the Court characterised the evidence as “odious political posturing” on the part of the litigant, Johannesburg businessman Bob Glenister, who dared to allege that then President Zuma was too corrupt and too compromised for the executive he headed to exercise control of the Hawks. A form of control executed in the way in which Bheki Cele (the Ramaphosa choice for Minister of Police despite his dismissal in 2012 as Commissioner of Police for his dishonesty and incompetence) now controls the Hawks.

That the majority of the Court erred in allowing executive control of the Hawks, located within SAPS, is now patently obvious and was so when TI’s report was written. In the light of the after-acquired knowledge of the persecution of Pravin Gordhan by the Hawks; the various books by investigative journalists, the #Guptaleaks and the academic studies of the “silent coup” in our “shadow state”, it is plain that the Court erred with seriously deleterious consequences.

None of this important information concerning corruption and the grossly inadequate anti-corruption machinery in SA creates the slightest blip on the radar of TI, whether for reasons of political correctness, academic laxity or otherwise is hard to fathom.

It is therefore not surprising to find that in the list of recommendations made by TI nothing is said about the seriously inappropriate location of the Hawks in the SAPS nor about the lack of suitable safeguards to ensure that its operations and structure are adequately robust to withstand the sort of onslaught from wicked political leaders which made the Hawks into the ‘dirty tricks department’ of a feral faction of the ANC.

Although most interested observers in SA are saturated with the pertinacious advocacy work done to promote the establishment of an Integrity Commission, under Chapter Nine of the Constitution, to prevent, combat, investigate and prosecute bribery and corruption, TI does not include this salutary step in its list of recommendations. Not even the support for the notion of an Integrity Commission given by Professor Thuli Madonsela and Emeritus Archbishop Desmond Tutu piques the interest of TI.

Certainly it would be an improvement to publish enforcement data systematically. By all means strengthen whistle-blower protection. Yes, adequate resourcing is a must, indeed guaranteed resources are needed if any progress is to be made in undoing the ravages of the attempt at state capture so narrowly averted (if it has been averted).

TI surely knows from bitter experience that it is pie in the sky to recommend, as it does, that SA must:

“Improve co-ordination between investigating and prosecuting authorities, and ensure that investigations are free from political interference”

 Those with long memories will recall that the Scorpions, located in the NPA before it was gutted by the would-be state capturers, both investigated and prosecuted the corrupt with great expertly co-ordinated success. That is what the Integrity Commission would do, if only the political will to form it could be generated. Instead we stagger on with a broken NPA and a dysfunctional DPCI.

Indeed, had the Scorpions enjoyed the type of security of tenure of office that the Court now prescribes, they would have prosecuted Jacob Zuma in 2008, not 2018. How different SA would have been, had Zuma gone to jail instead of to the Union Buildings in 2009. The Scorpions ticked all the other boxes in respect of criteria laid down by the Court: specialised, trained, independent and properly resourced personnel struck such terror in the hearts of the then ascendant Zuma faction that the Scorpions were closed down to prevent them from prosecuting the highly placed politicians and their “friends” who should have been prosecuted but have instead been allowed to escape.

As the skeletons tumble out of the cupboard in the Zondo Commission hearings, the penny has surely dropped on Constitution Hill. Locating the Hawks within the police was an error that needs to be corrected urgently. Instead of making five wishy washy recommendations, TI should put its considerable clout behind advocating the establishment of an Integrity Commission. The draft legislation has been prepared, it is ready to be debated and refined by the processes of the legislature and the executive. All that is missing is the political will to do the right thing. The voters know what to do about that if the Ramaphosa administration can’t muster the necessary will because it is the captive of the Zuma aligned elements that still infest the Maharani-frequenting leadership of ANC.

As a co-author of the Constitution and a trained lawyer, Cyril Ramaphosa surely knows that establishing the Integrity Commission is the correct way to go. His professed desire to recover the stolen assets of the state and its misappropriated funds is best achieved by “ensuring that the necessary investigations are free of political interference” (to use TI’s words) so that the corrupt no longer enjoy impunity. But, knowing the right thing to do and actually doing it is not the same thing. It is for the electorate to insist that the right thing be done, quickly, before it is too late.

The business confidence and the trust in the government that establishing the Integrity Commission will generate is surely worth the factional political risks involved in doing the right thing. This step will surely have the effect of reversing the “technical” recession, creating more jobs and promoting a better life for all, in a new SA free of corruption, as TI envisages.

Paul Hoffman SC is a director of Accountability Now.

18 September, 2018.

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