The opening of a Pandora’s box of revelations in the evidence being presented at the Zondo Commission into State Capture does not bode well for the future of the Hawks.
It has long been suspected that the Hawks were captured by the baddies during the Zuma era. The efforts of “retired” General Berning Ntlemeza to secure a prosecution of Pravin Gordhan, one of the good guys, on trumped up charges designed to persecute, not prosecute have long been a matter of public record.
However, the frightening depth of the malaise in the Hawks appears from the evidence of Vytjie Mentor, Mcebisi Jonas and Themba Maseko. They have all testified to the efforts of the Hawks to protect those in the orbit of the Zuma and Gupta families.
“Deny an interest in pressing charges,” “leave the name of then president Jacob Zuma out of your statement” and, really taking the cake: “Beware, we are investigating your IT procurement in 2005 Mr Maseko.” There are unfortunately, according to the evidence given, elements in the prosecution service who are in cahoots with the ne’er-do-wells identified in the testimony.
Bald denials and requests to cross-examine ring hollow; what possible benefit is there to these three patriotic witnesses in turning their backs on their comrades by swimming upstream and standing up for the truth via blowing the whistle on the rancid corruption to which they have been exposed by the Guptas and Zumas? The rot runs deep and it runs wide in the Hawks.
The Hawks are a creation of the Zuma era. They were custom-designed to enable State Capture. Unlike the Scorpions, whom they replaced, they are obliged to report to a politician. The Scorpions reported to a public servant – the National Director of Public Prosecutions. In constitutional terms the National Prosecuting Authority is obliged to act independently or “without fear, favour and prejudice”.
At present, the politician to whom the Hawks must report is Bheki Cele, the Minister of Police. Cele was previously the National Commissioner of Police. Ordinarily that experience would stand him in good stead to be the minister to whom the police answer. Sadly, Cele was caught out irregularly leasing premises for police headquarters at grossly inflated rates.
This led via an investigation by the Public Protector to the appointment of the Moloi Board of Inquiry into his fitness for office. The late Justice Moloi found Cele unfit for office due to his dishonesty and incompetence. He recommended that Cele be investigated for corruption. This judicial advice was ignored by the Zuma administration; instead Cele became a deputy minister in the Zuma Cabinet and now, heaven help us all, a full minister in the first Ramaphosa cabinet. What was the president thinking putting Cele in the police portfolio?
The inherent problem with the Hawks is in the design of the unit. The Constitutional Court has called for a structural and operational design that complies with five criteria. Its findings in the majority judgment of the Glenister case handed down on 17 March 2011 are binding on the state. The five criteria embrace the notion of specialised and properly trained staff, who are well resourced in guaranteed fashion, and who enjoy security of tenure of office. The anti-corruption unit must be a single entity that is dedicated to preventing, combating, investigating and prosecuting serious corruption of all kinds. Most importantly, independence from political influence and interference is a vital feature of the make-up of the institution that the court envisaged in 2011.
Clearly, this vision was at odds with the State Capture project under way at the time on Zuma’s watch. The remedial legislation passed in response to the court’s findings was successfully impugned for its failure to comply with the constitutional requirements prescribed by the court. As a result the Hawks are now in their third legislated incarnation. However, they are no closer to fulfilling the functions envisaged by the court than they were during their first incarnation. Their design is such that it is akin to a child’s tricycle being used for lunar exploration.
The messy aftermath of State Capture, the need to end impunity, the desperate financial requirement to recover assets and funds misappropriated during State Capture – all these factors call for a fresh look at the court’s findings and a new institution to fit them. The Hawks are beyond repair when it comes to fighting grand corruption, their structure, reporting lines, resources and capacity preclude it. They can be kept to attend to other priority crimes but they have very thoroughly proved themselves unequal to the task of preventing grand corruption, kleptocracy and the capture of the state.
How then should the Ramaphosa administration manifest its “new dawn” on the anti-corruption front in a manner that develops into such brilliant sunshine that there will be no shady spots in which the corrupt can continue to hide?
Accountability Now, which played a role in getting the court to set the Glenister criteria when most cynical observers believed that this achievement would be “mission impossible”, has long championed the notion of creating a new Chapter 9 Institution called the Integrity Commission or something similar. Eagles that fly higher, see further and go after bigger prey than Hawks are needed and they are needed now.
Locating the anti-corruption machinery of state under the Chapter 9 umbrella immediately guarantees the independence, both structurally and operationally, of the unit. This is because it will be required to report to the multi-party parliament, not a member of the cabinet like, heaven forbid, Bheki Cele. Furthermore, the Constitution itself prescribes the independence of Chapter 9 Institutions which, like the courts and prosecution service are required to act “without fear, favour or prejudice”.
The Hawks have shown that they fear the powerful, favour the corrupt and act in ways that are prejudicial to the public weal. The evidence given to the Zondo Commission is confirming this assertion and will, most likely, continue to do so in a manner that will torture the soul of the nation and depress good citizens of all political persuasions.
In the follow up the Glenister case in which judgment was delivered in November 2014, the court declined to find that the location of the Hawks within the police is not the decision of a reasonable decision maker in the circumstances. Glenister contended, and with the benefit of hindsight he was prescient in so doing, that the cabinet, the police and the Hawks themselves were too corrupt for cabinet supervision and location as a unit within the police. The court accused Glenister of “odious political posturing” for putting up expert evidence to prove his contentions regarding the “vrot” state of the Zuma administration.
Today, more than half of Zuma’s Cabinet, including the current ill-chosen Minister of Police and a Minister of Justice who signed off on the invalid and illegal termination of the services of the NDPP Mxolisi Nxasana, are still in office. The court’s majority finding appears to have been ill-informed in the light of after-acquired knowledge now tumbling out of the Pandora’s box in Parktown.
The time to relocate the anti-corruption machinery of state as an institution under Chapter 9 has now come.
If the Ramaphosa administration cannot purge itself of the compromised elements in its ranks and become pro-active about faithfully and whole-heartedly complying with the criteria laid down by the court in 2011, it will be necessary to revisit the 2014 decision of the court in urgent litigation aimed at securing compliance with the law as laid down in 2011. This process will take time that the country can ill afford.
It would be far better to look again at the representations made by Accountability Now to the Constitutional Review Committee of the National Assembly in 2016. There is draft legislation ready for parliamentary debate and adoption as the law of the land. An Integrity Commission will complement the work of the Auditor General whose audits often point to malfeasance, and also the maladministration functions of the Office of the Public Protector.
The Integrity Commission’s specialised and well-trained staff will prevent, combat, investigate and prosecute serious corruption in a manner not seen since the heyday of the Scorpions, who were closed down for going after ANC politicians too effectively and efficiently. Unlike the Scorpions they will enjoy security of tenure of office, arguably the one criterion the Scorpions lacked – which led to their demise as a corruption-busting entity.
Giving the Integrity Commission powers to prosecute the corrupt neatly side-steps the issues of poor leadership and management in the prosecution service. It will take many years, years the country can ill afford, to repair the damage done to the NPA in the Zuma era. It is far better to start afresh, with a clean slate, by appointing investigators, forensic experts and prosecutors to a new institution that is able to make an immediate impact on unravelling State Capture, cornering the kleptocrats and recovering the public assets and funds misappropriated and exported to far corners of the world in expertly executed activities and prosecutions that are run by those loyal to the country, not to crooked politicians who appointed them.
If the new leadership of the ANC is too compromised to do the right thing by the country as regards the provision of proper anti-corruption machinery of state, then resort to litigation is the only option open to those who wish to put a stop to the rot that lingers after the Nasrec changes. Those changes cannot be accurately likened to the re-arranging of the deck chairs on Titanic if SA is to escape a fate similar to that of the Titanic. DM
Paul Hoffman SC is a director of Accountability Now
Opinion editorial published in the Daily Maverick on 31 August 2018.