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The New Dawn SONA says nothing about getting us out of the hole we’re in

Traditionally, the first sitting of a new Parliament (and we are now on our sixth ‘new SA’ Parliament) is kick-started with the delivery of a State of the Nation Address, or SONA, by the head of state and head of the national executive, who, in all six Parliaments, has also been the president of the African National Congress. SONA is the opportunity to ‘set out government’s stall’, list its priorities, its areas of concern and its plans for the year and the term ahead. When Parliament reconvenes after its summer break next year in February, another SONA will be delivered, giving engaged citizens an opportunity to reflect on progress made, promises broken and prosperity’s path.

In the run-up to the first SONA of the sixth Parliament, the ability of President Cyril Ramaphosa to turn words into actions on job creation, economic reform, countering crime and State Capture have been at the forefront of the eager anticipation of the speech.

The questions have revolved around three main themes: Can the kleptocracy of the Zuma era be supplanted by a meritocracy; will outmoded ideology continue to trump sensible pragmatism and will honesty in governance with integrity soon prevail? Examining and analysing the content of the speech will reveal conflicting answers to all three questions, depending upon the scepticism, optimism or pessimism of the observer. The SONA of 20 June 2019 has been a long time coming. Until the May 2019 elections, Ramaphosa could be regarded as a “caretaker president” filling in for his disgraced predecessor, Jacob Zuma, who resigned on 14 February 2018 rather than be recalled by those in Luthuli House who had already replaced the cadres who deployed him as Head of State. After the May 2019 general elections at national and provincial levels, Cyril Ramaphosa has come into his own as a leader of the country rather than merely the victorious campaigner at Nasrec, where the ANC held its own internal elective conference in December 2017. According to the ANC’s head of elections, Fikile Mbalula, Ramaphosa’s popularity moved the ANC’s electoral support from about 40% to the 57% achieved. Actually, if all those who opted out of electoral politics are brought into the equation, then the ANC’s share of the pie is a worrisome mere 27%. The pre-Nasrec CR17 campaign had a strong anti-corruption element, despite being funded in part by Gavin Watson of Bosasa infamy. The jury and the final report of the Public Protector are still out on the propriety of that transaction, cloaked as it was in trust accounts and front company activities. At Nasrec, urban legend has it that Ramaphosa was losing the leadership race until he brokered a deal with DD Mabuza, now deputy president, who was able to deliver the shortfall of branch votes needed to get Ramaphosa a narrow victory over his opponent, Nkosazana Dlamini Zuma, who was the preferred candidate of those who remain loyal to her ex-husband and outgoing president Jacob Zuma. That Zuma loyalists have not gone away is reflected in the top six of the ANC, the composition of its NEC and the choices made for Cabinet, premierships and chairs of portfolio committees in the National Assembly.

The terms of any possible deal brokered between Mabuza and Ramaphosa have never been publicly acknowledged. It is so that Mabuza is now the deputy president and, if ANC history, both internally and at the polls, repeats itself, then Mabuza will be president of the ANC in five or 10 years after the fateful Nasrec vote. If the dark forces of factionalism in the ANC work more efficiently than they have in the past, Ramaphosa could be ousted before his first and (possible) second terms as national president have run their course.

A great deal is currently riding on the final outcome of the investigation by the Public Protector into the truth behind the Watson donation and whether Ramaphosa misled Parliament about its provenance or placed himself at risk of a conflict of interests given Bosasa’s chequered past under the leadership of Watson. With the disreputable Mabuza at his side and the dark clouds of the circumstances of the Watson donation hanging over his head, Ramaphosa may accurately be described as less than free to follow through on the promises of his “CR17” campaign in the content of his SONA address. Those promises envisaged a “new dawn” and the spirit of “Thuma Mina” to which Ramaphosa referred when he first addressed the fifth Parliament as president of the nation in February 2018. It is on Ramaphosa’s promises of clean government, an end to the culture of impunity and the establishment of strong anti-corruption machinery of state that this note on SONA June 2019 focuses. That these changes are needed to empower the state to claw back the proceeds of malfeasance, end the endemic wrongdoing and stop the misappropriation of public funds by looters in the private and public sectors is beyond question. Indeed, the state is in danger of failing if remedial steps are not taken to repair the damage done by and after the early Zuma-era decision to dissolve the Scorpions and to replace them with the wholly ineffective and inefficient Hawks, whose track record on combating grand corruption is both ever-diminishing and utterly woeful. The risk of failure of SOEs such as Eskom, SAA and the SABC presents a real and present danger to the country.

The “CR17” clean governance campaign acknowledged the need to correct the path followed during what Ramaphosa has accurately referred to as the “wasted Zuma years”. The campaign had the potential to avoid the looming junk status downgrades by the rating agencies and the concomitant need to approach the IMF for a loan to get SA out of the hole dug after the Hawks took over from the Scorpions. It is an understatement to say that the SONA was underwhelming on the topic of countering grand corruption. The president appears to have sub-contracted the necessary new policy making and restructuring to a yet-to-be-appointed official and to the hard-pressed National Director of Public Prosecutions. To boast that a special tribunal will, at some future undetermined dates, consider civil recovery of the loot of State Capture to the value of R14.7-billion is to Band-Aid the trillion-rand-plus haemorrhaging of public funds. Dreams of building new smart cities will remain dreams while the public procurement system is shot through with grand corruption of the kind practised by the Gupta and Watson families.

It bears remembering that the Scorpions were closed down essentially because they were sufficiently independent to investigate, without fear, favour or prejudice, ANC big-wigs like Jacob Zuma, Jackie Selebi, Tony Yengeni, the Travelgate fraudsters and John Block. The culture of impunity grew exponentially during the Zuma period, blossoming into State Capture by the Gupta and Watson families, among others.

The fiefdoms created in the provinces of Mpumalanga, Free State and the North West were enabled by allegiance to the Zuma faction of the ANC. DD Mabuza is reported to have paid for one of the many weddings of Jacob Zuma, the ill-fated Estina dairy project in the Free State helped finance a Gupta extravaganza wedding at Sun City, while the North West health department wasted billions on mobile Gupta-inspired health clinics.

Through all this, the Hawks stood idly by. Instead of busying themselves investigating State Capture, they aided and abetted those capturing the SOEs and Treasury by persecuting Pravin Gordhan and others on trumped-up charges. Gordhan has been given a clean bill of health by the Nugent Commission and the former NDPP Shaun Abrahams as well as a handsome apology by retired Judge Kroon, who acknowledges he erred in fingering Gordhan. The Public Protector, to the contrary, insists he still has a case to answer.

It should be noted that, during their short existence, the Hawks have had three different incarnations. First came the organisation Parliament substituted for the Scorpions; then came the judgment of the Constitutional Court impugning the Hawks as inadequately independent to be an effective and efficient corruption buster. Next, there was the reluctant remedial legislation, which was again struck down in part by the same Court. Finally, in their current form, the Hawks operate on the basis of the Court’s editing of the remedial legislation, still as part of SAPS and still under executive control. If the new dawn of clean governance is going to be anything more than a false dawn, it is obvious and essential that an anti-corruption entity that is compliant with the criteria set by the Court, not only in theory, but in practice, is required. The new Investigative Directorate in the NPA, headed by Hermione Cronjé, is not compliant with the criteria and never can be because it is firmly under the control of the president himself. That may be handy for the likes of Zuma and Mabuza, but it does not sit well with a president who professes to be a campaigner for clean governance.

To achieve that happy state it is necessary to establish an entity which is dedicated to and specialises in anti-corruption work. The new entity must make use of trained personnel who enjoy security of tenure of office and are properly resourced in guaranteed fashion. Most importantly, it must be able to function without executive influence or interference, independently and without fear, favour or prejudice. It must be free of executive control.

The Scorpions were endowed with these characteristics, with the exception of their security of tenure of office. As mere creatures of statute, they could be, and were, closed down at the behest of a simple majority in Parliament. This unhappy feature is unlike the position of the Chapter Nine Institutions, which can only be changed, or closed down, with a special majority of two thirds. The Cronjé directorate can disappear “magically” at the whim of the president.

Significantly neither the Hawks nor the new Cronjé-led directorate received any mention during the SONA.

In March, Ramaphosa, while answering IFP questions in Parliament, gave some hope to constitutionalists when he remarked that the idea of a new Chapter Nine Institution, The Integrity Commission, to act as investigators and prosecutors of grand corruption, was “refreshing” and that he would “mull it over”. The idea is not new; it has been advocated by Accountability Now since 2012. Optimists might have hoped that the “mulling over” would be reflected in SONA, but not a peep was heard. After all, Ramaphosa has been assisted in his mulling by the contents of a communication from Accountability Now, dated 25 March 2019, which reads: Dear Mr President,1.According to media reports, you have established an Investigative Directorate (the Unit) within the National Prosecuting Authority (NPA) to deal with grand corruption. 2.We have publicly expressed our reservations about the constitutionality of this tactic in the war on the corrupt:www.accountabilitynow.org.za/?s=Poplak”s&submit=Search. www.accountabilitynow.org.za/can-shamila-batohi-revive-a-dying-npa/. www.accountabilitynow.org.za/why-cyrils-state-capture-squad-will-almost-certainly-fail/. 3.Our main concern around the constitutionality of the Unit is that it is under executive control and accordingly unable to exercise the type of independence of action that the law requires in accordance with the criteria set by the courts.4.In this regard we refer you to the decisions of the Constitutional Court in the cases generally known as Glenister II and Glenister III. For present purposes it is sufficient to say that for the purpose of preventing, combating and investigating corruption, a single unit that is “STIRS compliant” is required by law.5.This STIRS acronym refers to the qualities of the required mechanism. It must be specialised, well trained, independent, properly resourced and secure in its tenure of office.6.The Unit is not independent, it lacks resources and by its nature it does not enjoy security of tenure of office as its members will serve at executive pleasure. The Unit’s mandate is also limited by what the President includes and excludes from the scope of its work. There is also no evidence of a budget for training personnel. The only one of the five criteria the Unit notionally satisfies is theoretically that of specialisation, but the new National Director of Public Prosecutions (NDPP) has her reservations about the quality of the prosecutors who are supposed to deal with grand corruption: www.citypress.news24.com/News/npa-boss-batoyi-questions-prosecutors-skills-ability-to-deal-with-corruption-cases-20190318. 7.In these circumstances, the constitutionality of what you propose is highly questionable for the reasons set out in the preceding paragraphs.8.Accordingly, given the reservations of the official opposition and the NDPP, we respectfully suggest that the new Unit be dissolved and that the legislature should establish a new Chapter Nine Institution to prevent, combat investigate and prosecute grand corruption. You were apparently considering such a body favourably after Narend Singh MP raised this at question time in the National Assembly earlier this month. You referred to the notion as “refreshing”.

9.The ANC has its own integrity committee, and the country also needs an Integrity Commission urgently. We have long advocated the establishment of the commission as can be seen from the “Glenister case” page of our website www.accountabilitynow.org.za. 10.Serious practical difficulties will arise if the current plan is put into operation. As you know, the Moloi Board of Inquiry into the fitness for office of Bheki Cele, your minister of police, found him “incompetent and dishonest”. It also recommended that he be investigated for corruption. This recommendation, which has not yet been acted on, should form part of the work of the Unit you propose. In similar vein, Michael Masutha, your minister of justice, signed off on the termination of the services of former NDPP Mxolisi Nxasana in circumstances that amount to a corrupt activity which has already been found to be illegal in civil proceedings that culminated, on appeal, in the Constitutional Court. The criminal complaint we have lodged against him has languished in the bowels of the criminal justice administration since July 2015 despite being drawn to the attention of the then Secretary General of the ANC. We resorted to this step as the politicians implicated are deployees of the ANC and the criminal justice administration is dysfunctional as was pointed out by Johnny De Lange MP during the debate on the dissolution of the Scorpions at a time when he was deputy minister of justice in the Mbeki government. See: www.accountabilitynow.org.za/email-to-gwede-mantashe/. 11.Accountability Now and numerous other organisations including the Economic Freedom Fighters and the Democratic Alliance have also all separately complained about the criminality manifest in the Nkandla debacle. Our complaint dates back to 2013. No apparent progress has been made by the criminal justice administration in any of these matters.12.An independent mechanism would be astute in swiftly tackling these long outstanding matters.13.We reserve the right to move the High Court to declare the Unit unconstitutional, and to give the Legislature a reasonable period of time to establish a constitutionally compliant anti-corruption mechanism. 14.An Integrity Commission of the kind which you said you were prepared to consider would be superior by far to the limping, unbudgeted for and under-resourced Unit. We can only assume some of those who have been advising you are acting under a serious conflict of interests. The trajectory of the ANC on the issue of grand corruption is quite clear as appears from the Nasrec resolutions quoted by Ferial Hafffejee in her response to calls by ANC elders for an ethical approach to the compiling of party lists. See: www.dailymaverick.co.za/opinionista/2019-03-25-dear-elders-the-anc-wont-listen-to-anyone. 15.An early announcement of your commitment to the idea of an Integrity Commission will demonstrate your genuine commitment to the rule of law and illustrate the desire of your government to walk the walk of its anti-corruption talk and to disengage from executive control of the anti-corruption machinery of state so as to enhance its structural and operational functioning. 16.Moving swiftly to establish the Integrity Commission will help restore business confidence, save the nation from “junk status”, renew interest in investment in the SA economy, help create jobs and restore the badly shaken trust which the public once placed in government. This trust has been badly undermined by corruption and incompetence, “load shedding” and illegal cadre deployment during what you have correctly called the “wasted Zuma years” and it is incumbent upon you to work hard to restore it.17.As you know, the true test of good leadership is the ability to make unpopular decisions. The establishment of an Integrity Commission is bound to be unpopular with those who are involved in state capture, grand corruption and kleptocracy. All the more reason for establishing it.

18.Of high importance is that the Integrity Commission could be capacitated and assisted to recover the loot of state capture wherever it may be in the world. Nothing has been done yet to do so, despite Minister Gordhan’s estimate that the amount involved could be as high and one and a half trillion rand. Even if only half of this amount is recovered, it will do a power of good to the solvency of the country.

19.It is a well-established academic and scientific truth that corruption and kleptocracy are absolute and corrosive obstacles — anywhere in the world that they occur — to peace, social justice, good governance, economic development, reconstruction, redistribution and population health and well-being. It is now emerging that perhaps one-third (1/3) of South African Gross Domestic Product (GDP) — in other words over 30% of the total South African economic “pie“ —has been wasted, stolen and consumed by grand corruption, state capture and kleptocratic crime in our young democratic country. This situation has already had devastating socio-economic impacts on our people, especially among those who are poor. This impact will be felt for decades to come. It is thus hard to conceive of a more urgent and greater priority for your focused, determined and constitutionally lawful action as our President. 20.If you require further information from us, we are happy to oblige.21.Kindly acknowledge receipt of this communication, and let us know what you plan in the light of the submissions we have made above. Within the limits of our capacity, we are happy to “Thuma Mina”. Although receipt of this communication has been acknowledged, there has been no substantive response from the president, either before or during his 20 June SONA. It is for the president to explain why this should be so. It is probable that the lofty promises of team “CR17” have been diluted by the alliance with DD Mabuza or by the exigencies of factionalism within the ANC. It is even possible that the president himself is the captive of the dark elements within his party. The ANC still adheres to the outdated precepts of its “national democratic revolution” which posit hegemonic control of all the levers of power in society. If Ramaphosa is not a pragmatist, but instead remains true to this ideology, as he may well do, then he is unable to countenance, let alone establish, an adequately independent body to counter the grand corruption which has the country in its grasp.

Party hegemony is ultimately aimed at the elimination of our free media, our impartial courts, our doughty Reserve Bank and our six independent Chapter Nine Institutions. That is what “hegemonic control” entails.

While the ANC proceeds with its customary “dexterity of tact” (which means “by sleight of hand”) with due regard to what it calls “the balance of forces” (which requires an answer to the question: “How much can we get away with at this stage?”), it is impossible for the cadres of the revolution (including the president) to establish an honest, meritocratic and pragmatic order in SA. Instead illegal cadre deployment in the SOEs and public administration will continue to perpetuate the ideologically outmoded and kleptocratic revolutionary activities of the wasted years of the nation’s past.

SONA says nothing of what is really required to get SA out of the hole it is in at present. A hole dug by the ANC. It is probably going to be necessary, if funding can be found, to litigate the state’s lack of compliance with the binding court findings in respect of our anti-corruption entity. No one believes that the Hawks are up to the task at hand. Neither is Cronjé’s Investigative Directorate because the president retains control of its future. It is not even properly funded at present and won’t be before October, if at all.

Is the president going, at some stage, to give a proper response to Accountability Now’s communication referred to above, or is our new emperor as unclothed as his predecessor? DM

Paul Hoffman SC is a director of Accountability Now.

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