On 17 May 2021 the ANC’s national disciplinary committee gave a clean bill of health to two of its Gauteng Provincial Executive Committee members, former health MEC Bandile Masuku and former presidential spokesperson Khusela Diko.
Both had been disciplined for nepotistic involvement in PPE tenders in Gauteng. Masuku remains fired as health MEC in Gauteng and Diko remains on suspension as presidential spokesperson pending a state enquiry, not an ANC internal disciplinary process.
The committee found that the Constitution of the ANC does not refer to nepotism, that nepotism is not a crime and that evidence in the disciplinary enquiry about it should be disregarded. Masuku gleefully announced that his faith in the ANC has been restored. Whether public faith in the ANC has also been restored is a different question that bears analysis.
According to section 217 of the Constitution those responsible for procuring any good or services for the state, including PPE are bound to do so in terms of a system that is “fair, equitable, transparent, competitive and cost-effective.” This basic rule is tempered by provisions that allow for categories of preference and “the protection of advancement of persons, or categories of persons, disadvantaged by unfair discrimination.”
Making nepotistic preference of family members “kosher” is not what the founders of the Constitution had in mind with these provisions of our supreme law. It can never be fair, equitable or competitive to simply award tenders on the basis of nepotism.
Transparency demands that the family relationship be announced up front, not discovered later, and that the competitiveness requirement is applied to ensure that the lowest bid in the tender process is the one that wins.
All too often horror stories emerge that reveal that the well-connected (whether by nepotism or cronyism) win tenders at hugely inflated prices and then sub-contract to the honest and genuine tenderers to do the work, skimming off an astronomical profit for inserting themselves into the process without doing anything other than asserting their political connectiveness and collecting the loot.
These practices may advance persons disadvantaged by unfair discrimination, but tenderpreneurism in all its forms is not what the Constitution contemplates. Nepotism and cronyism cannot be accommodated in the procurement of goods and services for the state on any proper interpretation of the provisions of section 217 of the Constitution, not in a system of governance that is required to be open, accountable and responsive to the needs of the people.
Nepotism, so named after the practice of Popes to advance the careers of their nephews, sets up the type of conflict of interest that the law does not allow. Indeed, our constitution goes further by frowning upon the risk of a conflict of interests. This is what section 96 has to say about the standards applicable to the national cabinet:
“Members of cabinet and deputy ministers may not
Undertake any other paid work;
Act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
Use their position or any information entrusted to them to enrich themselves or improperly benefit any other person.”
When the family member of the official on the carpet has obtained a windfall via tenderpreneurism that is combined with nepotistic tender awards to that family member, there is more than a risk of conflict, there is actual conflict between the high ethical standards required in law and the acquisition of the windfall.
Of course Masuku and Diko were not on trial in the courts of the land, they faced disciplinary charges under the constitution of the ANC, a different scenario in which different rules apply. The committee drew attention to rule 25 of the ANC constitution in coming to its surprising finding. Rule 15.17.4 reads:
“Engaging in any unethical or immoral conduct which detracts from the character, values and integrity of the ANC”… that brings the ANC into “disrepute”.
It is plain that nepotism and cronyism are covered under the rubric “unethical or immoral conduct” and the failure of the committee to understand and apply this interpretation of the words quoted above says a great deal about the slippage of standards in the ANC.
Also, it must be borne in mind that the adjudication is not one of law but of the ethical and moral standards at play in the day to day lives of loyal cadres of the ANC. Open season on nepotism and cronyism has been declared by the rulings made and will add fuel to the fires of the generally held public perception that the ANC is an organization infested with unethical and immoral characters who are allowed to get away with their unethical and immoral behaviour simply because the rules of the ANC are given impossibly narrow and legalistic interpretations.
Opposition parties must be licking their lips in anticipation of scoring points against the ANC due to the lack of regard for integrity inherent in the rulings made in the cases of Masuku and Diko.
The rulings made also reflect the loss of the moral compass of the ANC. A “too little too late” directive has been given to educate cadres in the niceties of ethics and morality in the tender system. Hopefully, the proper interpretation of the provisions alluded to above will feature in the curriculum.
The only ray of light in the entire saga is that President Ramaphosa has let it be known that his spokesperson, Diko, remains on suspension in the office of the presidency and that Tyrone Seale will continue to perform her duties while a governmental inquiry into her misconduct remains pending.
It is to be hoped that the findings for Masuku and Diko announced by the national disciplinary committee are treated by the ANC as the aberration that they are.
The findings reflect poorly on the standards of ethics and morality that are currently in place in the ANC. Its integrity as a political organization is impacted negatively by the findings and the need for corrective action ought to be apparent to the leadership of the ANC.
Paul Hoffman SC is a director of Accountability Now. His new book “Countering the Corrupt” is available for free download from the homepage of www.accountabilitynow.org.za