The 28th anniversary of the speech to Parliament that changed the trajectory of politics on February 2 1990 was celebrated by the FW de Klerk Foundation by holding a conference with the upbeat title Beyond State Capture and Corruption, with a galaxy of powerful speakers. The tone was generally more celebratory than analytical; even the announcement that rain was falling at Century City as the conference began (sadly only enough to turn the dust on delegates’ cars into streaky mud) was met with relieved applause.
In his opening salvo, De Klerk himself stressed the utility of the Constitution as a uniting factor and repeated the mantra “leadership with integrity” several times. Indeed, the lack of leadership with integrity is both a past and a present problem in the upper echelons of the ANC, given the track record of President Jacob Zuma, the current Hawks investigation of Ace Magashula and the civil antiharassment interdict obtained against DD Mabuza. It is quite remarkable that two of the new top six of the ANC should find themselves in so awkward a position so soon after their election, with the ANC integrity committee tjoepstil on the topic of their suitability to lead the ANC with integrity.
University of Cape Town economist Prof Haroon Bhorat, a co-author of the Betrayal of the Promise report put out by the Public Affairs Research Institute last May — the one that introduced SA to the concept of a “silent coup” in the country — brought the report to life for those who had read it and gave encouragement to those who had not put it on their reading lists.
Bhorat’s focus was on the methods used to undermine the rule of law through the pursuit of a greed-driven private wealth accumulation agenda in governance of the state and state-owned enterprises.
Thuli Madonsela, the former public protector and author of the State of Capture report and who is now a Stellenbosch academic in the field of social justice, gave a message of hope centred on the notion of re-anchoring democracy in people power. Her main point was that to be sustainable democracy must work for all. She mentioned the oft-quoted words of Judge Dennis Davis: “A conception of democracy which is committed to a notion of freedom and dignity, self-rule and self-respect must entail a commitment to a form of political practice that guarantees to each person the basic social conditions required for the fulfilment of these conditions.”
The final speaker, Frans Cronje of the Institute of Race Relations, was able to highlight features of the socioeconomic progress in SA since the change in the constitutional dispensation that suggest things are not as bad as the chattering classes would have it. Polling results illustrate that jobs are the first priority of most respondents; the number of people in jobs has risen from 8-million to 16-million under the new dispensation.
Interestingly, since De Klerk gave his 1990 speech the ratio of black-to-white engineering graduates has changed from 1:40 to 80:40 without the number of white engineers who graduate each year dropping.
Cronje, relying on detailed polling data, is convinced that race relations in SA are not nearly as fraught as the Twitterati portray them to be. Some 80% of respondents were happy to tick the box that suggests: “We need each other.”
What, you may ask, does any of this have to do with getting beyond state capture and corruption?
Given the nonconfrontational ethos of his foundation, it was fairly outspoken of De Klerk to stress the importance of leadership with integrity and the need for strong institutions of state. One of the UN’s sustainable development goals is exactly that: the need for institutions that actually work well is central to sustainability.
A clash of views on the remedy for the lack of accountability in politics emerged when Justice Johann Kriegler pleaded “if it ain’t broke, don’t fix it”, in relation to the electoral system, which was targeted by De Klerk and others for reform aimed at diluting the dire effects of proportional representation across the board. Kriegler pointed to the individuals in the institutional system as the culprits, not the system itself. Madonsela and Cronje respectfully disagreed.
It will be impossible to get beyond state capture if those responsible for it are allowed to get away with it. Not only will this encourage others to join them, but their protection by crooked cops and less-than-diligent prosecutors will leave the entire system of governance infested with both successful and would-be capturers of the state. It is, on past showing, the easiest way to get rich quickly. No wonder so many disadvantaged schoolchildren have ambitions to go into politics.
While the hand-picked officials in the Hawks and National Prosecuting Authority are still in their posts, however tenuously, the rot will continue, the protection of the corrupt in high places will remain secure and the threat of failure as a state will endure. A better future in which peace is secure, progress is sustainable and prosperity is equitably shared is not possible unless the anticorruption machinery of state is adequately independent of the executive branch of government, properly resourced and sufficiently specialised to acquit itself of the task at hand effectively, efficiently and economically. These features are required by the Constitution, as interpreted by the Constitutional Court in the Glenister litigation in 2011 and 2014.
The state has honoured the requirements laid down in these cases in the breach. Instead of properly capacitating the Hawks, a hydra-headed monster called the anticorruption task team was invented in 2010, drawn from a plethora of institutions and in effect under the influence and control of the executive. It should come as no surprise that the task team has never run an opposed criminal trial in all the years of its existence. No big fish have been landed by it.
With disgraced individuals such as former Hawks head Berning Ntlemeza and former National Prosecuting Authority deputy and advocate Nomgcobo Jiba at its helm, it is no wonder that the task team has been so dysfunctional. It is also unconstitutional to partially transfer the legislated functions of the Hawks to such a body. The court requires a specialised and trained entity — a single entity — to do the work of the state in addressing corruption.
As Chief Justice Mogoeng Mogoeng trenchantly put it in a 2014 judgment: “Corruption is rife in this country … stringent measures are required to contain this malady before it graduates into something terminal. We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
From 2010 to 2015 the rates of arrests made by the Hawks fell from 14,793 to 5,847 a year. Conviction rates in the same period fell more precipitously. It is clear that the Hawks are not delivering on the “core mandate” to which the court refers. It is also likely, given the Hawks pre-occupation with dirty tricks, that the rates have declined further in more recent years.
The Hawks are, to borrow from Justice Kriegler’s phrase, “broke” and they need to be “fixed”. One thing is certain: we will not get beyond state capture and rampant corruption if the dysfunction in the Hawks and the National Prosecuting Authority is not urgently addressed.
That task is the nettle the new leadership of the ANC is obliged to grasp. The noises made so far are encouraging; the actions are yet to come. Side-stepping the institutional mess by creating a new integrity commission is the institutional “fix” that Accountability Now has pleaded for since 2012. Perhaps its time has come.
• Hoffman, SC, is a director of Accountability Now.
Opinion editorial published in Business Day on 12 February 2018.