By Paul Hoffman

12 Feb 2023

Paul Hoffman SC is a director of Accountability Now.

With service delivery crumbling on all levels from local to national, ever-longer interruptions of the electricity supply, trains that do not run, potholes that do not get repaired and civil servants who are neither civil nor of service, it is no wonder the anger levels in the land are ratcheting up at an alarming rate.

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Accountability, in the political context in which it is used in South Africa, means that those responsible for governance are able to justify their decisions rationally and show that their actions and conduct are reasonable.

In section 1 of the Constitution, reference is made to a “multiparty system of democratic government to ensure accountability, responsiveness and openness”.

These notions are foundational values of the dispensation created by the Constitution, which is our supreme law. All too often they are honoured in the breach. The fact that we have had a dominant party state, which some observers now opine is transitioning to a mafia state, does not detract from the binding nature of our supreme law.

In section 2 of the Constitution, it is recorded that “law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled”. Section 237 goes on to lay down that constitutional obligations “must be performed diligently and without delay”.

In the Bill of Rights, it is recorded that “the state must respect, protect, promote and fulfil the rights in the Bill of Rights”. Some of the more expensive rights are subject to progressive realisation in the light of available resources.

When the state’s resources are subjected to the wholesale looting of State Capture, there are fewer resources available for service delivery aimed at making the Bill of Rights the lived reality of all who live in SA.

The rights conferred upon all by the Bill of Rights are compendious and the envy of all freedom-loving people. Our Constitution is widely regarded as the best in the world. We would be well advised to use it, and the institutions it has established, to better effect than has hitherto been the case.

All of the Chapter 9 institutions, for example, exist to support and strengthen constitutional democracy under the rule of law. Using their services is free to all who detect maladministration or feel that their human rights are infringed or threatened in any way.

The Office of the Public Protector has the constitutionally conferred right to take binding remedial action by directing any errant state functionaries to take appropriate steps to redress valid complaints falling within its remit. The office accepts anonymous complaints too, but does not have jurisdiction over court decisions.

After the Arab Spring, US Supreme Court Justice Ruth Bader-Ginsburg was invited to visit Egypt and advise on constitutional reform. She counselled her audience to ignore the 200-year-old American Constitution in their deliberations on a new dispensation and instead to have regard to what had been done in South Africa. High praise indeed!

Human dignity given pride of place

Accountability comes into sharp focus at election time. A conspectus of what the Constitution promises ordinary people reveals a non-racial, non-sexist order in which inherent human dignity is given pride of place.

The enjoyment of all those human rights by all is anticipated, with the promotion of the achievement of equality in a society that aims to heal the divisions of the past by improving the quality of life of all citizens through freeing their potential.

A professional and ethical public administration is supposed to act effectively and efficiently to deliver services to the people accountably, transparently and fairly. The state-owned enterprises (SOEs) are also bound by the same values and principles as set out in section 195.

A better life for all is envisaged with an impartial and independent judiciary presiding over disputes that may arise among those striving to be united in their diversity.

Equality before the law, free and independent media and a better life for all are the promises the government is meant to fulfil. Healthcare, access to housing and free basic education are all provided for in the Bill of Rights.

The exacting of accountability from politicians by the voting public has not really come about in South Africa. Too many people do not vote at all, whether out of ignorance, disinterest or disgust. The governing alliance has started to run out of the “liberation dividend” that it initially enjoyed and its support is waning.

The opposition parties are a generally disorganised bunch of politicians who cherish the hopes inherent in coalition politics which may or may not be our future as a nation. Some are to the left of the governing alliance, others to the right.

Differing value systems are going to make coalitions difficult unless they are essentially based on fealty to the values of the Constitution and to finding ways to deliver services required to make the promises of the Bill of Rights the lived reality of the people.

The challenges of power cuts, 55% of the population living in poverty, unemployment and failure of service delivery in ways that perpetuate and exacerbate inequality, are the challenges any coalition or winning party will have to face squarely if the downward trajectory on all fronts is to be reversed.

Because of “wall-to-wall” proportional representation, those holding political office feel beholden to the party and its officials who control the party list and they neglect their voters in their striving for a higher spot on the party list.

In the last national election, more people did not vote than voted for the governing alliance. If accountability is going to play any significant role in the next general election it will be necessary for all political parties to address the hopes, the concerns, the fears and the anger of those who choose not to vote.

These are not easy tasks. With service delivery crumbling on all levels from local to national, ever-longer interruptions of the electricity supply, trains that do not run, potholes that do not get repaired and civil servants who are neither civil nor of service, it is no wonder the anger levels in the land are ratcheting up at an alarming rate.

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Causes and symptoms

Increases in fuel and food prices, increasing unemployment, grinding poverty and the hopelessness of the unemployability of the young are all conspiring to raise the political temperature in the land.

Astute politicians will look for the causes for these symptoms of the dysfunction that are so apparent.

Some may confuse causes and symptoms. The higher prices, the 55% living in poverty and the scarcity of jobs, when combined with dry taps and lights that stay off incessantly, are all symptoms — the major causes of the national malaise are corruption, incompetence and inappropriate ideology.

Of the three, corruption is the most insidious. Corruption is a secretive bilateral or multilateral criminal activity involving the misappropriation of a great deal of public money as it occurs, has occurred and will continue in South Africa unless urgent remedial steps are taken to address it.

The main victims of corruption are the poor. They often do not realise that they have been stripped of their rightful entitlements. So, for example, when funds for sub-economic housing were diverted to pay for the unorthodox and illegal enhancements to the Nkandla spread of Jacob Zuma, the people who did not get their houses did not know why.

The political parties that come up with manifestos that address corruption squarely and proactively ought to be supported at the polls, if their proposals are constitutionally compliant. Those who downplay or even ignore corruption do not deserve a vote.

As a service to the voting public, Accountability Now will provide analysis of the anti-corruption position of the manifestos of the main protagonists in the 2024 elections. Preliminary observations are already appropriate.

Voters should look out for manifestos that are alive to the requirements of the law as regards countering the corrupt. Parties that show an appreciation of the binding nature of the criteria laid down in the Glenister litigation by the Constitutional Court (but never implemented by the governing alliance) are worthy of a vote, those that seek to continue with business as usual or to feign fealty to the law should be identified and shunned.

As matters stand, some of the new formations have yet to state their positions. The Defend Our Democracy campaign does endorse the idea of an entity in Chapter 9 of the Constitution to counter corruption.

The IFP has, since 2019, supported the establishment of a new Chapter Nine institution to prevent, combat, investigate and prosecute serious corruption cases. The DA has prepared a private member’s bill to similar effect this year. The EFF is vague about the mechanics of its anti-corruption position but very vocal about what it perceives to be corrupt activities of its political opponents.

The ANC’s National Executive Committee in August 2020 passed an urgent resolution instructing the Cabinet to establish a stand-alone permanent and independent anti-corruption body. The Cabinet has not yet acted on the resolution. Instead, it has announced an intention to make the Investigating Directorate (ID) in the National Prosecuting Authority (NPA) a permanent body within the NPA, not a stand-alone body. Currently, the ID serves at the pleasure of the President.

This step would replicate the position in which the Scorpions found themselves in 2007. It will not accord with the ANC’s 2020 resolution mentioned above nor with the law.

The Scorpions were at the mercy of a simple majority in Parliament. That is part of the mischief the Glenister rulings address. The majority was commanded by the ANC, whose members had featured in many of the corruption investigations conducted by the Scorpions.

The Travelgate affair had seen many MPs convicted for defrauding Parliament. Both Tony Yengeni and Schabir Shaik were convicted following their illegal involvement in the Arms Deal. The new leader in 2007, Jacob Zuma, was facing 783 counts of corruption, fraud, money laundering and racketeering. He still is in 2023.

The ANC did not want the Scorpions to continue their good work and used its majority in Parliament to terminate their activities.

Upgrading the ID should be seen for what it is: an underwhelming display of lip service to the law and a wholly inadequate response to the criteria, particularly the secure tenure of office criterion, laid down in terms that bind the government in the Glenister litigation.

It seems that the minister of justice prefers the reasoning of the minority judgment, but it (the so-called Main Judgment in Glenister 2) is manifestly not a binding statement of the law.

Backlog in corruption prosecutions

The criteria prescribed by the majority of the court in that case have not been properly in place at any time since the demise of the Scorpions. Hence the huge backlog in corruption prosecutions.

The law expressly requires that an order or decision issued by a court binds all persons to whom and all organs of state to which it applies.

If (and they may not, out of self-interest in re-election) the ANC members of Parliament follow the lead of the Cabinet and vote in favour of the upgrading of the ID, that will be a good reason not to vote for the ANC in the next general election. If the matter is fudged away or postponed, that too is a good reason not to vote for the ANC because urgent action is required now.

The State of the Nation Address plan for reform puts the country back where it was before the Scorpions were summarily disbanded for their want of secure tenure of office, with this important exception: no self-respecting expert in any aspect of anti-corruption work will want to work for an entity that could be closed down in the same way as the Scorpions met their institutional demise. One consequence of the NPA’s inability to recruit trained specialists will be that corruption with impunity will continue.

The more voters who insist that the party they support has a manifesto that commits to proper and complete enforcement of the Glenister criteria for countering corruption, the better. By so deciding they will be doing their bit to ensure accountability in government.

The recovery of the loot of State Capture can lead to a better life for all. There are more than a trillion rands of loot to target. So far, the NPA has recovered R7-billion and has frozen nearly R13-billion. South Africa has a long way to go. DM