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Who enabled the Guptas?

As the contents of the Pandora’s Box of scandalous information tumbles out at the hearings of the Zondo Commission of Inquiry it is currently popular to hear of politicians in the Free State being blamed for enabling the Gupta family’s attempt to capture the State in SA.

It is historically clear that Rome was sacked by the Visigoths in 410 AD. It is now unlikely that the Guptas will go down in history as having successfully sacked SA. When the history of the Zuma years is unpacked and analysed it is more likely that the picture that will emerge will point unerringly toward the Polokwane Conference of the ANC, held as early as December 2007, as the event at which the cause of the rot was set in train.

The doings of the Zwanes and Magashules pale into insignificance, they are mere symptoms of the rot, when compared to the causative damage that was done when the majority of the delegates voted overwhelmingly for Jacob Zuma and for the disbandment of the Scorpions and their replacement by the Hawks. In one “urgent” resolution the capacity of the State to deal with grand corruption was dealt a near fatal blow. Those who piloted and proposed the resolution are the culprits. Team Zuma is to blame for causing the conditions that rendered SA ripe for capture.

When asked why the resolution to scrap the Scorpions was passed, then ANC Secretary General Gwede Mantashe explained to Helen Zille, then leader of the opposition, that the Scorpions were investigating ANC politicians, treated the ANC as the “enemy” and were operatives of the old order. He stoutly maintained that the investigation of Jacob Zuma was an “abuse of power” and insisted that the resolution would be implemented. It was.

The Hawks, a police unit, were and are still accountable first  to the incumbent Chief of Police, (the corrupt Jackie Selebi, so found by the High Court) and later to the “dishonest and incompetent” Bheki Cele (so found by the Moloi Board of Inquiry that forced JZ to fire him). The Hawks never stood a chance of matching the proud record of the Scorpions. No “big fish” were investigated, prosecuted or found guilty after the Scorpions were closed down, except in matters in which an investigation by the Scorpions preceded the conviction.

The Chief of Police is accountable to the Minister of Police. Cele, despite being fired for his dishonesty and incompetence, is now that minister. His predecessor is remembered for clashing with IPID head Robert McBride and for discovering a fire pool at Nkandla. Riah Phiyega spent much of her term of office as police chief under suspension for trying, unsuccessfully, to pull the wool over the eyes of the Farlam Commission into the shootings at Marikana in 2012.

None of these lines of accountability are conducive to the effective and efficient corruption-busting that is possible in SA when a strong and independent institution, answerable to our multi-party parliament is in place. The vacuum caused by closing down the Scorpions created the space for the corrupt to flourish. A culture of malfeasance with impunity grew and spread in SA. Procurement systems were debased and businesses keen to contract with the State and the State-owned enterprises became adept at paying back-handers to officials and politicians. The history of the Free State, A for Asbestos to Z for Zwane, is littered with the lurid examples of what is possible when probity and integrity in the conduct of the affairs of State are abandoned.

The situation now is not without hope. Two months ago, faced with the #voeksekANC campaign, the National Executive Committee of the ANC passed an urgent resolution which is the opposite of that passed at Polokwane in 2007. It calls on the national cabinet to establish, as a matter of urgency, a permanent separate entity that is independent and equipped to deal with corruption “without fear, favour or prejudice”. This is in line with what the law requires, as was established in the Glenister litigation that led to the Constitutional Court embracing the “STIRS criteria” for the state machinery that is tasked with seeing off the corrupt.

STIRS is an acronym for the qualities of the type of entity the NEC has ordered up:

Specialised and dedicated to tackling corruption to the exclusion of all other crimes

Trained, as the Scorpions were by the FBI and Scotland Yard, to outgun the corrupt

Independent of the interference and influence that the powerful (whether in politics or in business or in gangs) like to bring to bear.

Resourced in a guaranteed fashion to ensure that the means to do the job is available

Secure in tenure of office, so that they do not suffer the same fate as the Scorpions.

Instead of crying over the Estina Dairy milk being spilt at the Zondo Commission hearings, it is suggested that the media, the public, business, the civil society organizations, the faith-based sector and the opposition should be concentrating energy on seeing to it that the resolution of the NEC is acted on by cabinet with the urgency that the NEC required.

The best practice way of doing so is to establish a new Chapter Nine Institution to investigate and prosecute those involved in grand corruption. It is the only failsafe way to guarantee security of tenure to the entity the NEC desires. Without that security its independence will be open to doubt and its efficacy will be questionable.

It is strange that no word has emerged from the national cabinet regarding the steps it is taking to implement the resolution. The need to address the impunity abroad in the land is indubitable. The urgency of this need has been highlighted by the NEC. The will to act on the resolution ought to be encouraged at all levels. It is the best way to avoid the type of situation that led to the shenanigans that the Guptas indulged in with impunity.

Draft legislation was prepared in 2012 and has been made available both to the legislature and the executive. Action is needed as a matter of priority. The apparent inaction and the deafening silence of the cabinet are inexplicable. Offers to “Thuma Mina” are ignored. The loot of State capture goes unrecovered The looters go unpunished. The criminal justice administration remains under-resourced, under-capacitated, under-staffed and under-skilled according to what NDPP Shamila Batohi tells government. This is not the way to recover from the Zuma years and from the pandemic.

Paul Hoffman SC is a director  of Accountability Now and was lead counsel in the Glenister litigation. The draft legislation is available on the “Integrity Commission” page of the website www.accountabilitynow.org.za

29 September 2020

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