Paul Hoffman SC, Director Accountability Now
5 May 2019
Professor Pierre de Vos has suggested that Cyril Ramaphosa, deputy president under Jacob Zuma and now president since February 2018 as well as possibly president for another 10 years, will be too constrained by the politics of patronage and factionalism within the ANC to do anything useful about countering corruption in SA. This rather dismaying prognosis, based upon the bleak opinions of Karl von Holdt, had better be wrong if any ‘better life for all’ as promised in the Constitution is to materialise in the beloved country.
The learned professor refers to corruption as a “scourge”. It is more than that. Corruption is a crime punishable by law. Countering corruption adequately, effectively and efficiently is a human rights issue in South Africa. This has been so since 2011 when the Constitutional Court so interpreted the obligations of the state to respect and protect human rights as to require the state to arrange its affairs so as to deal appropriately with the corrupt.
The court joined the dots between failure of service delivery (and with it the promotion of human rights guaranteed to all in the Bill of Rights) and rampant grand corruption. While Jacob Zuma has suggested, in his representations to review the decision to prosecute him, that corruption is a victimless crime, the truth is that it is the poor that are the victims of kleptocracy, grand corruption and State Capture, the most vicious forms of corruption.
This sad state of affairs leaves aspirant farmers in Vrede shaking their heads sadly at the excesses of a Sun City Gupta wedding which was financed by funds intended for their dairy enterprise. They are the victims of the corrupt diversion of the funding of their project to the politically connected involved in the Zuma era patronage network.
The ANC is an organisation that is approximately one-million strong. The population of the country is about 58-million. Some 55% of the population lives in poverty while the corrupted elite lord it over them, driving in swanky cars, partying in posh nightclubs and drinking expensive liquor to excess.
Those in the ANC who are involved in grand corruption, State Capture and kleptocratic activities in the public procurement supply chain number in the thousands, not the millions. It is quite unconscionable that the population of the country should be held to ransom by so small and tacky an elite. The Constitutional Court warned of the consequences in its 2011 Glenister judgment:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. “It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society are put at risk.”
When the court revisited the issue of corruption in 2014 it was no less strident in its condemnation of the malady:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.”
Professor de Vos is gloomily prognosticating about the malady of corruption claiming the life of constitutional democracy in SA. A nasty and brutish alternative in a failed state beckons all who surrender, and who stand by as the state surrenders, to the ravages of grand corruption.
The Zuma-era idea of using the Hawks as the elite unit to counter corruption has clearly failed. The stripping out of the investigative functions of the NPA, performed through the Scorpions, was clearly counter-productive in the fight against corruption. The capture of the criminal justice administration during the Zuma era; its re-purposing to protect and afford immunity from investigation and prosecution to the politically connected have given rise to the culture of impunity in the land.
Currently, the Minister of Police is a former Commissioner of Police who was fired for his incompetence and dishonesty. The Minister of Justice signed off on the invalid and corrupt deal in terms of which a former National Director of Public Prosecutions was relieved of his post for showing a willingness to prosecute Jacob Zuma if the DA’s review was successful, as it eventually was on 13 October 2017.
These factors are all circumstances that militate against success in the necessary war on the corrupt. However, the problems are not insurmountable. The President must choose new cabinet ministers after the elections; he should appoint those who are not tainted in any way.
He has the power to reform the criminal justice administration in a manner which effectively by-passes the morass left by the ravages of Zuma appointees (some of whom have recently received their comeuppance). This worthy goal can be achieved by removing grand corruption, kleptocracy and State Capture from the jurisdiction of the police and the prosecution service.
Instead, a specialised and dedicated unit consisting of well-trained investigators, forensic experts and prosecutors, all of whom enjoy security of tenure and independence from executive control and political interference, must be established as the first order of business of the sixth Parliament of the new SA.
Legislating such a body into being will give expression to the best practice solution possible and it will surely enjoy the support of all opposition parties in parliament as it is the best way to comply with the criteria set in the Glenister litigation.
Accountability Now has long advocated the establishment of a new Chapter Nine Institution which it chooses to call the “Integrity Commission” or “Eagles” – the latter nickname to distinguish it from the Hawks. Eagles do fly higher, see further and capture bigger prey than hawks are capable of doing.
By constitutionally entrenching the new body in Chapter Nine it renders it impossible to do what the Zuma government did to the Scorpions. A special majority, not a simple 50% plus one, is what is required to close down a Chapter Nine Institution. Draft legislation is available on the Glenister case page of the website www.accountabilitynow.org.za
Instead of making dark predictions, the learned professor should deliver his critique of the Glenister cases and of the draft legislation.
With the necessary political will, it is possible to deal appropriately with the corrupt who populate the current political elite. They are not indispensable (vide Zuma himself) and they are not above the law. The law must be adjusted to make it work for the people, not the crooked elite.
Cyril Ramaphosa knows that corruption is not a sustainable model for running a modern constitutional democracy successfully. Job creation thrives in circumstances in which there is trust in strong institutions, integrity in governance systems and confidence in the ability of the state to uphold the rule of law.7
Bring on the Integrity Commission and stop the negative whining, please.