Paul Hoffman SC, Director Accountability Now
23 November 2018
Mugabe Ratshikuni has correctly identified that part of the current malaise in SA is that “for too many the goal is to milk the system and get something for nothing.” That is the abuse of public office (or a position of power) for private gain, also known as corruption.
The underlying problems of corruption in governance can be traced back to the devotion of deployed cadres of the governing alliance to the values of the national democratic revolution. The aim of that revolution is to secure hegemonic control of all the levers of power in society. Not just in governance structures, in the professions, the mines and manufacturing sector, the banks, the land-ownership dispensation and the hearts and minds of all the people.
This aim is wholly inconsistent with the aims of the constitutional project upon which SA embarked when political emancipation dawned in 1994. The Constitution contemplates that public servants and SOE employees will be appointed by cultivating good human resource management and career development practices. Instead the revolutionaries rely on cadre deployment to the huge disadvantage of serious service delivery.
The Constitution requires openness, accountability and responsiveness, not the clandestine activities of Luthuli House cadre deployment committees who “recommend” their pick for deployment and invariably get their way in ANC controlled municipalities, provinces and at national government level as well as in SOEs. The results of that can be seen by observing closely the proceedings of the Zondo Commission, which will inevitably have something to say about the advisability of cadre deployment.
The object of deployment is to advance the revolutionary agenda, not to implement the values of the constitutional order agreed upon as a product of the National Accord and embodied in the interim and final Constitutions supported by the vast majority of political actors at the time. Instead of declaring the National Democratic Revolution over and won, the ANC led alliance has persisted with its attachment to the ideas of the revolution, no matter how at odds they are with the ideas that inform the Constitution.
While this national double standard is in place, it will be easy to justify the “get something for nothing” notion so often experienced now and to use the NDR as the excuse for undermining the constitutional project while milking the system for personal gain. There is no loyalty to the system.
The deployed cadres also have no loyalty to the people of SA nor are they true to the implementation of the Bill of Rights for the benefit of ordinary folk. The revolution requires that with “dexterity of tact” its hegemony must be sought; the constitution, very differently, requires a multi-party democracy under the rule of law in which there is a free press, an independent judiciary and the separation of powers between the various branches of government. These features are all inconsistent with the aims of the revolution.
A dream that is inconsistent with the values of the Constitution is a dream that is invalid; it is one that will repeatedly bump its head against the law and its enforcement by the courts. This inconsistency leads to the nightmares of corruption with impunity, governmental losses in litigation whenever its agenda strays from the course the Constitution requires, massive leakages in the procurement chain of the government due to irregular, unauthorised and wasteful expenditure, Life Esidimeni tragedies, children drowning in pit toilets at school and miners gunned down, not to mention the repurposing of the state and its near capture.
If the governing alliance wants to leave the rule of law and the Constitution, both currently our supreme law, in the dustbin of history, it knows it needs to command a 75% majority in the National Assembly to do so legally. Its prospects of doing so seem remote at present, which may lead to the destructiveness and greed that Rashikuni notes and bemoans. The Constitution ought to be home to the common values of all political parties; it is not at present, despite its legal supremacy.
This dichotomy sets up the tensions in society in which the poor and the unemployed expect that the state will, as is constitutionally promised, respect, protect, promote and fulfil all of the human rights guaranteed to them in the Bill of Rights. Service delivery protests, many of them violent, are organised and result in injuries, deaths and damage to state and private property. The basic education system is dysfunctional.
The police do not prevent and combat crime. The prosecutors do not take proper investigations by the police forward to successful prosecutions. The public procurement chain bleeds public money instead of operating according to a system that is fair, equitable, transparent, competitive and cost effective, as is required by the Constitution.
The culture of impunity abroad in the land is fanned by the dysfunctional aspects highlighted above and many others too. People see their comrades getting away with crime and feel emboldened to do likewise. It has been scientifically established that in any given large population there are 10% who are never corrupt, 10% who are always corrupt, and the rest can go either way depending on the circumstances. If the circumstances are as they have been during the Zuma years, corruption flourishes, dreams die and the quality of life of the poor is not better than it was in the pre-democratic era.
To restore dreams of the kind the nation so sorely needs, it is first necessary to deal with corruption. This work is more easily said than done. The pervasiveness of corruption in SA today means that a lot of well-connected people will have to be investigated fairly, prosecuted properly and punished according to law. This process will be a bitter pill for those currently in positions of power to swallow, but if they resist the need to establish the integrity of their movement, the trust of the public in their promises will be lost and the share of the vote they command will be reduced incrementally as corruption continues. Factionalism does not impress voters.
The dysfunction in the current criminal justice administration will also make it difficult to hold the corrupt to account in a manner that accords with what the law requires. Some of the leaders of the police and the prosecutors are themselves captured. The persecution of Pravin Gordhan be the Hawks and former NDPP Shaun Abrahams shows how debased the system has become. It will take years to clean out the crooks and re-establish a credible criminal justice administration.
There is however a glimmer of hope for those who still wish to dream, and dream big, for SA. As a strategy to circumvent the dysfunction in the Hawks and NPA, a malaise that still continues, it is advisable and indicated to create a specialised unit that has the clout and the capacity to deal decisively with grand corruption, kleptocracy and state capture. Establishing a well-trained elite organisation that complies with the criteria set by the courts is not technically difficult; the political will to do so is however required and can be generated if enough dreamers tell their political representatives, in person or via the ballot box, that they have had enough of the nightmares of the past and wish to live the dream in the future.
Establishing an Integrity Commission as a new Chapter Nine institution will tick the boxes of independence and security of tenure of office, simply by being in Chapter Nine. All the existing Chapter Nine Institutions are independent; the Constitution itself requires that they act without fear, favour or prejudice. In order to close down any Chapter Nine Institution a two thirds majority is required. If that had been the case for the Scorpions, they would still exist; instead they were unceremoniously closed down to enable the state capture project of the Zuma administration to continue unhindered. The Scorpions personnel and their ilk can be vetted and recruited for the Integrity Commission and it can get to work on the malaise that grand corruption and state capture have become in SA.
When the Integrity Commission has done its work and when the Constitution is properly implemented the biggest of big dreams will come true in SA.