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Delay on anti-corruption reform is potentially fatal

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Delay on anti-corruption reform is potentially fatal

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6th December 2021

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The ongoing incidence of serious corruption with impunity in SA is a cause for concern. “Tenderpreneurism” has been supplemented by “Covidpreneurism” in an ongoing looting spree that threatens the very existence of the state. The ANC has, as has been pointed out before, devolved into a criminal enterprise. (https://accountabilitynow.org.za/anc-of-today-has-all-the-hallmarks-of-a-criminal-enterprise/)

None of those fingered during evidence at the State Capture Commission, during the Nugent Inquiry and by those investigating the affairs of the Public Investment Corporation currently face any consequences in any criminal court. Earlier inquiries, such as that into the fitness for office of police minister Bheki Cele, have their recommended criminal investigations ignored due to dysfunction in the system. No one has been charged for the malfeasance revealed by the Public Protector at Nkandla or by whistle-blowers in the arms deals.

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Even Seth Nthai, who has admitted on oath that he attempted to bribe an Italian businessman, sails on untouched by the criminal justice administration, and holds down a cushy job in the public administration.

There is a limit to the amount of looting that can be absorbed. Eventually the state can take no more and it fails. Once corruption becomes fashionable in high places, it tends to snowball into kleptocracy and state capture until there is nothing left to steal. The state of the national rail infrastructure, the fate of SAA, the mess at Eskom and the dysfunction at Denel and in many municipalities, for example, illustrate the point that there are finite limits to the amount of looting the state can take.

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The looting will continue until the corrupt are held to account in the criminal courts of the land. While impunity for corruption is the order of the day, as it has been for far too long in SA, the snowballing of corrupt activities will continue.

Surveying the poor showing of the ANC in the elections held on 1 November, Professor Raymond Suttner observes that:

“All of this points to the possibility or likelihood of the ANC losing power in the national elections of 2024. Internally, as an organisation, the ANC is not united and is unlikely – and possibly it is already too late – to pursue any self-examination of the type that could lead to a remedying of the problems that the electorate has obviously found with its performance in recent years.

“Self-correction” is not a realistic option, given that the organisation now has deep-seated tendencies towards criminality and corruption (that have continued after the removal of Jacob Zuma as president) and has demonstrated complete indifference to its electoral pledges and constitutional duties to better the life of the poor.”

John Steinbeck once pointed out tellingly, that:

“Power does not corrupt. Fear corrupts … perhaps the fear of a loss of power.”

Former president Thabo Mbeki, seized with panic over possible loss of power, has written to the current ANC leadership to insist that attention be given to the urgent need for renewal. He remarks that making good where there is corruption is vital to renewal. He is right. This troublesome topic is not one that can be ducked, deferred or delayed any longer.

The ticket upon which current president Cyril Ramaphosa rose to power, at Nasrec in December 2017, was one of renewal and unity. His “new dawn” envisaged a purge of the corrupt in the leadership of the ANC. No such purge has been effected. True enough, some rotten leaders were re-assigned, but the issuing of orange overalls has been fudged for five years, to the everlasting detriment of the trajectory of the country and the ANC. The convicted Jacob Zuma still serves on the NEC of the ANC, he has not been asked to step aside.

In March 2019 the Chief Whip of the IFP, Narend Singh, put it to Ramaphosa in parliament that what is needed by way of reform of the criminal justice administration is the urgent establishment of a new Chapter Nine Integrity Commission mandated to prevent, combat, investigate and prosecute corruption.

The president found the idea “refreshing”, or so he said; and he undertook to mull over it. He is still mulling.

In November 2020 his cabinet approved the National Anti-Corruption Strategy, a mish-mash of Zuma era thinking that pays insufficient attention to the binding decisions of the Constitutional Court on the topic of anti-corruption machinery of state. That flawed strategy supposedly entails, with its purported roll-out, “a need for an advisory council to monitor the implementation of the strategy while advising on institutional arrangements” [these words are taken from the advertisement, a full year later, calling for nominations for non-governmental members of the proposed council - 20211121-Call-for-Nominations_NACC.pdf (justice.gov.za) ]

The Advisory Council was foreshadowed during the SONA delivered in February 2021 when the president announced that:

“We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to parliament.”

Not a single member has been appointed, indeed, the closing date for nominations is 1 December 2021. Nominations will be subjected to “qualifications and probity checks” according to the advertisement; these processes will inevitably lead to further delays given the imminent end of year shut down. It remains to be seen whether any self-respecting sentient being is prepared to apply for nomination.

While independence and a reporting line to parliament are in accordance with the criteria set by the judiciary in binding terms, the notion of a statutory anti-corruption body is not.

Here’s why.

The Scorpions were a statutory anti-corruption body, created to deal with corruption and located within the prosecuting authority. They were summarily closed down by the incoming Zuma administration using a simple majority in parliament to do so. Had they been housed in a Chapter Nine Institution rather that within the NPA, the Scorpions would still have been with us today. This is so because closing down a statutory body only requires a simple majority in parliament, while doing so to a Chapter Nine Institution would require a two-thirds majority. At no stage did the Zuma administration command such a majority.

In addition, it needs to be noted that the NEC of the ANC has resolved, as long ago as August 2020, to instruct cabinet to create, as a matter of urgency, a single, stand-alone, permanent body to “deal with” corruption. This differs from the SONA announcement in that permanence is identified by the NEC as a necessary characteristic of the new body it wants. The court has decreed that the anti-corruption body should be one that enjoys secure tenure of office. Clearly a mere statutory body does not measure up to this criterion. The NEC has recognised this feature in its instruction to cabinet, the president has failed to do so in his SONA announcement some seven months later.

Indeed, the NACS ignores the single entity requirement of the courts, preferring to flirt with the multi-agency approach as if it would be legal to do so. Both the president and the NEC seem to have acknowledged the need for the single entity approach in their pronouncements summarised above. The words of the majority of the Constitutional Court, as expressed by Chief Justice Mogoeng, must be ringing in their ears:

“… corruption is rife in this country and 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 the entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”

The reference by the learned Chief Justice to being “in one accord” is a reference to the entire court sitting in Glenister III. 

The establishment of the proposed Advisory Council will serve no legitimate purpose of government. There is nothing on which salient advice can be given. The findings of the courts are binding and, in effect, the government is currently in breach and probably in contempt of the findings. It does not need to be “advised” of this fact. What it does need to do is to reform the criminal justice administration diligently and without delay as section 237 of the Constitution puts it.

The Advisory Council is a contrivance designed to kick the can down the road for another three years or so. At least until the election campaign due in 2024, during which the existence of the council will be used to excuse the unconscionable delays that have characterised the dithering new dawn of anti-corruption efforts that was trumpeted as long ago as 2017. Back then vigorous campaigning for a  Ramaphosian  new dawn was the order of the day. The work of the council cannot possibly take three years when the courts have spoken already in binding terms and there is in existence a detailed suggestion for implementing the findings made.

It is wholly irrational to appoint an advisory council that can do no more than say that binding criteria for anti-corruption machinery of state already exist in “loud and clear” judicial terminology. They must be applied in legislation to be passed by parliament. All of the intended members of the council would be at liberty to partake in the public participation process that accompanies new legislation in SA.

 Indeed, there is a draft “best practice suggestion” on the topic of reform of the criminal justice administration to implement the law and the Constitution as interpreted by the courts. It is sitting in the inboxes of the presidency and parliament. It has been noted by the NPA. Debating and refining those suggestions is the work of parliament, not a group of civil society advisors who are, in any event, at liberty to tell parliament what they think needs to be done to rectify the dysfunction in the criminal justice administration. Parliament is bound by the pre-existing court findings too.

If cabinet is serious about anti-corruption reform it will withdraw the advertisement calling for nominations immediately and get the parliamentary debate under way instead as a matter of urgency. Fear of loss of power is corrupt and no excuse for dithering.

Written by Paul Hoffman SC, director of Accountability Now

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