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In South Africa the Rule of Law Does not Apply to the Political Elite

ISS' Head of the Crime and Justice Programme Gareth Newham speaks to Polity about whether the rule of law applies to the political elite. Camera: Nicholas Boyd. Editing: Darlene Creamer. Recorded: 26.06.2012.

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There is little disagreement that corruption is a serious problem facing South Africa. Unfortunately, various indicators suggest that the problem is getting worse. The annual Transparency Corruptions Perceptions Index is a useful measure of whether corruption is getting better or worse in 182 countries worldwide. Ten points indicate the absence of perceptions of corruption, while 0 means that the country is entirely corrupt. On this scale, in 2011 New Zealand scored closest to ten with a score of 9,5, while Somalia was rated as the most corrupt country in the world with a score of 1. The 2011 index reveals that South Africa registered its lowest score to date of 4,1 points when compared with our highest rating of 5,1 in 2007. Worryingly, we have dropped from 54th place in 2010 to 64th place in 2012 on the world rankings. The surveys from Afrobarometer – a public opinion survey focusing on Africa – have also shown that South Africans are increasingly concerned about corruption. While in 2008, 15% of adults thought that corruption was ‘an important national issue’, by 2011 this had increased to 29%.

In October 2011, the head of the Special Investigating Unit (SIU), Willie Hofmeyr, told the National Assembly Portfolio Committee on Justice and Constitutional Development that corruption involving government procurement was costing South Africa as much as R30 billion each year. To place this in perspective, this amount of money could increase the annual budget of the Department of Basic Education by 20%, the Department of Health by 25% or the entire criminal justice system by 30%. In short, if taxpayers’ money were not being stolen by, or with the connivance of, corrupt government officials and politicians, all South Africans could benefit from substantially more schools, hospitals and police stations staffed with better-paid doctors, teachers and police officers.

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It is then fortunate that, officially at least, the government has identified corruption as a serious challenge and has set itself the objective of reducing corruption so as to ‘boost investor trust and willingness to invest in the country’. Towards this end it set the goal of prosecuting and convicting a hundred individuals that are suspected to have corruptly acquired assets worth more than R5 million by 2014. To achieve this the government has established the Anti-Corruption Task Team to coordinate the activities of various investigation agencies and the National Prosecution Authority (NPA). Although Hofmeyr pointed out earlier this year that at least 26 individuals meeting the government’s targeted profile are before the courts on corruption charges, its overall target is too ambitious given the handful of successful convictions achieved in the past few years.

The question is, why is the problem of corruption so large and damaging to South Africa if there is an official government policy to reduce it? The answer lies in examining the extent to which there is political will to take appropriate action against the most politically powerful and connected people.

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When an ordinary citizen is alleged to have committed a crime such as corruption, the South African Police Service (SAPS) will identify that person as a suspect in a criminal matter. The SAPS will then use its legally provided investigative powers and resources to gather any evidence that will allow the suspect to be criminally charged and brought before a court. The suspect is given various rights and is entitled to having lawyers test the evidence so as to ensure that it is indeed correct and that the he/she is not being falsely accused. If the evidence is found wanting suspects will be acquitted and if not, may find themselves convicted and sent to prison.

It is the unfortunate reality that politically connected individuals are being protected from criminal justice processes. When Police Commissioner General Bheki Cele was found by the Public Protector to have engaged in conduct that was ‘improper, unlawful and amounted to maladministration’, he was not subjected to a criminal investigation. Rather, his friend and the person who appointed him to his post, President Jacob Zuma, appointed a board of inquiry to look into allegations of corruption and wrongdoing. However, unlike a police investigation, the board of inquiry could not subpoena witnesses, or access cellphone records and bank statements, as was the case in the investigation against convicted ex-SAPS Commissioner Jackie Selebi. The inquiry had no investigative powers and therefore could only consider evidence provided to it by willing parties. The recently leaked inquiry report therefore raised more questions than answers and apparently recommended that a full criminal investigation be undertaken into the matter. If Zuma implements this recommendation, it will be the first example of a senior politically connected person at a national level being subject to such an investigation under his administration.

Disturbing allegations emerged as a result of various investigations by the Directorate for Priority Crimes Investigations Unit (also known as the Hawks), that the Head of SAPS Crime Intelligence, Lieutenant-General Richard Mdluli, and his close colleagues were implicated in a range of crimes including murder, rape, kidnapping, intimidation and wide-scale corruption. It is alleged that the Minister of Police halted all investigations into Mdluli and ordered that he be reinstated. Mdluli was irregularly appointed to his position after a cabinet ministers’ meeting two months after Zuma was sworn in as the President of South Africa. It has been alleged that this was because of Mdluli’s willingness to use his position to support Zuma to stay in power. Indeed, Mdluli has written letters to Zuma that state as much.

That the current acting SAPS National Commissioner Nhlanhla Sibusiso Mkhwanazi has recently re-suspended Mdluli is seen by many as a bold move to reject political interference in police matters, a move that could cost him his position. Current criminal investigations into Mdluli by the Hawks appear to have been taken despite political interference.

More recently we have read of allegations that the Minister of Police, Nathi Mthethwa, irregularly benefited from the Secret Service Account of the SAPS Crime Intelligence Division when R195 581.40 was used for renovations to his private residence. If this allegation is true, it may amount to unlawful conduct as the funds in this account consist of taxpayers’ money to be used for crime intelligence work only. The Minister of Police has denied that he benefited from the Secret Service Account and stated that he had asked the Auditor-General (AG) to investigate. As is the case with the board of inquiry into Cele, the AG does not undertake its work with the intention of gathering evidence to support or refute allegations of misconduct or criminality. Therefore the Minister is safe in the knowledge that he will not automatically be facing any criminal sanction from the AG’s investigation into the allegations against him. All the AG will be able to find with regards to wrongdoing is that money was misspent and recommend that further investigations be undertaken – a recommendation that could be ignored by the Minister, to whom the AG will report on this matter.

If politically connected individuals cannot be held accountable for criminal activity through the criminal justice system, there is little incentive for them to stop engaging in corruption and the problem will continue to worsen. Unfortunately, this appears to be happening as there is no political will to subject politically connected people at the highest levels of government to the criminal justice system when there are allegations of wrongdoing. So no matter how many ordinary people the government throws in jail, our country will continue to suffer the negative effects of corruption of state resources being used to benefit a handful of individuals.

Written by Gareth Newham, Head of the Crime and Justice Programme, ISS Pretoria

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