As we celebrate Freedom Month in South Africa, we celebrate our liberation from the yoke of apartheid and colonialism, and we celebrate our Constitution.
As a nation, united in our diversity, we must cherish our non-racial, non-sexist multi-party system of governance under the rule of law. It is a system which is founded on ensuring accountability, responsiveness and openness so that human dignity, the achievement of equality and the advancement of human rights and freedoms are nurtured and flourish. These values are all neatly set out in the first section of the first chapter of the Constitution
Our state is obliged to respect, protect, promote and fulfil all of the rights guaranteed to all in the Bill of Rights which is Chapter Two of the Constitution. By doing so, the state is enabled to address the legacy of our fractured past and to enhance the freedom of all law-abiding citizens.
As we learn from the monthly reports of the State Capture Commission, our freedom as a nation has been blighted by a project hatched in the corridors of political power. State capture is an ugly reality. Crooked politicians and their cohorts have attempted to hijack the state and bend it to their own nefarious purposes. They have relieved the country of between R 1 and R 2 trillion rand (estimates differ) – looted and spirited away by those involved in state capture. State capture has been enabled and abetted by the pernicious practice of cadre deployment in the public administration and SOEs, a practice which is illegal and unconstitutional and which is bound to be frowned upon in the final report of the SCC due out just after Freedom Day.
Corruption and freedom of the kind our Constitution contemplates are incompatible. In what was hailed by Professor Pierre de Vos in his Constitutionally Speaking blog of 18 March 2011 as a, “monumental judgment” in favour of the poor, the Constitutional Court struck down the legislation designed to replace the effective and efficient Scorpions with the all but useless Hawks thereby disabling the anti-corruption capacity of the state. The Justices explained that:
““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 is put at risk.”
Corruption with impunity, and the desire of the corrupt to extend their impunity indefinitely, is what lies behind the July 2021 insurrection, the infighting in the ANC and the collapse of service delivery in far too many municipalities in SA.
The jailing of former president Jacob Zuma was the precipitating factor in July 2021, but the culture of corruption with impunity is what led to the orchestration, organisation and implementation of the looting and destruction which cost 353 lives, damage to property of around R50 billion and the loss of some 2 million jobs, if the evidence placed before the SAHRC inquiry by the current president is accurate.
Freedom for ordinary citizens is undermined when corruption is allowed to flourish in the ways and to the extent that it has flourished in SA of late. The end of the Zuma era’s “nine wasted years” did not end corruption in high places. Covidpreneurism replaced or supplemented tenderpreneurism - two terms well understood in SA even though neither of them features in the dictionary. A cabinet minister has resigned in disgrace following allegations of his family participating in covidpreneurism and cronyism. The flow of corrupt activities keeps the criminal justice administration and the Special Investigating Unit more busy than their resources allow. Their resources are kept in short supply by a state that is less than pro-active about countering the corrupt. A long overdue restructuring is delayed and deferred unnecessarily.
A valuable working definition of corruption is “theft from the poor.” All too often kleptocrats, state capturers and those involved in serious corruption are in the business of diverting funds and other resources intended to help the poor away from serving the public good and into their dirty pockets.
The incidence of theft from the poor has become so acute in our country that children in the Eastern Cape and other impoverished areas are starving to death. This is happening at a time when a third of the food produced in SA lands up in landfills while still in edible and nutritious condition. This is nothing short of scandalous. The matter has been commented on in public since at least 2020.
The SAHRC has for some time been seized with a complaint from Accountability Now about the wastage of good food in a time of need. The situation is an abomination and one which is intolerable in any civilised society let alone one which boasts what its president calls the “best Constitution in the world.”
The proper implementation of that Constitution requires that the state, diligently and without delay addresses the wastage of food in a way that regards food as a resource and involves the effective, efficient and economic use of that resource. This is what is required by Section 195(1) (b) of the Constitution read with Section 237.
Apart from devising suitable ways of keeping excess food out of landfills and redirecting it to hungry stomachs of small children, the state should also look at corruption as the cause of the starvation now manifesting itself. Corruption needs to be addressed urgently if starvation is to end soon, as it should.
There is no rocket science in addressing the high incidence of corruption in SA. Most major political parties favour radical reform of the criminal justice administration. This has been explained to the executive, the legislature and to the leadership of the prosecution service in a detailed memorandum and by way of draft suggested legislation. The memo even has an executive summary for those with heavy reading loads:
It was Judge Navi Pillay, wearing her UN Human Rights Commissioner hat who said:
“Make no mistake about it, corruption is a killer... The money stolen through corruption is enough to feed the world’s hungry 80 times over… Corruption denies them their right to food and, in some cases, their right to life.”
Her truism is coming home to roost in the poorer households of the Eastern Cape, as reported by Estelle Ellis in the DM columns she writes. https://www.dailymaverick.co.za/article/2022-03-29-fourteen-babies-and-toddlers-have-starved-to-death-in-nelson-mandela-bay-in-the-past-15-months/?utm_medium=email&utm_campaign=First%20Thing%20Wednesday%2030%20March%202022&utm_content=First%20Thing%20Wednesday%2030%20March%202022+CID_ae1749e30fb18d801edf5f634c6f859b&utm_source=TouchBasePro&utm_term=Fourteen%20babies%20and%20toddlers%20have%20starved%20to%20death%20in%20Nelson%20Mandela%20Bay%20in%20the%20past%2015%20months.
It is nothing short of a national disgrace that there is so much misery in the midst of so much excess food production. It is urgent that the complaint to the SAHRC lodged by Accountability Now be addressed comprehensively and not merely at the level of ending the waste of food. The high incidence of corruption is behind much of the human misery, the poverty, the unemployment and the persistent inequality in SA. Freedom cannot be enjoyed as it should be while these conditions persist.
Mark Heywood, editor of Maverick Citizen, has thoughtfully assembled the facts of relevance to this argument. He has pointed out that South Africa:
- is ranked 114th (out of 189 countries) on the 2020 Human Development Index published annually by the United Nations Development Programme (UNDP);
- is one of the world’s most unequal countries [where] the highest 10% of income earners capture more than 65% of total South African income, while the poorest 50% only get 5% of it.” (According to the 2022 World Inequality Report, published by the World Inequality Lab)
- is a country where “the richest South Africans have wealth levels broadly comparable with those of rich Western Europeans, the poorest half of the population owns no wealth at all.” This is borne out by research by Sharlene Swartz of the Human Sciences Research Council (HSRC) who demonstrates that “when ranking population groups against other countries, Black African South Africans rank 142nd, Coloured South Africans 120th, Indian South Africans 53rd, and White South Africans 15th.”
- Is ranked 52nd out of 139 countries in the World Justice Project’s Rule of Law Index (2021) and 70th out of 180 countries on its 2021 Corruption Perceptions Index (by Transparency International).
While the rights to life, dignity, bodily and psychological integrity and food of poor small children are threatened and infringed by a state that has accepted the obligation to respect, protect, promote and fulfil those rights, all of which have been deliverable in full since 1994, it is impossible to celebrate SA’s freedom. Just join the dots.
Written by Paul Hoffman. He is a director of Accountability Now and was lead counsel in the Glenister litigation that set the criteria for corruption busting.