Here is an extract from a Legalbrief report on 6 March 2018:
“The government will announce its strategy to fight corruption and State Capture within 100 days, Finance Minister Nhlanhla Nene said at his first public appearance following his re-appointment. According to a Beeld report, Nene told a Federations of Unions of SA conference yesterday (5 March 2018) the government would also announce plans to bring those responsible for corruption to justice. ‘Almost all South African and foreign investors have lost confidence in SA. This situation must be turned around urgently,’ he said.”
Without a strategy, a good strategy, there can be no prospect of success in the fight against corruption and State Capture.
No strategy announcement materialised, either within 100 days or at all. Instead, after giving his evidence to the Zondo Commission, Nene fell on his ministerial sword and subsequently resigned as a member of parliament too.
The first official public engagement of his successor, Tito Mboweni, was in parliament when he delivered the mini-budget on 24 October, 2018. Here is what he said about corruption:
“Restoring good governance and fighting corruption
We can spend our money better. Too much money goes missing. We must restore good governance and fight corruption in all of its forms. Money that leaks out of the system is no longer available to support our efforts to reduce poverty and lighten the burden of the poor.
Madame speaker, among the many tweets we received from the South African public was a plea to strengthen the internal auditing capacity at our municipalities.
It is necessary for us as a country to face up to the events of the recent past, and learn from them. We are taking the following steps to strengthen financial management:
1. Treasury will work with the Office of the Auditor-General to reduce fruitless and wasteful, irregular and unauthorised expenditure. Law enforcement agencies will act against those implicated in wrongdoing.
2. At local government level, we are deploying skilled professionals to boost revenue collection and attain our developmental objectives. Many of these are retirees that have heard the President’s Thuma Mina call.
3. There will be financial recovery plans for non-performing departments.”
The minister’s take home message is one of “business as usual” on the corruption-busting front. The minister saying: “Law enforcement agencies will act against those implicated in wrongdoing” is as good as it gets. That is their job, and they haven’t been doing it for years. How will this magically and suddenly change? What is the strategy that Nene signalled and Mboweni ignored? Is there any strategy?
Let us examine the “law enforcement agencies” from the top down to check for the capacity to do anything positive about corruption.
The current Minister of Police, Bheki Cele, is a former commissioner of police. That sound promising, until one digs a little deeper to discover he was dismissed for his dishonesty and incompetence. Worse yet, the recommendation of the Board of Inquiry that investigated his fitness for office was that he be investigated for corruption by the “appropriate authorities”. There is no chance of that happening while he is minister. The “appropriate authorities” answer to him and turkeys don’t vote for Xmas.
The current Minister of Justice, Michael Msutha, is an advocate. That sounds promising, until one recalls that he is the functionary that signed off on the corrupt dismissal of Mxolisi Nxasana as independent National Director of Public Prosecutions. An independent chief prosecutor was not acceptable in the Zuma era (hence the questionable choices made from day one of his administration) due to the need to shield Zuma from criminal prosecution.
Charges were laid against Msutha in July 2015 both for his corrupt activities and for defeating the ends of justice. What Mboweni calls the “law enforcement agencies”, in Msutha’s case the Hawks and the NPA, have made no progress in prosecuting the simple and straight-forward matter, perhaps because the co-accused is Jacob Zuma. Msutha gave a mealy-mouthed interview on television, after St Valentines Day 2018, in which he passed the buck to then ex-president Zuma. Owen Horwood would approve.
By appointing two ministers who have dark clouds hanging over their past to the police and justice portfolios, the President has signalled that dealing appropriately with the corrupt is not a priority of his cabinet.
The somewhat underwhelming performance of Mboweni on the topic of corruption, as quoted above, is corroboration for this view. He was asked before he stood up to reveal the strategy of which Nene spoke and also to get real about following the Guptas’ stolen money to Dubai, India and Hong Kong. He was also asked to recover the proceeds of invalid procurements by Eskom, Armscor and Transnet. No reply, no action and nothing sensible about clawing back public funds in the speech either.
At present the NPA, littered with vacancies and of low morale according to insiders, has no head. The need to replace Shaun Abrahams has been known since December 2017, but still no replacement has been found. The upper echelons of the NPA management have been thoroughly captured by the Zuma faction of the ANC and the new administration seems powerless to do anything about it.
While the thoroughly bad leadership of General Berning Ntlemeza in the Hawks has been ended, his replacement is crying out for resources, in vain, and says he is determined to find out what is wrong with the Hawks. Not promising.
The leadership of the police has been dogged by scandal after scandal, all of them involving corruption of some kind. The IPID investigators, tasked with keeping the police honest, are under-resourced and frustrated by disinformation campaigns aimed at impugning their credibility. Not much for the comfort of the public there.
All too frequently, police capacity in relation to corruption appears to be to get involved with rather than to fight the corrupt.
Minister Mboweni is either guilty of baseless wishful thinking or he is merely paying lip-service to cracking down on corruption and State Capture. If he does not find a way to capacitate and properly resource those in the law enforcement agencies whose work it is to enforce the law against the corrupt, there will be no progress in the war on corruption. This topic is much talked about but not acted on in high places in government. It will take many years to sort out the mess in the police, the Hawks and the NPA. In nearly 10 years the Hawks have not landed a single “big fish” from the cesspool of corruption.
The knowledge that in a properly run criminal justice administration a good number of our cabinet ministers would find themselves in the dock in criminal trials and three of the top six of the ANC would also be in the same position is a huge disincentive (in a pre-election year) to actually take the threat posed by corruption seriously and to act positively to counter it.
The Chief Justice warned, as long ago as 2014, that the “malady” of corruption was then in danger of “graduating into something terminal.” The medicine for the malady which his court thoughtfully prescribed can be summed up in his own words as:
“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 that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate.”
There is no good reason why such an agency or entity, as required in binding fashion by our highest court, should not be established now. By doing so, government would neatly side-step the current dysfunction in the law enforcement agencies and the cabinet. They could be left to get on with ordinary crimes, priority crimes other than serious corruption and their other usual functions.
To enjoy its independence, the new entity would have to be a Chapter Nine institution so as to avoid the fate of the Scorpions, who were closed down by a simple majority in parliament after a long hard fight for their preservation. A mere creature of an ordinary statute won’t suffice.
The mandate of the new entity would be to prevent, combat, investigate and prosecute serious corruption. It could be staffed by properly vetted personnel drawn from the police, the NPA, the Special Investigations Unit, the Assets Forfeiture Unit and even the Hawks or other specialist police personnel. As occurred with the Scorpions, recruits should be sent for special training to equip them to outwit the wiles of the corrupt.
The accountability reporting line of the entity, as is the case with all Chapter Nine Institutions, would be to the multi-party National Assembly, not to a (possibly captured) cabinet or to cabinet member with a dark past.
The missing ingredient in all this strategy to conquer the corrupt is that the necessary political will has to be generated to make it happen. At least two thirds of the members of parliament will have to be persuaded to support the move. Those already hopelessly compromised are unlikely to do so. Turkeys and Xmas, again.
The opposition parties in parliament should embrace the notion as part of their manifestos for the forthcoming elections and challenge voters to only vote for the parties that are sufficiently serious about conquering corruption to do what the Constitutional Court required of government in 2014. That government has not, of its own volition, done so already speaks volumes about its commitment to the rule of law and its seriousness about fighting the corrupt properly through obedience to court orders that bind it.
Accountability Now has long championed what it calls an Integrity Commission to take on the important functions of state around combating corruption. The name chosen is not important, the capacity to prevent, combat, investigate and prosecute corruption properly is. As the new entity will be taking over some of the work of the Hawks it would be appropriate to give it the nick-name “The Eagles”. After all, eagles fly higher, see further and go after bigger prey than hawks. DM
Paul Hoffman SC is a director of Accountability Now and author of Confronting the Corrupt in which the idea of an Integrity Commission is championed