Time for bold leadership to rid SA of the scourge of corruption
The investigations into state capture present an ideal opportunity for a thorough revamp of institutions battling to restore the state's integrity
As the nation begins to absorb the full nature and scale of the state-capture looting spree, we remain unsure of how the perpetrators will be dealt with. A cleanup of the key agencies in the criminal justice sector - the National Prosecuting Authority (NPA), the Directorate for Priority Crimes Investigation (DPCI or Hawks) and the South African Police Service - is under way. Even once cleansed, will they have the capacity to go after and prosecute the culprits?
In an article on these pages last week, minister of public enterprises Pravin Gordhan outlined the political culture that facilitates state capture and the complexity of mechanisms used to conceal ill-gotten gains and frustrate investigations. He posits that confronting this attack on our democratic state "will require time, difficult choices and bold action by leaders".
Fixing the NPA is non-negotiable if we wish to ensure that all those implicated are held to account. Having identified the leadership crisis at the NPA, President Cyril Ramaphosa is belatedly beginning to act - he will soon appoint a new national director of public prosecutions (NDPP) and has finally instituted enquiries into the fitness of Nomgcobo Jiba and Lawrence Mwrebi to hold office at the NPA. But there are others, including the DPP for KwaZulu-Natal, Moipone Noko, whose conduct leaves much to be desired and tarnishes not just the image of the NPA but infects its institutional DNA.
But even before dockets get to the NPA they need to be meticulously investigated and the evidence amassed. In matters of state capture and corruption, this responsibility lies primarily with the Hawks, whose mandate extends to serious organised crime and serious commercial crime.
Recognising the need for a specialised focus on corruption, an anti-corruption task team (ACTT) was assembled, including the NPA, Hawks, Financial Intelligence Centre, Special Investigating Unit, Sars, and the Independent Police Investigating Directorate. Hampered by several compromised participants (Shaun Abrahams, Berning Ntlemeza, Tom Moyane, to name a few), it has prevaricated on a number of high-profile matters and undermined its effectiveness.
The ACTT epitomises the government's preferred multi-agency approach to fighting corruption, a principle that was front and centre of deliberations when the National Development Plan (NDP) was being debated. The draft NDP proposed the establishment of a single anti-corruption agency on the lines of the Hong Kong Independent Commission Against Corruption (ICAC), a model emulated in Botswana, Singapore and Australia. Yet the final version of the NDP flip-flopped on this and reverted to the multi-agency approach, limply stating: "The country does not have the institutional foundation in place to make the ICAC model a viable option."
The manifest failure of the multiple agencies to combat state capture must now lead us to review this institutional framework. In a report published in March 2011, "Corruption - Towards a Comprehensive Societal Response", the Council for the Advancement of the South African Constitution (Casac) identified three challenges with this tactic.
First, that many key anti-corruption provisions are not adequately enforced - there has yet to be a successful prosecution in terms of the Public Finance Management Act. Second, there is no institution with a clear mandate to raise awareness about corruption and educate the public. Third, despite an obligation to establish an independent agency, none of the bodies whose primary mandate is to address corruption is institutionally independent.
The Casac report advocated an independent agency pursuing a three-pronged strategy of enforcement (including investigation and referral for prosecution), prevention and education.
The ICAC model is not a panacea, and without significant political will, it too will flounder. But that political will must reach beyond mere slogans and rhetoric, and encompass at least these elements - adequate budgetary provision for the agency, skilled investigators and prosecutors, and sufficient safeguards against political interference, buttressed by a zero-tolerance approach towards corruption.
The absence of political will to confront corruption is highlighted by the government allowing the demise of the National Anti-Corruption Forum, a chamber structure representing the government, civil society and business, whose mandate was to spearhead a co-ordinated approach to fighting corruption.
In addition, and despite the many proclamations of the government's commitment against corruption, SA still does not have a national anti-corruption strategy - in other words, we have not agreed on how we will counter this scourge, and how we will collectively, as a society, apply the antidote to this debilitating illness. A draft strategic plan was developed a couple of years ago with the assistance of civil-society organisations, but remains forlornly on the drawing board.
The institutional and operational independence of the single agency must be legislatively safeguarded to inspire public trust and confidence, and creative mechanisms employed to ensure accountability - the latter may include civilian and parliamentary oversight structures, with the authority to review decisions to terminate investigations. The appointment process for the head of the agency should be conducted openly by an independent body comprising the three arms of government as well as civil society.
As Gordhan cautioned, such changes will take time. Legislative and perhaps constitutional amendments will be required. In the interim, however, Ramaphosa has another option to deal with state capture. Section 7 of the NPA Act empowers the president to establish investigating directorates in the office of the NDPP that could be tasked with offences relating to state capture and corruption.
The effectiveness of the Zondo commission will be measured against the prosecutions that flow from the evidence it produces. Consideration should therefore also be given to enhancing the capacity of the courts by appointing additional judges or utilising retired judges to fast-track corruption cases - without placing additional strain on the existing court system.
Let us not waste the national crisis presented by the phenomenon of state capture - we need to think outside the box, beyond the current failed institutional arrangements to find effective solutions to combat corruption, restore the integrity of the state and strengthen our constitutional foundations. It is indeed time for bold leadership.
• Naidoo is the executive secretary of Casac