Jacob Zuma has sparked public outrage by demanding the recusal of Judge Raymond Zondo, and so threatening to derail the commission of inquiry into state capture which has already cost taxpayers close on R1bn.
Since the start of its public hearings in August 2018, the commission has heard testimony from dozens of people. These include the 33 witnesses who have prima facie implicated Zuma in serious wrongdoing, much as he denies this.
The outcry will intensify if Zuma’s ploy succeeds in delaying the commission’s work for many more years – which is surely what the former president intends. Generally overlooked, however, is what Zuma has already done to stymie the commission.
Erstwhile public protector Thuli Madonsela wanted a short, sharp judicial inquiry into the relatively narrow range of Gupta-related issues she had flagged in her State of Capture report in 2016. Zuma subverted this (when he eventually established the commission in January 2018) by vastly expanding its terms of reference. These now encompass all unlawful or improper tenders granted, not just to the Guptas, but to any other person or business by all organs of state at all levels of government.
This massive mandate has delayed the completion of the commission’s work. Which is why Zondo has obtained an extension to March 2021 and may yet have to request President Cyril Ramaphosa to narrow the terms of reference to the issues identified by Madonsela.
However, even with a more manageable mandate – and assuming Zuma’s current threat is averted and Zondo reports in March next year, as planned – the commission will still have been a monumental waste of time and money.
The key need is for successful prosecutions, not costly judicial inquiries that create an impression of action against corruption but cannot in themselves put anyone behind bars – and mostly serve to kick the can down the road until public anger has subsided.
In addition, irrespective of how much damning and credible evidence the commission uncovers, senior ANC leaders – particularly the roughly 41 people on its national executive committee (NEC) who have been implicated in serious corruption – are unlikely to face prosecution, as this would divide and destroy the ANC.
Trying to bring Zuma to book for his role in either arms-deal corruption or Gupta-linked state capture is also akin to shutting the stable door long after the horse has bolted. The heavy costs of this malfeasance (running to perhaps as much as R1.5 trillion on state capture) cannot be recovered. Any real attempt to put Zuma behind bars is also politically impossible, as this too would split the ANC – especially when so many NEC members implicated in corruption are not being probed for the wrongs they might have done.
However, the state-capture part of the malaise could at least have been prevented if the Constitutional Court had acted to prevent the disbanding of the Scorpions, and if the BEE rules that facilitated the Zupta heist – and which continue to promote extraordinary levels of corruption – had been replaced by sensible and race-neutral empowerment measures better able to help the poor and marginalised.
As regards the Scorpions, the ANC resolved at its Polokwane national conference in 2007 to disband this elite anti-corruption unit largely because it had gathered sufficient prima facie evidence to send Zuma to prison, rather than to the presidency. In 2008 the Cabinet duly approved two bills – one to disband the Scorpions and the other to establish a far more malleable unit, to be called the Hawks – and put them before Parliament for adoption.
With resignations from the Scorpions already mounting, a wealthy businessman by the name of Hugh Glenister tried to save the unit by halting the legislative process. In this Glenister 1 case, he argued that the circumstances were exceptional enough to warrant the Constitutional Court’s intervention, so as to prevent the ‘irreparable harm’ that would result if the Scorpions effectively ceased to exist while the bills were still before Parliament.
However, the Court refused to intervene. Having declined to acknowledge any urgency in the matter, it ruled that Parliament must be allowed to fulfil its law-making function under the separation-of-powers doctrine. In addition, it said, Glenister could always come back to it if the bills were indeed enacted and he still wanted to challenge their validity.
The two bills were duly adopted by Parliament and signed into law in 2009. Glenister then applied to the Constitutional Court, in the Glenister 2 case, to strike down both the statute disbanding the Scorpions and the one creating the Hawks. Glenister argued that the statutes were inconsistent with South Africa’s international and constitutional obligations to maintain an independent anti-corruption unit.
The Court agreed that the Constitution did indeed require an independent corruption-fighting unit. This was vital to help curb the corruption that otherwise threatened to ‘fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order’. Without effective counter-action, corruption would undermine democracy, the rule of law, and the state’s capacity to meet vital socio-economic needs, while ‘fuelling maladministration and public fraudulence’.
Against this background, the court went on to state that the government was obliged to ‘establish and maintain’ an independent anti-corruption unit. However, it could easily have rephrased this – in a small but vitally important way – to say that the government was obliged to maintain or establish a unit of this kind.
Based on its preferred phraseology, the court then focused on the need to ‘establish’ a new unit. Which meant it simply brushed aside the crucial point that the government could best counter corruption by maintaining the independent unit it already had: the Scorpions.
The Court thus failed to deal at all with the constitutionality of the statute disbanding the Scorpions. It simply dismissed the issue with the bare statement that ‘the legislative choice to abolish the Scorpions…did not in itself offend the Constitution’. No reasons were provided as to why maintaining the Scorpions was not by far the best way to stop corruption from felling our democracy at its knees.
If the statute disbanding the Scorpions had been struck down, the validity of the legislation establishing the Hawks would, of course, have become irrelevant. But the Court instead focused all its attention on the statute creating the Hawks and whether this gave the new unit sufficient independence.
The Court found that the Hawks were ‘markedly less independent’ than the Scorpions, while their institutional autonomy was ‘markedly more tenuous’. The Hawks were also subject to ministerial ‘guidelines’ as to what offences they should probe, creating a risk of ‘hands-on’ executive interference in their work. The statute establishing the Hawks was thus unconstitutional and had to be amended to give the new unit more independence – a task that Parliament was given 18 months to perform.
This ruling was hailed as a great victory in the fight against corruption, but its limited significance was soon whittled away. The Hawks were never accorded the autonomy the Scorpions enjoyed. Nor have they ever matched the Scorpions’ success in curbing corruption.
The Constitutional Court could and should have focused on the need to maintain the country’s existing and highly independent anti-corruption unit. It could and should have struck down the law disbanding the Scorpions, as Glenister had urged right from the start.
If the Constitutional Court had ruled in this way – and especially so at the Glenister 1 stage – the Scorpions would still have been available to probe Zupta-linked state capture and help bring it to an end.
The Scorpions would have been greatly helped in doing so – and in stopping additional pervasive corruption at all tiers of government – if BEE rules promoting cadre deployment and preferential procurement had also been repealed. These should have been replaced by effective policies to help the disadvantaged, rather than a political elite largely intent on using BEE for self-enrichment.
The state capture horse has bolted and cannot be recovered. But the corruption that BEE fuels – most recently in the state’s Covid-19 emergency procurement contracts – can still be checked by appropriate reforms to empowerment policies.
In 2009 Tito Mboweni, then outgoing governor of the South African Reserve Bank, said: ‘Hindsight is useful only when it improves our foresight.’ In re-examining the defects in the Zondo commission, the Glenister rulings, the state capture saga, and the fraud that BEE has long fostered, we can use the lessons learnt to craft positive changes.
The most important change required is, of course, for South Africans to vote the irretrievably corrupt, incompetent, and callous ANC out of power. Until then, we need at minimum to re-establish the Scorpions, but this time as a Chapter Nine institution with stronger safeguards (as Advocate Paul Hoffman SC of Accountability Now has repeatedly urged). We also need to strengthen the independence of the Constitutional Court – and to embrace race-neutral empowerment policies that restore the vital merit principle in the public service and public procurement and cannot be abused by ANC cadres.