by David Lewis
The considerable advances since 1994 notwithstanding, South Africa is still confronted with huge challenges. Poverty, inequality and unemployment leap out. Public education and health systems are severely strained. Service delivery protests and crippling strikes manifest these social and economic conditions.
Yet the issue that dominated last month’s elections was corruption. That corruption provided ready ammunition for parties opposing the African National Congress (ANC) undoubtedly accounted in part for the focus on corruption. But it clearly constitutes recognition by the electoral contenders of the resonance that this issue has with the public. Indeed, it is common to attribute, rightly or wrongly, any number of problems — from deficient service delivery to e-tolls — to corruption. Given all of this, one would have hoped for more than the “you did, we didn’t” exchanges that characterised election-time noise around corruption. Sadly, I cannot recall one constructive proposal to combat corruption coming out of either the ANC or the opposition parties.
This undoubtedly has something to do with the most obvious solutions being, well, obvious. They also appear intractable. Topping this list has to be tackling the extraordinary impunity enjoyed by those in power and connected to power. And pre-eminent among these are persistent allegations of corruption implicating President Jacob Zuma, his family and his business associates.
The ANC can deny this until all the president’s cows come home. It can insist that the election outcome proves that the voters reject these slurs. But it knows that it is wrong. Polls consistently find a steady decline in Zuma’s personal standing. While it may conclude that the election outcome shows that the brand of the ANC has been maintained, and maybe deservedly, this does not extend to Zuma. And it knows that those who do not share this widely held view of Zuma’s alleged conduct, espouse the same premodern conception that Zuma himself seems to embrace — one that refuses to distinguish between a public leader and public resources.
The fish rots from the head
With perceived corruption and impunity at the top so deeply entrenched, the rot extends downwards. When the erstwhile cabinet’s security cluster of ministers is rolled out to cover up Nkandla, senior ministers and the critical institutions for which they are responsible, including the country’s official anticorruption institutions, are implicated. The same may be said of Parliament when, despite a nominal mandate to investigate allegations, its processes are cynically deployed in the service of hiding corruption. And when a judicial commission into the arms deal (also implicating Zuma) is perceived to be less than diligent in pursuing its mandate, the standing of the judiciary itself is compromised.
The institutions most sorely implicated in this insidious spread of corruption are the criminal justice institutions charged with punishing corruption. Several courts, including the Constitutional Court, have found that key anticorruption institutions lack the requisite independence to conduct their business “without fear or favour”. Why is this so? And why the pattern of controversial, inappropriate appointments to senior positions in the police and prosecutorial services?
The answer is surely because politicised law enforcement is necessary to ensure continued impunity for those at the top. This is why the office of the public protector is such a thorn in the side of those who fear that they have given cause to be punished, and why it enjoys such widespread public support. Not because it possesses extraordinary investigatory capacity or insight but because it carries out its mandate “without fear or favour”. It simply does its job.
Fight corruption and impunity through action
How to end impunity when those holding the reins of power may themselves have reason to fear punishment from independent law enforcement? Principally through unrelenting public pressure of the sort exercised by the media, nongovernmental organisations and, above all, ordinary people. Who could deny that the outrage at Nkandla has put Zuma and his allies on the back foot, desperately seeking scapegoats and implicating public figures and institutions in their defence? Even the usually brazen Guptas have kept their heads below the radar since the outrage generated by their commandeering, clearly sanctioned from above, of an air force base for a family wedding.
Nor should the public believe that it is arraigned against a monolithic ruling party and government. It should take comfort in the firm knowledge that there are important allies in the leadership of the ANC and the government who are deeply concerned at these continuing displays of impunity. It is precisely public outrage that will give these allies the power and space to act. Indeed, it would not be surprising if Zuma’s standing within the ANC has declined more significantly than his standing with the public.
That we need to address the very large problem of high-level impunity should not obscure the potential for focused solutions. And so we would like to see:
- Robust enforcement of existing statutory and regulatory measures to combat corruption. In particular, enforcement of the measures requiring financial disclosure by public officials and elected representatives; implementation of the recently introduced prohibition on public officials doing business with the state; and we would like to see enforcement of section 34 of the Prevention and Combating of Corrupt Activities Act, which requires, on the pain of severe sanction, those with knowledge or suspicion of corrupt activities to report these to the law enforcement authorities;
- The introduction of a public register of beneficiaries of trusts and other legal structures commonly used to hide the proceeds of corruption. We will take part in a campaign soon to be launched by Transparency International for securing this demand;
- A strengthening of the Protected Disclosures Act. In particular, the category of whistle-blowers who enjoy protection must be extended from employees, who are protected from employment-related consequences, to others who disclose corruption;
- Tightening up of the framework and capacity to discipline public officials who engage in corrupt conduct. The unedifying spectacle of senior public servants on extended paid leave resigning before drawn-out disciplinary processes end, only to re-emerge in other parts of the public service, has to stop.
These are among the demands we will be making of the new administration. But we make them in the firm knowledge that they will be realised only with the demonstrable support of an active citizenry.
Active citizenry needs to extend to our leading corporate citizens. We are intent on seeking solutions to corruption that will enable constructive participation by our leading corporations. Indeed, impunity needs to be addressed here too. For example, the law enforcement authorities would send a strong signal of their willingness to challenge impunity if they immediately announced their intention to investigate the highly suspect award by the South African Social Security Agency of a R10bn contract to Cash Paymaster Services.
While we are by no means in the category of most-corrupt nations, there are disturbing signs that key anticorruption law enforcement institutions are very close to that tipping point where corruption becomes irreversible. From that point on, there is no soft landing. Not even at Air Force Base Waterkloof.
• This article was first published in Business Day.