Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.
It has been days since the voluminous 874-page report into allegations of State Capture and corrupt activities in post-apartheid South Africa was handed over to President Cyril Ramaphosa by acting Chief Justice Raymond Zondo.
As expected, the report is already creating waves indicative of the violent storms to come concerning any attempt to implement its recommendations. Some of the reactions preemptively delegitimise the report — its findings and recommendations.
Judicial Commission of Inqu… by Daily Maverick
For example, Mzwanele Manyi, who is among prominent South African individuals named in the report as one of the “enablers” of State Capture — during his tenure as director-general of the Government Communication and Information System — came out guns blazing and labelling the report as “nonsense” and “rubbish”.
The report contains eye-popping and damning findings of self-serving politicians who strive for patronage with no accountability, unscrupulous businesses and individuals in the private sector, and a defective government leadership and ineffective law enforcement agencies.
The ANC-led government did not escape the wrath of Zondo, who effectively found it complicit in nurturing the capture of state-owned entities.
“These entities did not drop overnight from the internationally highly regarded entities that they once were to what they subsequently became. The decline happened over several years but both the government and the ruling party failed dismally to make any effective interventions to halt the decline. Either they did not care or they slept on the job or they had no clue what to do,” noted the report.
Corruption is a global pandemic and its seedlings can be picked even in the most developed nations. What is important, however, is how seriously the leadership of a country takes corruption and appreciates that tangible efforts must be implemented to combat it instead of being the main actors in the abuse of power for private gain.
An introduction to the recent United States Strategy on Countering Corruption best explains the devastation that corruption and abuse of public office can cause: “When government officials abuse public power for private gain, they do more than simply appropriate illicit wealth. Corruption robs citizens of equal access to vital services, denying them the right to quality healthcare, public safety, and education. It degrades the business environment, subverts economic opportunity, and exacerbates inequality. It often contributes to human rights violations and abuses and can drive migration. As a fundamental threat to the rule of law, corruption hollows out institutions, corrodes public trust, and fuels popular cynicism toward effective, accountable governance.”
Previously I asked the question: Is the Zondo Commission report destined for the dustbin or the annals of history? The answer lies in the commitment of the government and the ruling ANC towards combating corruption and burying it for good. The report is one of the sternest tests for the government of South Africa.
To borrow from the 1989 report of Australia’s Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, also known as the Fitzgerald Commission of Inquiry, or the Fitzgerald Commission report, “The real test of the commitment which has been made to a new era will arise when decisions are made as to who will be responsible for carrying forward the recommendations which are adopted. The need for independent people, drawn from outside the existing bureaucracy, is plain.” It should come as no surprise that “some people will, for a variety of selfish and genuine reasons, oppose [the] report’s recommendations for reform”.
It would seem that the Zondo report will not be making its way to the dustbin or the giant shredding machine any time soon, and this faint glimmer of hope comes after some of the utterances of President Cyril Ramaphosa talking tough against corruption and the ANC January 8 Statement that in part supports the Zondo report.
The January 8 Statement says the “worrying confluence of subverting actions are evinced by the blatant acts of state capture and criminality described in the report of the Commission of Inquiry into State Capture, the concerted campaign of public violence and destruction that took place in July last year, as well as ongoing acts of wanton theft, destruction and obstruction of vital public and private infrastructure, including communication and logistical networks”.
The statement further makes a clarion call “on all South Africans to engage with the Commission’s report and to be part of the national effort to put state capture behind us and build an ethical, capable developmental state and a society governed by the values of our democratic Constitution and the rule of law”.
The president can be assured that some of us have already started to engage with the report and noted that some of the recommendations it makes are nothing new as far as proposed reforms are concerned. For instance, as part of the reforms, the report proposed the establishment of an anti-corruption commission.
It is well and good to have such a commission, but its establishment will never transform South Africa into a country with a zero tolerance of corruption. The fangs of corruption and associated activities in South Africa are so deeply anchored in every part of our society that a different multifaceted approach is needed.
As the starting point, the ANC-led government must declare and decree corruption and State Capture to be a threat to national security. Such an approach was taken by US President Joe Biden on 3 June 2021, who established the fight against corruption as a core national security interest of the US.
“Corruption threatens United States national security, economic equity, global anti-poverty and development efforts, and democracy itself… [B]y effectively preventing and countering corruption and demonstrating the advantages of transparent and accountable governance, we can secure a critical advantage for the United States and other democracies,” said Biden.
Our government must focus on getting rid of the continuing ineffectiveness of our criminal justice system against corruption, particularly in law enforcement agencies. Building an anti-corruption agency on a rotten foundation is a disaster waiting to happen. The best we can do as a country before establishing such an agency is to put in place an implementable strategy to prevent and combat corruption and related crimes.
To this end, the National Prosecuting Authority (NPA) and other agencies must fearlessly pursue the enforcement of State Capture, corruption and corrupt practices including money-laundering through the existing legislative framework such as the Prevention and Combating of Corrupt Activities Act 12 of 2004, which the Zondo report wrongly referred to as “POCCA” instead of PCCA, and the Prevention of Organised Crime Act 121 of 1998, commonly referred to as Poca.
It must be evident to every member of our society that South Africa is no longer a haven of kleptocrats and undesirable individuals. Perhaps this is too much to ask from the NPA, because in December 2021 its head, Shamila Batohi, warned that an underfunded and overburdened NPA would be unable to prosecute all cases emanating from the Zondo Commission, and would have to pick and choose for maximum impact.
Assuming that an independent anti-corruption agency is established, it will be very interesting who will be approached to be part of its machinery. Fighting corruption must be a joint effort that can be led by bodies such as the Joint Standing Committee on the Anti-Corruption Commission and parliamentary oversight committees of anti-corruption/crime bodies.
The current bodies tasked to monitor and review the performance of the functions of the law enforcement agencies are ineffective and useless, unless Parliament has not been taking seriously their reports on matters pertaining to their respective functions.
In conclusion, one must acknowledge that the Zondo report came at a critical time, and its recommendations can spur the ANC-led government to implement changes to the current anti-corruption structure. It is how the government of the Republic of South Africa — both the governing party and the major opposition parties — respond to the report that will tell if indeed 2022 is the year of unity and renewal to defend and advance South Africa’s democratic gains.
After all is said and done, the questions previously asked remain: Can we trust the ANC to implement the recommendations of the Zondo Commission? Will any of the opposition parties have the political will and decency to rally behind efforts to implement the report? Can Parliament be the difference-maker and implement recommendations of the Zondo Commission?
“The main object of the report and its recommendations is to bring about improved systems and structures. The past misdeeds of individuals are of less concern, except as a basis for learning for the future.” These words of Tony Fitzgerald are so true for South Africa.
“Whilst nobody must escape with impunity, we also need to prioritise overhauling our criminal justice system. [I]t would be mistaken to believe that all or even a significant part of the misconduct was exposed. My intention was rather to try to establish better systems for the future and a basis for changed attitudes in the community,” said Fitzgerald, referring to his report. Hopefully, Justice Zondo will share the sentiments. DM