Chief Justice Raymond Zondo hands over the final judicial commission on the State Capture report to President Cyril Ramaphosa. Picture: Oupa Mokoena
OPINION: Should President Cyril Ramaphosa, after pondering Chief Justice Raymond Zondo’s recommendations to deal with state capture, decide that an independent anti-corruption body is warranted, that body will have to be independent beyond just its description. Zondo’s recommendations go much further, in fact, to the elimination of the executive from all stages of public procurement.
By Moepeng Talane
The state capture commission’s report is in, and President Cyril Ramaphosa is applying his mind to the recommendations made therein. Meanwhile, public confidence in the ability of the state institutions charged with bringing guilty perpetrators to book dithers between complete hopelessness and the nagging sense of loyalty to give things “one more chance.”
There is a strong need for an anti-corruption project that will finally work, where consequences and accountability will follow corrupt acts that interfere with service delivery. The commission has provided a pause-and-reflect moment that cannot go to waste.
Many questions have been asked – albeit phrased differently – of Corruption Watch, about what the long-term solution to the corruption or state capture problem in South Africa is, what state institution reform should look like, and whether or not we have it in us as a country to establish a governance system that is fully respected and that will protect us from all forms of corruption.
While the answer may not be a simple yes or no, the question gives us an opportunity to look first into what is lacking currently and what tools are potentially required to fill those gaps.
Public procurement in dire need of reform
A good place to start is in what commission chairperson Chief Justice Raymond Zondo characterised as a gradually failing public procurement sector that lost its way because it became decentralised, and everyone made up rules as they went along. It was not an overnight event, but one that transpired over two decades or so with no political resolve to arrest it.
From the challenge of a fragmented monitoring, correcting and consequence management system, to what several witnesses during hearings described as un-enforceable legislation, public procurement, the inadvertent bedrock of South Africa’s corruption problem, is close to being in shambles if nothing is done, and urgently. The laws that govern it are well intended, but have been greatly exploited, as the commission found.
Think of government as a body with two hands, like humans, who generally need one to capacitate the other to be productive. Without one hand knowing what the other is procuring, for how much, with what intention and for what public good, it is rendered incapacitated to do the checks and balances necessary and to enforce punishment where required. A great example of the indiscriminate undermining of procurement laws is in the Transnet findings of the commission’s report. The state owned entity accounts for R41-billion of the R57-billion found by Zondo to have been lost to state capture.
So, if the major locomotive procurement projects within Transnet had been undertaken in an environment where the country has a central anti-corruption body independent of executive oversight and equipped for procurement checks and balances, could the figure have been the same?
Exclusion of the executive ensures independence
A running theme across many of Zondo’s recommendations for reformative measures is the exclusion of the executive from all stages of public procurement. Among other arguments, he makes a case for an anti-corruption agency that borrows from the model of the Competition Commission.
Its complete independence is the ultimate distinguishing factor, and should be protected not only by law, but by all leadership, without fear or favour.
The judicial debates that Zondo points to in this regard – Glenister v President of RSA in the Constitutional Court – emphasise the independence of anti-corruption bodies, and remind us of why the element of public confidence in state institutions will always be important. The independence of any constitutionally instituted state organ that will investigate corruption is vital to all of us who are protected by the Constitution. The reason we are divided over our current confidence levels in the National Prosecuting Authority, the Hawks and like other commissions before Zondo’s, is that their independence has come into question more times than we can be comfortable with. So the institution that will reverse the tide of the disabling corruption we witness and suffer from, will have to be unequivocally independent.
Delivering the minority judgment in the Glenister matter, former deputy chief justice Dikgang Moseneke and former justice Edwin Cameron found differently from their colleagues. Arguing for the full independence of the incoming Hawks, after its predecessor the Scorpions had been disbanded, they made this profound statement: “The Constitution enshrines the rights of all people in South Africa. These rights are specifically enumerated in the Bill of Rights, subject to limitation. Section 7(2) casts an especial duty upon the State. It requires the State to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. It is incontestable that corruption undermines the rights in the Bill of Rights, and imperils democracy, to combat it requires an integrated and comprehensive response. The State’s obligation to ‘respect, protect, promote and fulfil’ the rights in the Bill of Rights thus inevitably, in the modern State, creates a duty to create efficient anti-corruption mechanisms. What independence requires is freedom from the risk of political oversight and trammelling, and it is this very risk that the statutory provisions at issue create.”
On the question of oversight of such an institution, we need further honest debate over several factors: the capacity of Parliament – should the anti-corruption agency be envisioned as a constitutional body answerable only to Parliament – for another Chapter 9 institution; its funding model; and the level of transparency required in that regard to avoid undue influence, among others. There would also have to be consideration for the use of the skills and capacity of whistle-blowers who are often left financially deprived after their courageous efforts.
As Ramaphosa ponders over the recommendation for the establishment of an anti-corruption agency, he does so in circumstances where the fitness for office of the country’s public protector is being investigated, the incumbent suspended. This signifies, among other things, that we are a long distance away from the ideal of a centralised anti-corruption institution that is fit for reversing our corruption struggles, but it does not mean we cannot start somewhere.
* Moepeng Talane is a senior journalist at Corruption Watch