What Guptagate says about the rule of law in South Africa

27 May 2013

If any further evidence was needed that there is indeed a threat to the rule of law in South Africa, the recent Guptagate saga should convincingly provide it. Buttressed by the South African constitution, a bullish media, active civil society and independent judiciary have been trying to consolidate a situation whereby the law applies equally and fairly to all people in the country. However, as the Guptagate saga highlights, this principle has not yet taken root among many in the political elite.

The well-connected Gupta family clearly wanted to use a family wedding to display their wealth and power. Apart from the ostentatious celebrations at the Sun City resort, President Jacob Zuma was expected to speak at the event, which was also to be attended by many of the country's political elite. As a further demonstration of their sway, the Guptas actively sought to obtain special privileges when it came to transporting their foreign guests to the wedding venue.

They initially attempted to commandeer sections of the OR Tambo international airport for this purpose. When this failed, they applied to Defence Minister Nosiviwe Mapisa-Nqakulato use the Waterkloof air force base to land their private aircraft. According to Minister of Justice and Constitutional Development Jeff Radebe, this too was unsuccessful and as a result, ‘responsible persons' then ‘contemptuously manipulated the system to advance the wedding objectives at all costs'.

Somehow, the Guptas managed to persuade very senior state officials to place their careers at risk to allow them to use a strategic military base as their private playground. Moreover, they succeeded in directing 194 government officials and 88 government vehicles away from public service so as to serve their personal needs. A remarkably flimsy internal investigative report fails to provide any details as to why this was the case.

It is left up to the African National Congress secretary general Gwede Mantashe to explain to the world that the reason for this sorry state of affairs is ‘name-dropping'. Nineteen years into a constitutional democracy, senior government officials are apparently still not aware that they need formal authorisation when it comes to mobilising state resources.

Apparently many are content to act simply because someone drops the name of a politically powerful individual. According to Mantashe, name-dropping is ‘inherently a South African problem' that happens all the time. In this instance the names of President Zuma, Transport Minister Ben Martins and Defence Minister Nosiviwe Mapisa-Nqakulawere apparently used.

If we can believe the government report, which did not directly interview anyone in the Executive under oath, the President and the members of his cabinet were oblivious to this threat to national security. The glaring shortcoming of government's report is that it fails to explain why this happened.

Why, particularly, was it that the Guptas and Chief of State Protocol, Ambassador Bruce Koloane could get away with undermining state security by simply using the President's name? Is it because our cabinet ministers are not able to ensure that rules and regulations are followed? This seems at odds with all the achievements that these ministers claim for their departments before parliament each year.

A far more likely reason why name-dropping has traction is because our political leaders have not only allowed it to happen but have actively encouraged it. For some time now the message to public servants has been clear: the rules mean little if a politically powerful person is involved. There are many examples of this when it comes to the criminal justice system. National Director of Public Prosecutions (NDPP) Vusi Pikoli was dismissed when he upheld the law preventing anyone from interfering with his decision to prosecute former South African Police Service (SAPS) National Commissioner Jackie Selebi.

Similarly, when substantial evidence emerged that SAPS Crime Intelligence head Richard Mdluli was involved in widespread fraud and corruption, the Minister of Police amongst others in the National Prosecuting Authority (NPA), went out of their way to ensure that he was protected from investigation and prosecution.

It is generally recognised that the Guptas' intimate relationship with President Zuma is at the heart of this scandal. The Guptas used his name because they knew that they could. This would, for instance, also explain why public servants didn't think twice about directing over R200 million away from servicing the needs of the poor to upgrading President Zuma's private residence.

Furthermore, the consequences of not breaking the rules when President Zuma's name is involved can be quite detrimental. According to former intelligence head Gibson Njenje, the South African intelligence agencies investigated the Gupta family because of concerns about the possible threat they posed to the country's national security. However, allegedly because the Guptas are friends of the President, Minister of Intelligence Siyabonga Cwele stopped the investigations and three top intelligence officials were forced out of their jobs.

This way of exercising power has increasingly become deeply entrenched in the current administration. The Pikoli saga took years to resolve and demonstrated to the political elite that highly skilled public servants who are known for their integrity will not break the law and that it will be difficult to manipulate or remove them.

This arguably explains why, since then, a number of poor appointments have been made with regards to the leadership of our criminal justice system. For example, President Zuma subsequently appointed Menzi Simelane as NDPP; a man who was widely known to be ethically compromised and therefore more likely to be malleable to those in power.

Over time appointing ill-suited people to leadership positions has led to a substantial weakening of the ability of the criminal justice system to investigate and prosecute serious and complex crimes. This could explain the recent shortcomings in the collapse of the Andries Tatane murder case and the slap on the wrist for fraudster Arthur J. Brown.

Moreover, it has resulted in the weakening of the principle of the rule of law in South Africa. The ability of the state to undertake independent criminal investigations without the interference of politicians is limited. It is for this reason that the upper echelons of the political elite are seemingly immune from investigation by the SAPS. The Public Protector has therefore become the last bastion of independent investigations into political malfeasance. However, the Public Protector is not equipped to undertake forensic criminal investigations that could support the prosecution of alleged wrongdoers.

Moreover, the President needs to act on the recommendations emanating from the Public Protector's investigations which is why former SAPS Commissioner Bheki Cele and others have not been criminally investigated for their role in illegally trying to misuse R1,7 billion in the well-publicised police headquarter lease scandal. Similarly, it is unlikely that members of the Gupta family will face criminal investigations, as they should, for all the laws that were broken in this scandal.

Since Selebi's conviction, no senior member of the political elite has been held criminally accountable for acts of corruption despite mountains of evidence to the contrary. Ideally, this would mean that not a single member of the ruling political elite at the national and provincial levels is involved in corruption. The estimated R30 billion that gets stolen from the state each year can be solely blamed on the actions of public officials and their business connections. For some reason, all the national and provincial government ministers are helpless to intervene because, as the Gupta report expects us to believe, they are oblivious to what is going on.

According to Mantashe, name-dropping could be stopped by making it a disciplinary offence. However, given the lack of accountability for wrong-doing within the government, this would have as much impact as using name-dropping in its most positive sense - such as telling public officials that President Zuma and his cabinet ministers expect them to adhere strictly to South Africa's constitution and laws in all circumstances.

Gareth Newham is Head, Governance, Crime and Justice Division, ISS Pretoria. This article first appeared in the Institute for Security Studies' online newsletter ISS Today.

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