In all the noise and clutter around the formation of the coalition that is inaccurately known by the nickname GNU, one of the over-arching themes that sticks out is the need for the ANC to get real about countering serious corruption in SA. Whether it is David Makhura, former Gauteng Premier, pontificating about renewal or Nomvula Mokonyane, another former Gauteng premier, embracing accountability or even Cyril Ramaphosa’s latest letter on the subject of crime in general, it is plain that the message from the electorate has sunk in at last – clean up your act ANC, or face annihilation at the polls. The late Archbishop Tutu was one of the first to warn the ANC to “watch out” [https://www.youtube.com/watch?v=xLBe-ddhcio]
At the core of the dissatisfaction of the voters is the sentiment that the ANC has become a patronage machine, not the political party entrusted with the task of implementing the values and objectives of the Constitution. The latter, in the Bill of Rights, requires the state to respect, protect, promote and fulfil the human rights guaranteed to all in it. That these improvements and enhancements on the road to a better life for all have not occurred in thirty years of unbroken electoral dominance is notoriously well-known.
The ANC has lost, in terms of turnout, 17% of the votes it won in parliament in 2019. With only 16% of the electorate actually coming out to vote for it, the ANC is and has for some time been in serious trouble despite now having command of 40% of the seats in parliament. The DA on 22%, the MKP on 14,5% and the EFF on 9,5% have successfully reduced the ANC to a mere shadow of its former status as dominant party for the first thirty years of constitutional democracy under the rule of law in SA. Should it become necessary to return to the polls before 2029, when time runs out for the current seventh parliament, it is likely that further loss of popular support can be expected by the ANC. The ANC needs every minute available to it to rebuild its electoral image.
Seeing off the corrupt and loosening their stranglehold on the economy of SA is long overdue.
Shortly before the elections of May 2024 were held the President, under threat of litigation, signed into law the NPA Act Amendment Act of 2024. This wholly inadequate response to the unhappiness of the electorate with the levels of corruption is the country will not pass constitutional muster and is utterly underwhelming as the ANC answer to serious corruption.
On the very day that he signed the legislation creating IDAC, the investigating directorate against corruption, the president received an early morning email from Accountability Now which read, in part:
“Here is why both IDAC and the DSO (Scorpions) [its very similar predecessor which was dissolved in 2009 at the behest of Jacob Zuma, who was charged in 2007 with corruption, embezzlement and money laundering] do not adequately comply with the Stirs criteria laid down in terms that bind you and government:
Both are creatures of an ordinary statute passed by a simple majority in Parliament.
(b) Both are vulnerable to dissolution at the instance of a simple majority which wishes to repeal the said legislation.
(c) Both are located as a unit within the NPA and not within an independent structure such as the judiciary and Chapter Nine Institutions.
(d) The NPA is not independent and has been so badly gutted by State Capture that it will take years to recover from the ravages of the saboteurs deployed in its ranks to protect the corrupt.
(e) The NPA is operated as a programme within the Department of Justice, not independently.
(f) The NPA is subject to the minister of justice having final responsibility over it in terms of C179.
(g) The minister must concur in all prosecution policy, also in terms of C179.
(h) The NDPP and other leadership of the NPA are executive appointees, the former in your sole discretion.
(i) The accounting officer of the NPA is the director general of justice who is not even a member of the NPA.
(j) Due to its gutted state, the NPA will be incapable of recruiting the trained specialists needed to populate IDAC. They will baulk at possibly facing the same fate as the DSO.
(k) The NPA is grossly underfunded due to the ravages of State Capture and the general state of the economy, which corruption has largely caused.”
Needless to say, there has been no official response to the points raised in the email quoted from above. (Its reference to the “stirs criteria” is a mention of the qualities the highest court in the land expects to find in the anti-corruption machinery of state: Specialised, Trained, Independent, Resourced in guaranteed terms and Secure in tenure of office.)
This is not to say that the ANC has not been grappling with the demons of corruption that so beset it. Even Zizi Kodwa, formerly regarded as royal ANC game, has, because he is at long last facing charges of corruption, been required by the ANC to resign his position in parliament while he stands trial. The optics would otherwise be unbearable. He is not the only cabinet minister of the sixth administration to be fingered by the Zondo Commission. None of them has stood trial mainly due to the paralysis of the NPA rather than a lack of evidence against them.
The message from Makhura arising out of the deliberations of the NEC of the ANC at Boksburg in recent days is stark and harsh. “Renew or perish, ANC!” is the short version of what he had to say after being part of those deliberations. [https://www.enca.com/top-stories/ancs-david-makhura-says-party-must-renew-or-perish]
Mokonyane puts a more positive spin on the predicament of the ANC, pointing out that: “Everybody must be held to account” now that the ANC has belatedly discovered that the notion of accountability is a cornerstone of both the rule of law and the current SA Constitution. It even mentioned accountability in its 2024 manifesto for the first time. [https://www.businesslive.co.za/bd/opinion/letters/2024-08-05-letter-nomvula-mokonyane-should-fall-on-her-sword/].
As long ago as August 2020 the NEC of the ANC identified the need for anti-corruption reform. It gave specific instructions to the cabinet which have been ignored.
A year later Accountability Now produced draft legislation aimed at putting the stirs criteria in place for the first time in SA. These drafts were presented to the NPA as well as the executive and legislature at national level. Eventually, after inordinate delay, the Constitutional Review Committee of the National Assembly gave Accountability Now a hearing on the topic of reform to introduce effective and efficient machinery so signally absent from the criminal justice system in SA for ever so long.
The written part of the submission so made on 17 March 2023, exactly twelve years after the binding decision of the Constitutional Court in the case now known as Glenister 2 was handed down is contained in “Under the Swinging Arch” as Appendix 6:
“Accountability Now welcomes the opportunity to interact with the Constitutional Review Committee on the subject of introducing a new Chapter nine Institution in the Constitution; a standing commission that is given a mandate to prevent, combat, detect, investigate and prosecute serious corruption. The abbreviation Ch9IC is used in this submission. The concept “serious corruption” will have to be given a legislated definition after debate during the parliamentary law-making process. A suggested minimum value of R 5 million in loot has been made in the drafts published and supplied to Parliament and the Executive in August 2021 by Accountability Now.
The National Prosecuting Authority (NPA) has noted the drafts without commenting on the cut-off minimum value. The NPA will retain its current jurisdiction to prosecute corruption that falls below the minimum value. The Ch9IC will take over corruption cases involving more than the minimum amount decided upon after debate in parliament, including public participation in that debate.
The Chief Justice has remarked that “an army of prosecutors” will be needed to follow up on the recommendations in relation to serious corruption prosecutions that have been made in the report of the State Capture Commission (SCC) which he chaired. The NPA does not have such an army nor will it be able, with the best will in the world, to muster the expertise, experience and skilled human resources required for successful prosecution of serious corruption cases.
Like the SCC, most of the larger political parties accept that there is a need to reform the criminal justice administration due to the ravages of state capture on it and the current deliberately contrived and ongoing dysfunction in it. These missteps were intended and designed to extend impunity indefinitely for those implicated in serious corruption. The NEC of the ANC resolved in August 2020 that cabinet urgently establish an independent, stand alone, specialised and permanent anti-corruption entity.”
Greater detail of the history of the failure of government to respect and implement the decisions in the Glenister litigation is furnished in Appendix 6 of “Under the Swinging Arch” which is accessible electronically by googling the title of the book.
The clock is ticking on the 100 days within which the DA intends introducing its bills that are based on the suggestions discussed above as made by Accountability Now.
The choice facing the ANC is to support the bills or run the risk of the GNU collapsing, which could perhaps precipitate an early general election. There are indications that the ANC reasonably fears facing the electorate again before its renewal project bears fruit.
The choice is not being made easier by the current inaccessibility of the records of the Zondo Commission to the NPA which may be regarded as, and certainly has the effect of, sabotaging all efforts to hold those responsible for state capture to account. Furthermore, the failure to, or possibly deliberate delay in, bringing the palpably unconstitutional Investigating Directorate Against Corruption into being raises eyebrows. Its non-emergence from the legislative process may be an indication that the new cabinet and the new minister responsible are rethinking the future of anti-corruption strategies in SA.
One thing is certain: if the GNU decides to continue with the current set up and to shelve the DA’s suggested radical reform of the capacity of the criminal justice system to counter serious corruption and organised crime, there will be public interest litigation aimed at the proper enforcement of the Glenister decisions and at striking down IDAC as unconstitutional.
The GNU should go back to the drawing board now rather than being told by the courts to do so. The DA’s bills await parliamentary consideration, debate and a robust public participation process. Renewal on this front ought to be a priority of any government that is committed to the rule of law and respectful of court decisions. The only known alternative is to perish as David Makhura has wisely said.
Paul Hoffman SC is a director of Accountability Now, he was lead counsel in the Glenister litigation.
14 August 2024.
