INDEPENDENT NEWSPAPERS
Minister of Public Service and Administration,Lindiwe Sisulu. Picture: Phill Magakoe
The announcement by minister Lindiwe Sisulu that soon there will be yet another corruption fighter in the arsenal of state institutions has been met with a tepid reception from civil society.
Deservedly so. It was Albert Einstein who defined insanity as repeatedly doing the same thing and expecting a different result.
The proposed Anti-Corruption Bureau will join 13 other state institutions that are aimed at combating corruption. Institutions that are not making the sort of dent in corrupt activities that one would hope would be the case. The minister acknowledges this, but nevertheless, without regard to Einstein’s warning proceeds to create yet another “Mickey Mouse”-style unit to deal with the scourge of corruption in the public administration.
At the same time the Minister of Justice, Jeff Radebe, makes a huge fuss of a few minor fraud convictions and the limited success of the Asset Forfeiture Unit in recovering the proceeds of the crimes.
None of them amount to grand corruption and no one is really fooled by the huffing and puffing that is going on in anticipation of the elections next year.
The truth, still unpalatable to those in the government, is that the fight against corruption simply cannot be won without the appropriate structural and operational framework being put in place. This is the finding of the Constitutional Court in the seminal Glenister case and it is also the outcome of the research of the Organisation for Economic Co-operation and Development boffins who have studied means of fighting corruption.
It is also the experience of the country when the task of fighting corruption was so well executed by the Scorpions that they were urgently disbanded by nervous politicians who were busy promoting one of their number, a man with 783 charges of corruption against him by the Scorpions, to the presidency of the country. The qualities of an effective anti-corruption entity are singularly lacking in all of the institutions at present. Adding a similar institution or “bureau” is not going to be helpful. Effective anti-corruption work is only carried out by units which have a sufficient degree of independence from political interference and outside influences.
The Hawks, who replaced the Scorpions, are yet to land a big fish. They won’t either. This is because they are a unit within the SAPS, which is managed and controlled by a political appointee, the chief of police, who in turn takes her instructions from the minister of police, a politician who holidays behind a security wall paid for with taxpayers’ money. That minister sees no need to refund that money, which was meant to be spent on crime intelligence. It will be interesting to see how the chief of police, wearing her “accounting officer for SAPS” hat, fudges that expenditure in her financial statements.
The criteria that the Organisation for Economic Co-operation and Development have set for effective anti-corruption activity are fivefold. The unit should be specialised. The Hawks are not; they deal with all types of “priority crime”, as determined by the minister.
There ought to be special training of the unit. This the Scorpions did receive, in abundance; the Hawks do not.
Independence from political interference and influence is the vital criterion. The Hawks are far from insulated from this, given their positioning in the hierarchy of the SAPS. Proper resources for the anti-corruption entity are vital – politicians should not be able to starve the unit of funding as they attempt to do in the case of the public protector.
Security of tenure of officers in the anti-corruption entity, affording them a measure of immunity against being fired for going after the big fish, is markedly absent in the set-up in South Africa.
Who will forget the fate of Vusi Pikoli, who stood up against the cabinets of presidents Thabo Mbeki and Kgalema Motlanthe in his determination to go after big fish of the size of Jackie Selebi and Jacob Zuma? For the former he was suspended, spuriously so, for the latter he was dismissed, illegally so.
He had to be satisfied with handsome damages, but he has not been able to serve the people again as their national director of public prosecutions.
Truth be told, the country has not had an independent NDPP since September 2007, when Pikoli was suspended. Acting appointees, whatever their calibre, are vulnerable simply because they are only “acting”. The less said about mendacious Menzi Simelane, irrationally appointed on the recommendation of Radebe to succeed Pikoli, the better. Surprisingly, he has resurfaced as special adviser to minister Lindiwe Sisulu, who obviously learned nothing from her experiences with Paul Ngobeni – another “re-deployee” foisted on her.
No effort has been spared to place a strangled interpretation on the ruling in the Glenister case, which required that remedial legislation be passed to create a unit with an adequate degree of independence to be an effective corruption buster. The Hawks, instead of being replaced by Eagles (which, as everyone knows, fly higher, see further and go after bigger prey than the less populous Hawks), have had the legislation pertaining to them tweaked as little as possible.
Minor changes to the status ante quo have been effected, but the essence of the Hawks remains unaltered. They answer to the executive branch of government, not to the legislature, as is the case with the Chapter Nine institutions. Accordingly, their degree of independence is questionable, and is being questioned by both the Helen Suzman Foundation and Hugh Glenister (again) in an application challenging the constitutionality of the new dispensation for the Hawks.
The Constitutional Court expressly stated that: “Our constitution points to the cardinal need for an independent entity to combat corruption… our law demands a body outside executive control to deal effectively with corruption.”
The new legislation is designed to “align” the law with the judgment.
How a lowly unit in the SAPS, managed and controlled by Riah Phiyega (a political and presidential appointee) and answerable to the minister of police, can be described as “a body outside executive control” is difficult to imagine.
But this does not dissuade the government from opposing the applications now pending in the high court with all the forensic talent that can be mustered. The “Stalingrad Strategy” so often rolled out from the bowels of Luthuli House is once again evident. As the Anti-Corruption Bureau is not specialised, independent, properly trained and resourced and as no security of tenure is offered to its employees, it will be no more effective than the 13 units that it joins in dealing with the corrupt among us, whether in the government or in the private sector.
The experiences of an honest public servant, Kantha Padayachee, who blew the whistle on the “amigos” who allegedly supplied water purification equipment to the KZN Health Department without tenders but with donations to the ANC, will be replicated should any bureau member be so ill-advised as to query corruption involving powerful (and not so powerful) political players.
That all charges against those fingered by Padayachee have been dropped is disgraceful. It illustrates the extent to which the credibility and independence of the prosecution service has been compromised since the days of Pikoli. Days so long gone that Selebi, charged in 2008, is the last big fish to be tried for corruption.
It is to be hoped that the pre-election posturing of the ministers will be seen for what it is – mere lip-service to the fight against corruption, totally bereft of any political will to actually do what needs to be done. The cabinet members should take the medicine that the Constitutional Court has prescribed and uphold the constitution as their oaths require of them.
* Paul Hoffman SC is a director of the Institute for Accountability (www.ifaisa.org).
** The views expressed here are not necessarily those of Independent Newspapers.
The Mercury
