DOCUMENTS

How to combat corruption (I & II)

Cherese Thakur writes on the conversation between various stakeholders on dealing with this endemic problem in SA

Conversations about corruption I – The national anti-corruption strategy and procurement reform

7 August 2018

THE HERE AND NOW

Where were you on 14 February 2018? South Africans will remember – many were rooted in front of screens of televisions or streaming devices, watching President Jacob Zuma resign. In a sense, this act divided recent South African history into two periods: the “Zuma years” and “everything after Zuma”.

Few would refute that the hot issue of the Zuma years was corruption. While corruption existed before Mr Zuma’s ascension to the presidency, it seemed that during his terms the country became mired in it. It permeated throughout all levels in society: from lower level opportunistic deals taking place in local government, road traffic authorities, the police, and offices administering housing and social services, to corruption writ large in the form of state capture. There was a perception that the hard work of bringing about a peaceful transition to democracy was being undone by individuals seeking to abuse positions of power for their own material benefit.

The threat to South Africa’s constitutional democracy gave rise to renewed efforts from several non-governmental organisations (NGOs) dedicated to fighting corruption and abuse of state resources. Extensive litigation was launched regarding accountability and the strengthening of democratic institutions to withstand corrupt influences. Research and academic works were produced considering appropriate mechanisms to address corruption. People were inspired to mobilise and protest. There was a concerted effort by various stakeholders to chip away at the structures enabling corruption in public institutions.

THE WAY FORWARD

Those stakeholders - intimately acquainted with the struggle against corruption in public institutions as they are - knew better than to regard the events of 14 February 2018 as a panacea. Rather, that day marked the start of a period of opportunity. The hope is that the Ramaphosa presidency heralds the commencement of bona fide investigations and that information will be made available to the public, criminal charges will be pursued where appropriate, and public funds lost to corruption will be recovered. The ultimate goal is for a public service that uses public funds in an effective manner to serve the people.

But how to reach that goal? Over the past few months, stakeholders have been coming together to find answers to that question. This brief serves to collect some of the ideas shared at these gatherings in an attempt to plot the key points in the roadmap in the battle against corruption. These gatherings attended by the HSF were as follows:

The Gauteng public engagement workshop held on 5 June 2018 with regard to the development of the National Anti-Corruption Strategy (NACS);

A roundtable discussion on professionalising public procurement hosted by the Public Affairs Research Institute (PARI) on 12 June 2018;

The launch of a special interest group on public procurement law by the Administrative Justice Association of South Africa (AdJASA) which took place on 18 June 2018;

A workshop held on 21 June 2018 by the Institute for Security Studies (ISS) regarding the strengthening of civil society’s role in promoting government transparency and accountability for reducing corruption;

A discussion hosted by PARI concerning the role of civil society in deepening the fight against state capture on 26 June 2018; and

A forum entitled “Civil Society III” convened by Corruption Free Africa held at the Pan African Parliament on 5 and 6 July 2018.

Naturally, there was a degree of overlap in these discussions. Rather than attempting to provide a detailed record of each event, this brief will set out insights from these various events will be collected under themes which, taken together, will provide an overview of important areas of focus going forward. In this Part I of a two-part series, NACS and procurement reform will be examined.

THE NATIONAL ANTI-CORRUPTION STRATEGY

Is there a comprehensive state plan to deal with corruption? As part of the Medium Term Strategic Framework 2014 – 2019, the South African government appointed a Steering Committee to develop the NACS with the aim of

developing a set of shared commitments across sectors, to support collaboration within and between sectors, and to direct renewed energy towards the goal of reducing corruption and building an ethical society”.

A discussion document was published in 2016, setting out proposals for the NACS[i]. The document outlined objectives, described the conceptual framework, and most importantly, set out nine mutually supportive “strategic pillars and programmes” that would be used as the foundation of the NACS.

The purpose of the public engagement workshop was to obtain additional inputs from stakeholders and to raise awareness of the NACS. It was attended by a broad spectrum of stakeholders, including representatives from local, provincial, and national government; members of civil society; representatives of the Public Service Commission (PSC); civil servants; members of the academy; and others.

It is clear that much work had gone into developing the discussion document, and the Steering Committee was making every effort to ensure that their strategy had “buy-in” from stakeholders. The “nine pillars” approach is indeed helpful in setting out a broad indication of what an anti-corruption strategy should entail, and the attempt to concretise a plan for the future is laudable. The nine-pillar approach does not, however, address the fundamental question of who is tasked with carrying out the action steps listed under each “pillar”, how that person will acquire or be provided with the resources to do so, and who is responsible for monitoring compliance with the strategy. Responsibility is vaguely apportioned to “government, business and civil society sectors” without any degree of particularity. It is also not clear whether the NACS will have any binding force on stakeholders. Hopefully, these concerns will be addressed in the process of developing the final strategy.

The public consultation workshop served as a forum to hear about participants’ experiences with corruption and what they are doing to fight it. The following questions were put up as a way to frame the discussion:

Who are the people who are engaged in corrupt activities?

What are their motivations?

What are their enabling factors? What are the deterring factors?

Should dealing with corruption be incorporated into disciplinary process?

What factors are there to encourage people to blow the whistle?

What mechanisms are in place to ensure that accountability moves upwards?

These wide ranging yet penetrating questions were a useful point of departure for stakeholders and should continue to be considered in dialogue about corruption. In the course of discussion, participants proffered their own answers to the questions as informed by their experiences. Some suggested a focus on local government, where corruption proliferates unchecked (and over which the PSC has no jurisdiction). Others pointed to low morale in the public sector as a factor that influences people towards corruption (or away from reporting it once discovered). The idea of an open tender system was pitched. At times, the conversation moved to broader systemic issues, such as the reform of the electoral system to allow for more accountability through voting. On the other end of the spectrum, practical issues such as the efficacy of government corruption hotlines was debated. In addition, the idea of concentrating anti-corruption efforts in a single institution was mooted. When prompted to provide a “wish list” for fighting corruption, the following suggestions were made:

Legislation regarding illicit financial flows;

Enforcement of legislation currently in place to fight corruption;

Transparency in procurement; and.

The commencement of the Public Administration Management Act 11 of 2014

Given the wealth of information shared, it is clear that the public consultation workshop was an invaluable step in developing the NACS. It is unclear, however, when this process is expected to be completed. The workshop, which took place in June 2018, was scheduled to have happened in January 2017 according to a “roadmap” setting out the timeline for the process.

The NACS will, on the whole, probably be of benefit. However, at the point where there is renewed impetus to root out corruption, it is apparent that the process is woefully overdue. It’s unclear whether the strategy will be finalised by the end of the Commission of Inquiry into State Capture headed by Deputy Chief Justice Raymond Zondo (Zondo Commission). And even if it is, revelations from the Zondo Commission may have shifted the goal posts by that time. NGOs dedicated to fighting corruption have to move quickly to keep up with developments. Will this behemoth of a strategy be nimble and responsive when it matters? Time will tell.

For now, the NACS (and its development process, including public consultation) can serve at best as a lightning rod for issues, opening up space for sharing of ideas and experience. And maybe, once finalised, it can serve as a coordinating mechanism. Until then, and while the process plods along, other stakeholders will continue the relentless task of tackling corruption at all levels.

THE NEED FOR INNOVATION IN PUBLIC PROCUREMENT

It is well-known that public procurement is rife with corruption. This awareness can be attributed to the extensive media coverage given to cases of tender fraud and irregularity. Another factor that no doubt plays into the public consciousness is the starkness of the figures involved laid out in black and white - including the stunning R10 billion contract awarded to Cash Paymaster Services (Pty) Ltd by the South African Social Security Agency, subsequently deemed invalid by the Constitutional Court[ii]. Few would argue that public procurement in South Africa is ripe for reform. The scale of the problem necessitates fresh, innovative approaches to public procurement.

Mr Kenneth Brown, the former Chief Procurement Officer, highlighted some of the challenges he experienced during his tenure[iii]. Mr Brown was critical of the current legislative framework concerning procurement, including the oversight role afforded to Treasury to investigate instances of wrongdoing. This ineffective system should be modified to provide for the inclusion of clauses regarding accountability in supply chain management in performance contracts.

Other reforms proposed by Mr Brown include:

A system of registration for officials that would facilitate their disbarment from working in procurement if found to have acted with impropriety. This guards against officials being moved between departments once adverse findings are made against them.

Ensuring that people in procurement are properly skilled. Currently, public servants are process-orientated, which lends itself to a “tick-box” approach to procurement. They need to be upskilled to be agile in confronting issues in procurement as they arise.

Systems need to be modernised. This includes an e-commerce system for routine goods and services.

There needs to be “strategic sourcing” when creating bids. This means that before procurement goes out to tender, pre-work – such as research on market-related prices for goods and services – needs to be done.

Mr SollySegoa gave helpful insights from the office of the Auditor General[iv]. He put up graphs showing that irregular expenditure has been increasing since 2008, pointing out how supply chain management failures arise from inappropriate planning, deviation from intended results, overcharging, losses, and fruitless and wasteful expenditure. The shortcomings among supply chain managers are severe: they are failing to meet obligations such as obtaining three written quotations, inviting competitive bidding, and following the preferential point system. How does this recalcitrance come about? His view is that the root causes are unfilled vacancies and instability in leadership, inadequate skills, political infighting (particularly in local government) and the actions (or inconsistent actions) of leadership.

But all is not lost: he pointed to the proposed amendment to the Public Audit Act[v] which has been passed by both houses of Parliament and now awaits presidential assent. This amendment gives additional powers to the Auditor-General and makes the recommendations from that office binding. Other promising changes include the granting of certain powers relating to investigations, and the power to issue a “certificate of debt” against an accounting officer or accounting authority who fails to implement remedial action prescribed by the Auditor-General following an investigation. It is hoped that by enhancing the powers of this key office, irregular expenditure will be curtailed.

Another piece of proposed legislation that promises to bring about sweeping changes to public procurement is the Public Procurement Bill. Mr Brown discussed how the process for the development of the Bill was completed in June 2016, but it was shelved shortly thereafter. It gave extraordinary powers to the Chief Procurement Officer, such as disbarring persons found to have committed wrongdoing from doing business with the state. It also gave certain powers of investigation. In 2017, the then-Minister of Finance Mr MalusiGigaba stated that key objectives of the draft bill included providing for supplier development for procurement, providing for targeting designated groups and breaking down barriers to entry by reducing the administrative burden on prospective suppliers.[vi]

Rather unusually, the Bill has not been made public. Professor Geo Quinot from the University of Stellenbosch stated that no green paper or white paper was issued in relation to this Bill[vii]. Therefore, the public was not afforded any opportunity to analyse the Bill or the framework within which it was developed. This raises questions as to what closed-door machinations were behind the Bill and the subsequent decision not to proceed with its passage through Parliament. If the Bill is indeed as it has been described, then it is sorely needed to address some of the deeply-rooted problems in procurement. The public should – at the very least – be given reasons why its progress was stalled.

Prof Quinot went on to detail his expectations for the Procurement Bill. These are:

Statutory consolidation, to address the highly fragmented nature of South African procurement law. Prof Quinot noted that there are presently at least twenty primary, specific pieces of legislation concerning procurement. There is also subordinate legislation that applies. However, the “meat” of the rules regarding procurement is to be found in each entity’s Supply Chain Management (SCM) policy. There are also problems within industry-specific standards. An example of this is the construction industry, where standards for infrastructure procurement, Construction Industry Development Board regulations and the Preferential Procurement Regulations of 2017 apply, without a clear hierarchy between them. The inherent complexities in consolidation must be drawn to Parliament’s attention before embarking on statutory reform in this regard.

Institutional arrangements, such as considering whether the retention of the Office of the Chief Procurement Officer is necessary or desirable. Prof Quinot’s view is that this office has not achieved regulatory success and its placement in Treasury is problematic from the perspective of accountability. Municipalities present unique challenges in that national government has no power to make rules regarding the conduct of local government, which is subject to the Municipal Finance Management Act[viii].

Preference. Prof Quinot suggests that the Preferential Procurement Policy Framework Act[ix] is too rigid, and the preference system should be replaced with new regulations. These regulations should allow for flexibility in the rules and set categories for preferences.

Remedies. Prof Quinot characterises the current remedies regime as “blunt and unsophisticated”, with an over-reliance on judicial review. A mechanism to deal with disputes before parties turn to judicial review should be investigated. A remedy in the form of compensation for an unsuccessful bidder together with the protection of the contract needs to be given serious consideration.

The usage of transversal contracts[x] and “piggy-backing”[xi] in procurement is another contested issue. It was pointed out that the gold standard in procurement is to follow the prescribed process. These types of contracts offer means to circumvent that process. Transversal contracts and piggy-backing have the potential to undermine competition by excluding small companies, but the flipside of this is that including small companies can undermine cost-effectiveness. A coherent policy that balances these concerns and is strictly adhered to is required.

CONCLUSION

It is clear that working to end corruption requires a multi-pronged approach. Reform of procurement processes is one crucial aspect. As became evident from the various discussions attended, there are many ideas on how to do this. But the failure of a major intervention in the form of the Public Procurement Bill shows a worrying lack of political will.

On the other hand, government support is not lacking for the NACS, but there is no guarantee that the project will affect levels of corruption.

Part II of this brief series will go on to consider the role of technology, education, and the public in the fight against corruption. Some practical solutions and the impact of the Zondo Commission will also be discussed.

Part II follows below.

Footnotes:

[i] Detailed information on the NACS, including the discussion document, can be found at https://www.gov.za/AntiCorruptionStrategy.

[ii] See AllPay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others[2013] ZACC 42; 2014 (1) SA 604 (CC); 2014 (1) BCLR 1 (CC).

[iii] Mr Brown was speaking at the “Professionalising Public Procurement” roundtable discussion hosted by PARI.

[iv] Mr Segoa was also speaking at the PARI roundtable discussion.

[v] 25 of 2004.

[vi] See an article published by Sabinet at http://www.sabinetlaw.co.za/finances/articles/draft-public-procurement-bill-way-0 dated 6 October 2017.

[vii] Prof Quinot was speaking at the launch of AdJASA’s special interest group into public procurement.

[viii] 56 of 2003.

[ix] 5 of 2000.

[x] A “transversal contract” is defined as “centrally facilitated contract arranged by the National Treasury for goods or services that are required by one or more than one institution” (see http://www.treasury.gov.za/divisions/ocpo/ostb/contracts/Guide%20to%20Participation%20in%20Transversal%20Term%20Contracts.pdf). In essence, these are contracts that are for the procurement of goods or services required by more than one department in government, provided that such contract is cost-effective and in the national interest. See also P Bolton “Grounds for dispensing with public tender procedures in Government Contracting” [2006] PER 7 accessed at http://www.saflii.org/za/journals/PER/2006/7.html.

[xi] “Piggy-backing” takes place when a department elects to procure goods or services from a service provider who is already providing the same goods or services to another department (the procurement of which took place in the ordinary course). Importantly, the “piggy-backing” department must enter into a contract that is identical with respect to terms and conditions to the contract concluded between the service provider and the original procuring entity.

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Conversations about corruption II – Technology, education, public mobilisation and practical steps

INTRODUCTION

Stakeholders who are trying to rid South Africa of endemic corruption have, in the last few months, come together to share their perspectives and approaches to this problem[i]. The purpose of this brief series is to collect insights so that they can be disseminated more broadly. Part I of the brief series focussed on the National Anti-Corruption Strategy (NACS) and how the procurement process can be reformed to prevent corruption. Part II will focus on some of the broader solutions that were proposed, such as using technology, education, and public mobilisation, as well other practical steps.

CAN TECHNOLOGY PROVIDE SOLUTIONS?

The association between technology and corruption is not an obvious one, but stakeholders are increasingly recognising the value that technology can add to anti-corruption efforts. This idea is gaining traction globally[ii]. While South Africa would do well to take part in this trend, the country’s unique circumstances require solutions that are tailored to its particular needs and limitations.

Technology has great capacity to enhance transparency, because of its impact on the ways that information is captured, stored, processed, shared, and disposed of. Advances in technology can offer a “window” into government, allowing the public to keep watch and report irregularities. Presently, the public is able to access government information by making a request in terms of the Promotion of Access to Information Act[iii] - but Ms Amanda Shivamba from Corruption Watch stated that, in her experience, this process is slow and actually impedes attempts to fight corruption[iv]. There needs to a be a shift towards ensuring that relevant state information (with certain exceptions, such as information that could harm state security or infringe personal privacy) is captured and made available to public forums.

In the context of procurement, Mr TsangaMukumba from the Legal Resources Centre, criticised current systems as difficult to penetrate and a bar to transparency[v]. One way that technology is currently being used to enhance transparency is through the “e-tender” portal for the issuing of tenders, which is an initiative of the Office of the Chief Procurement Officer[vi]. This system makes information regarding issued tenders available not just to bidders, but to the public at large. Once bids are awarded, this information is also uploaded to the portal. This is a valuable first step, but thought must now be given as to how this initiative can be further enhanced, such as by including pricing of the bids received. A bolder step would be to anonymise bids.[vii]

In addition to the e-tender portal, the Central Supplier Database (a “consolidated list of all supplier information for national, provincial and local government”) has gone some way to ensuring the legitimacy of bidders by verifying their information and recording data on past transactions with government.

Former Chief Procurement Officer Mr Kenneth Brown argued that automation can be used even when creating tender documents to minimise non-responsive tenders[viii] being submitted[ix]. Procuring entities could enter their needs into a system that would generate the tender in accordance with pre-programmed requirements.

Systems can also be designed to track government employees and potentially disbar them from working in government if they are found to have engaged in corrupt activity. One public servant who participated in the public consultation regarding the NACS stated that there is presently no such system and that his experience is that these employees can get “lost in PERSAL (the Personnel and Salary Information System of Government) [x]” – allowing them to move into other government posts even after having being exposed.

Technology can be used to track funds that are not accounted for. Though not perfect, this can be used as a proxy for funds lost through corruption. The tracking systems can collate data from various departments, refine it, and show up which departments are hotspots for fruitless and wasteful expenditure. The officials in those departments could then be subjected to lifestyle audits.

Enthusiasm for technology-based anti-corruption approaches must be tempered with an acknowledgement of the challenges that technology brings with it. It is vital that the integrity of data is protected, whether it be from system error, human error, and intentional attack. In addition, privacy concerns must be taken seriously and safeguards should be worked into the system where possible. Data from these systems should be collected and reviewed on an ongoing basis to ensure that they are functioning optimally.

While these solutions are not a cure for corruption, they have potential to contribute. Any intervention that closes the net around the corrupt should be welcomed. However, the will to pursue this technology must be developed by government, otherwise it will be left to other stakeholders such as civil society to develop and test it. The resource-intensiveness of the initial development must be weighed against the potential benefits which – if the technology is successful – could accrue far into the future.

CULTURAL INTERVENTION”, ETHICS TRAINING, AND EDUCATION

Stakeholders in anti-corruption efforts frequently ask themselves how did we get here? Increasingly, the answer put forward is a failure of institutional culture that allows (or even enables) people in the public and private sectors to engage in corrupt activities. Whereas ramping up enforcement mechanisms is a reactive response, attention is increasingly turning to preventative measures. One proposed measure is a “cultural intervention” within state departments and the country as a whole, emphasising the value of integrity and ethics in the public and private spheres.

Dr Terence Nombembe, the chair of the Ethics and Anti-Corruption Advisory Council (Ethics Council), proposed that an “integrity pact” must be concluded with those in government[xi]. Representatives from the Ethics Institute further confirmed the importance of institutional culture and argued that attention needs to be given to how recruitment is conducted, who is recruited into public service, and the content of induction programmes at institutions. Integrity is more than a good work ethic: there is a need to professionalise the workforce with the right values.

A culture of ethics must be infused into the work environment. This can be done by placing ethics officers in government departments – either by new appointments or by training existing employees and expanding their roles. Mandatory special training regarding culture, ethics, and integrity can be provided to ensure consistency in approach across departments. Academic institutions have a role to play, such as by establishing a specialised school for government or developing training materials.

Education also can be used to build capacity in the civil service to minimise non-compliance with procedure not due to corrupt intent, but rather due to lack of skill or knowledge. This is an entirely separate risk. Once non-compliance due to insufficient skills is weeded out by the provision of training and support for underequipped employees, cases of corruption will be made more apparent, thereby enabling a more targeted response.

What about the public at large? When those in high office set a poor example of ethical conduct, it is no surprise that there is non-compliance with the law among the general population in matters such as taxes, UIF payments, and the like. In addition, bribery – such as in relation to traffic offences and the acquisition of licences and permits – is prolific. The proposed solution to these social ills is to foster a robust and healthy civic culture.

A starting point advocated by Professor Thuli Madonsela[xii] would be to make training in ethics and anti-corruption mechanisms part of school curricula. In addition, civic education campaigns can be embarked upon, driving home the message that engaging in corruption and bribery is a shameful act. The “human factor” in corruption must not be overlooked. While stakeholders acknowledged that these efforts might take years to bear fruit, it is an important foundational step in preventing future corruption.

MASS MOBILISATION AND PUBLIC INVOLVEMENT

In the course of their discussions, the stakeholders were clear: corruption is everyone’s problem. Anti-corruption efforts are bound to fail if not buttressed by public support. The last three years have seen increased public mobilisation against corruption[xiii]. This is important, as visible civic participation keeps the issue high on the national agenda. However, other forms of public involvement are vital.

The public can play an important oversight role in the appointment of public officer-bearers. Civil society organisations can facilitate engagement with these processes by publicising upcoming appointments and making candidates and their credentials known. An example of this is the campaign by My Vote Counts regarding the appointment of electoral commissioners, which highlighted that the public is entitled to comment on shortlisted candidates[xiv].

Mr David Lewis of Corruption Watch advocated for civil society organisations to come together to share “war stories” on how to mobilise the public regarding corruption – not just on state capture, but also on systemic, “petty” corruption[xv].

A concern raised by Ms Shivamba is that while numerous opportunities are given to stakeholders such as government, civil society, and the like to voice their views on corruption, there is no real engagement with the people who are actually affected by corruption. These people include communities without service delivery, like the people of Nala who were forced to continue to use buckets for sanitation, despite a tender being granted for the provision of toilets. Professor Madonsela recounted how her former office’s investigation revealed that while the toilets were built, no piping was laid to connect the toilets to the sewer system.[xvi] Mining communities are exposed to unique risks of corruption, such as damage to land and water supply due to a failure to enforce the conditions of mining permits. Other vulnerable groups who may be overlooked include immigrants and refugees, who can encounter corruption at border posts.

While forums such as the NACS workshop have certain utility, there is a need for effective collaboration to build trust between affected persons and other stakeholders. In considering the consequences of not doing so, Prof Madonsela contributed a sobering thought: corruption pushes people to the margins of society and destroys their faith in law and government. There is a danger that rampant, unchecked corruption can foster extremism, and this is a risk South Africa can ill afford to take.

PRACTICAL STEPS

Amidst the high-level discussions about developing strategies, policy and legislative reform, creating technological solutions, and broad-scale education and public involvement, were there any simpler, practical steps that were proposed in these engagements? The answer is a resounding yes – stakeholders have applied time and resources in coming up with practical solutions which can help to eradicate corruption, even if in small ways. These include:

· Strictly enforcing rules relating to financial disclosures, and obliging those in public office to publicly declare assets and gifts and face greater scrutiny regarding their lifestyles. Declarations should include gifts made to political parties, religious institutions, charities, and family members, as these can act as a conduit to receive proceeds of corruption. Public Service Commissioner Mr Michael Seloane noted that reporting and disclosure requirements in the Prevention and Combatting of Corrupt Activities Act[xvii] are often not followed[xviii]. Rather, a lot of money is spent in commissioning foreign investigations but the findings of those investigations are not implemented. Disciplinary action must be taken in response to non-compliance.

The effectiveness of anti-corruption hotlines needs to be reviewed. There are a number of such hotlines in South Africa: ones that operate nationally[xix], provincially[xx], locally[xxi], and within specific organs of state[xxii]. A project that might provide an insight into how allegations of corruption are addressed could involve centralising and analysing data from these hotlines, and then making the results public.

Protecting whistle-blowers by providing state-sponsored legal assistance. Whistle-blowers may not have knowledge or the law or the resources to obtain legal advice in order to navigate the complex legal framework regarding protected disclosures.

Creating a database of “politically exposed persons” (PEPs). Ms Harriet Wachira, a researcher at Transparency International Kenya, spoke of a project that that involved compiling a database of PEPs who are more susceptible to corrupt influences[xxiii]. This was done by reviewing concluded corruption cases and collecting the names and details of who had been found to have engaged in corrupt practices. There are plans to add a “tab” where information regarding persons currently under investigation would be collated. This database would then be made available to the public, which could be easily accessed when, for instance, a PEP decides to run for public office.

THE COMMISSION OF INQUIRY INTO STATE CAPTURE

Many stakeholders are looking to the Commission of Inquiry into State Capture, headed by Deputy Chief Justice Raymond Zondo (Commission) as the key starting point in the “detoxification” of South Africa. Prof Madonsela stated that the evidence stemming from the Commission will provide an indication of policies that need review in order to prevent a recurrence.

Certain stakeholders pointed out that, in order to function effectively, there should be a phasing of issues set out in the Terms of Reference, rather than attempting to tackle all issues simultaneously. Mr David Lewis shared his view that while the public’s appetite is likely for the Commission to make detailed findings against specific people, a preferable outcome would be for it to make findings that would assist government in developing a coherent and effective anti-corruption policy[xxiv].

Many agreed that civil society must closely monitor the proceedings at the Commission. Ms Janet Love of the Legal Resources Centre stated that civil society must engage in the process, and that documentation put before the Commission should be released into the public domain[xxv]. Civil society organisations can work together to form a working group to send questions to the Commission. Further, civil society can serve as a conduit for people who have been affected by corruption to have their stories heard.

Some stakeholders raised concerns, noting that commissions of inquiry can be used to “diffuse and delay” and are not good mechanisms to achieve tangible results. Further, questions need to be asked regarding who is conducting the investigation? At what cost? What is the remuneration of people leading evidence? What can the state pay towards fixing the state capture problem, given that South Africa already has a budget deficit?

It appears that, for some, the Zondo Commission will be a litmus test of the state’s response to corruption. It is hoped that the recent extension of the period of its work[xxvi] will afford it enough time to address all the issues contained in its terms of reference diligently. What is clear is that civil society and other stakeholders will need to observe its proceedings carefully and intervene swiftly if any irregularities are detected. The stakes are too high not to.

CONCLUSION

The good news is that people are talking about corruption, and attempting to devise new and innovative ways to eradicate it within South Africa. This brief series has attempted to capture the ideas and insights brought to the table from a diverse collection of stakeholders. What has emerged is that there is a lot of work to be done, across a broad array of institutions.

The bad news is that the ability to implement these ideas is limited by constraints: fiscal, political, and otherwise. For those that are implemented, there is very little margin for error: the reality is that corruption is wide-scale, pernicious, and Hydra-like in its ability to resurface even when anti-corruption gains are made.

In the face of what may seem like an unsurmountable challenge, one heartening aspect of these conversations on corruption is that they show that hope is not altogether lost: there are dedicated members of government, the academy, civil society, business, and the public willing to continue the fight against corruption.

Cherese Thakur, Legal Researcher, Helen Suzman Foundation. 

These articles first appeared as two HSF Briefs. 

Footnotes:

[i] These events, which were attended by representatives of the Helen Suzman Foundation, are as follows:

· The Gauteng public engagement workshop held on 5 June 2018 with regard to the development of the National Anti-Corruption Strategy (NACS);

· A roundtable discussion on professionalising public procurement hosted by the Public Affairs Research Institute (PARI) on 12 June 2018;

· The launch of a special interest group on public procurement law by the Administrative Justice Association of South Africa (AdJASA) which took place on 18 June 2018;

· A workshop held on 21 June 2018 by the Institute for Security Studies (ISS) regarding the strengthening of civil society’s role in promoting government transparency and accountability for reducing corruption;

· A discussion hosted by PARI concerning the role of civil society in deepening the fight against state capture on 26 June 2018; and

· A forum entitled “Civil Society III” convened by Corruption Free Africa held at the Pan African Parliament on 5 and 6 July 2018.

[ii] See, for instance, these articles: L Silviera “4 Technologies helping us to fight corruption” accessed at https://www.weforum.org/agenda/2016/04/4-technologies-helping-us-to-fight-corruption/ on 30 July 2018; Transparency International “Techonology against corruption” accessed at https://www.transparency.org/news/feature/technology_against_corruption accessed on 30 July 2018; R Banning-Lover “Nine ways to use technology to reduce corruption” https://www.theguardian.com/global-development-professionals-network/2016/may/26/nine-ways-to-use-technology-to-reduce-corruption accessed on 30 July 2018.

[iii] 2 of 2000.

[iv] Ms Shivamba was speaking at the public engagement workshop held with regard to the NACS.

[v] Mr Mukumba was speaking at the “Professionalising Public Procurement” roundtable discussion hosted by PARI.

[vi] See http://www.etenders.gov.za/.

[vii] This method of procurement has been tried in Malaysia. See M Nik Anis “Anonymous tenders for Projects” https://www.thestar.com.my/news/nation/2017/10/02/anonymous-tenders-for-projects-move-ensures-transparency-and-prevents-favouritism-says-pm/ accessed on 1 August 2018.

[viii] That is, tenders that fail to comply with the prescribed requirements and are subject to disqualification.

[ix] Mr Brown was also speaking at the PARI roundtable discussion.

[x]Government’s integrated human resource, personnel, and salary system.

[xi] Dr Nombembe’s comments arose from the public engagement workshop held with regard to the NACS.

[xii] Prof Madonsela was speaking at the Civil Society III Forum.

[xiii] Such as protests held on 30 September 2015 (see G Whittles and S Sesant “Anti-Corruption March: SA needs to be morally disinfected” accessed at http://ewn.co.za/2015/09/30/AnCorruption-March-Thousands-arrive-at-the-Union-Buildings on 31 July 2018) and on 27 September 2017 (see S Mkokeli and M Cohen “Anti-corruption marches across SA target ‘Guptas’ as COSATU strike” accessed at https://www.businesslive.co.za/rdm/news/2017-09-27-anti-corruption-marches-across-sa-target-guptas--as-cosatu-strikes/ on 31 July 2018).

[xiv] See https://www.myvotecounts.org.za/campaigns/iec-commissioner-campaign/ (accessed 1 August 2018).

[xv] Mr Lewis was also speaking at the Civil Society III Forum.

[xvi] This investigation was the subject of a report entitled “Pipes to Nowhere”, which can be accessed at http://www.pprotect.org/sites/default/files/Legislation_report/pipes%20to%20nowhere.pdf (accessed 1 August 2018).

[xvii] 12 of 2004.

[xviii] Mr Seloane made a presentation at the NACS public engagement workshop.

[xix] The National Anti-Corruption hotline (0800 701 701).

[xx] Gauteng has a “Premier’s Hotline” (08600 11000) which can be used to access the Anti-Fraud and Corruption Unit.

[xxi] Cape Town (0800 32 31 30) and Durban (0800 20 20 20) both have anti-corruption hotlines.

[xxii] Such as SARS (0800 00 2870) and the Department of Home Affairs ((012) 406 4318).

[xxiii] Ms Wachira was speaking at a discussion group held at the Civil Society III Forum.

[xxiv] Here Mr Lewis’s comments were made at the PARI workshop regarding the role of civil society in deepening the fight against state capture.

[xxv] Ms Love was also speaking at the PARI civil society workshop.

[xxvi] https://www.sastatecapture.org.za/site/documents/notices/744e9cd52356a18abde484d0e52e78bf