When South Africans snaked their way to the voting booths in 1994 it was to embrace constitutional democracy under the rule of law in a multi-party system capable of securing peace, justice, freedom and ubuntu.
An open, accountable and responsive form of governance was chosen by the representatives of the overwhelming majority of political parties then in existence.
Over 2 million citizens actively participated in the formulating of the new Constitution, our supreme law. A National Accord preceded the final Constitution and an arduous process over seven years preceded the coming into force of our current Constitution in February 1997.
In our now not-so-new dispensation, the rule of law is regarded as supreme, there is a separation of powers between the spheres of government and checks and balances on the exercise of power are in place in the form of independent institutions like our free media, the judiciary, the prosecution service and the Chapter Nine Institutions.
The way in which SA has been governed since 1994 does not measure up to the standards set to inform its foundational values. Instead, a toxic dominant party state in which the ANC led alliance strives for hegemony (not multi-partyism) has largely devoured the hopes of the people for peace, justice, freedom and ubuntu.
The Marikana police shootings of 2015, the death of 337 people during an attempted insurrection in July 2021, the arson in parliament, the hammer attack on the Constitutional Court both in January 2022 and countless service delivery protests over the years are a far cry from what the nation set out to achieve by embracing constitutionalism.
The phenomenon of State Capture stalks the land, costing trillions in loot. The spectres of poverty, inequality and unemployment loom large. All three have increased alarmingly since the arrival of the “ready to govern” liberators in the now gutted corridors of parliament.
The cure to SA’s current malaise is posited in the January 8th Statement of the ANC, which reportedly went through 15 drafts before being made public by President Ramaphosa in Polokwane. He vowed that his party will return to “straight adherence to democratic centralism and revolutionary discipline”.
That stance demonstrates how little the ANC has learned since last it assembled in Polokwane to elect Jacob Zuma in 2007. At that conference it resolved urgently to disband the highly functional Scorpions unit in the National Prosecuting Authority because it was taking too keen an interest in the malfeasance of ANC bigwigs like Zuma.
The Constitution makes no mention of either of the failed and dated ideas of democratic centralism, it is equally silent on revolutionary discipline. These concepts are derived from the thinking of Lenin, who regarded what he called “colonialism of a special kind” in SA as good reason to foment a national democratic revolution or NDR, the notions of which still inspire the ANC and its partners the SA Communist Party and COSATU.
Having been in power in SA since 1994, it is a fallacy for the ANC to regard itself as a revolutionary organization. Revolutionaries stand up against the government of the day, they do not run it. The values of the NDR are also at odds with the values of our supreme law, the Constitution. Examples of this disparity have been given before and need not be repeated.
When the NDR butts heads with the Constitution, the NDR usually loses because the Courts are sworn to uphold the Constitution and to strike down as invalid laws and conduct that are inconsistent with the Constitution. Despite cadre deployment to the Bench, our judges still regard their oath of office to uphold the Constitution as binding on the consciences.
This leads to mutterings about “counter-revolutionary judges” in the ranks of the ANC. Our supreme Constitution is naturally above any revolutionary strivings while it enjoys the support of the people. The lawful adoption of democratic centralism and revolutionary discipline would require constitutional amendments that a party with only 58% of the seats in the National Assembly can not attain. To do so unlawfully requires no more than the capture of the state.
Remarkably, the National Executive Committee of the ANC has welcomed the release of the first tranche of the report of the State Capture Commission despite its findings that the phenomenon is real and that elements in the ANC are responsible for it. The January 8 statement confirms that ANC members and leaders who are implicated in the report will be “dealt with” by the ANC, how this will play out remains to be seen.
The ANC’s track record is illuminating: Jacob Zuma, sentenced to imprisonment for defying the Commission, is still a member in good standing and sits, ex officio, on the NEC of the ANC. True, his former financial adviser, Schabir Shaik, was briefly imprisoned for corrupting him, but this did not lead to the 15 years of imprisonment imposed.
Instead dubious medical parole status was awarded to Shaik in a “curtain raiser” for similar questionable treatment for Zuma. Tony Yengeni, former Chief Whip of the ANC, went down for defrauding parliament. He was carried, shoulder high, into and out of prison in short order by the ANC leadership and now serves on the NEC.
The ambivalently soft attitude of the ANC toward corrupt activities has spawned a culture of kleptocracy without consequences in SA. The greater the impunity the more cadres fall into the ways of state capture and serious corruption of a kind that literally amounts to theft from the poor. State coffers are looted of funds intended for job creation, poverty alleviation and more. The looters live extravagant lives wasting the loot on fast cars, slow horses and loose living.
At the root of the malaise in SA today is the failure of the criminal justice administration, in particular the investigators and prosecutors of those involved in grand corruption, to do their work. The deterrent effect of a few good corruption convictions will dampen enthusiasm for covidpreneurism and tenderpreneurism too.
While it is understandable, though wrong, that during the Zuma era there was no appetite properly to implement the binding decisions of the courts in relation to the adequacy of the anti-corruption machinery of state, that excuse no longer applies. The current difficulty is that the Hawks are not equal to the task at hand and the prosecution service is hollowed out and compromised by the ravages of State Capture.
It is plain that the NEC has been doing its homework on the requirements of the law. As long ago as August 2020 it gave an urgent instruction to cabinet to establish a specialised, permanent and stand-alone entity to deal with corruption without fear, favour or prejudice. This formulation accords with that of the majority judgment of Moseneke DCJ and Cameron J in the Glenister case decided as long ago as 17 March 2011.
In his 2021 SONA the president appears to be arriving on the same page too when he refers to the implementation of the strategy for the establishment of an independent statutory anti-corruption body that reports to Parliament.
A detailed suggestion, in the form of two draft bills, one amending the Constitution and the other setting out possible enabling legislation, was made in August 2021 to the presidency, parliament, the ministry of justice, the shadow minister of justice and to the prosecution service by Accountability Now. The drafts strive to uphold the decisions of the courts in relation to the need for effective and efficient anti-corruption machinery of state. They are further explained here.
The ANC cannot act as criminal investigators or as prosecutors. It can however discipline its members or even expel them. The work of dealing with corruption directly as a crime is that of the state, as provided for in the Constitution.
The role of cabinet and parliament in this process is to create the appropriate operational and structural environment for the corruption busters and to vote sufficient funding for their activities. The state is bound to follow the rulings of the courts on the criteria for successful corruption busting.
It is urgent that attention be given to reforming the criminal justice administration without delay. The Zondo Commission will create a great deal of corruption busting work for the state. The state is currently not equipped to do it. Delay and dithering over what is required is not indicated.
A full parliamentary debate of the proportions that which was held when the services of the Scorpions were dispensed with at the start of the Zuma era is what is indicated.
No amount of bluster, consultation, advisory council formation or ducking and diving will alter the fact that until the corrupt are countered, the future of peace, justice, freedom and ubuntu in SA looks bleak.
The recommendations of the Commission bind no one. Its findings of fact are likely to be challenged by many of those that it fingers, if for no other reason than to buy time. The Stalingrad strategy has been overused by the corrupt in the courts of SA. It is nevertheless comforting to see that the ANC is taking the report of the Commission seriously and intends to act on its recommendations, if credence is to be given to the January 8 statement.
In the meantime the ANC needs to decide urgently whether there is room in its ranks for those identified in the report by Justice Zondo as participants in State Capture. Renewal of the organisation surely involves expelling the bad apples, whether they are identified by the internal structures of the ANC, by the State Capture Commission or by the reformed criminal justice administration of SA.
Dealing with corruption involves the political will to be true to the aims of the Constitution. All political parties and all voters need to bear this simple truism in mind. The ANC risks losing its majority in parliament if it choses to be soft on corruption, especially corruption in its own ranks. The NDR is an anachronism that has no place in modern politics in SA. It should, as Professor Kader Asmal suggested, be abandoned by the ANC.
Paul Hoffman is a director of Accountability Now.