William Saunderson-Meyer says the commission's final report did not let the president off the hook
We’re stuffed. It’s the devil and the deep blue sea dilemma on an epic scale.
It is difficult to imagine any president in any democracy that we might want to emulate, could survive such a scathing assessment by the nation’s Chief Justice of his integrity and ability.
And it leaves South Africa in an existential dilemma of tragic proportions. If President Cyril Ramaphosa were to resign or be ousted now — as seems increasingly possible — the political gangsters identified in the Zondo Commission’s previous findings will immediately again seize control of the state to resume their plunder. Even worse, they would also ensure, as with Zimbabwe which the cadres so admire, no democratic election would take place in South Africa in the foreseeable future, to threaten their criminality.
South Africans could not reasonably have expected much from the final report of the Judicial Commission of Inquiry into Allegations of State Capture and Fraud in the Public Sector including Organs of State, headed by Deputy Chief Justice Raymond Zondo, to give it its full credentials. It had already in its voluminous findings over the past four years exhaustively and convincingly detailed the depth and breadth of corruption and treachery it found.
Without rancour, although at times with something approaching disbelief, it outlined the role played by former President Jacob Zuma, the Gupta clan, and an odious cabal of African National Congress ministers, their families, and party hangers-on. It traced their deployment to key positions in state departments and agencies to facilitate the criminality, as well as the lonely courage of the few — alas, never CR nor anyone in his current top leadership echelon — who tried to thwart them. ___STEADY_PAYWALL___
After more than four years and 9m pages of evidence from more than 300 witnesses, the Zondo Commission does not actually have to trigger a single prosecution from the around 1,500 people it identified as being criminally implicated, to have proved the crux of its findings or the worth of its activities. Incontrovertibly, we now know that the South African state was captured systematically and then looted from top to tail to the tune of at least R1.4trn by the very people who had sworn a solemn oath to guard it.
The success and importance of the Commission do not depend on whether any of these people go to jail, no matter how much better it would make us all feel. The processes of accountability and punishment, despite the official mantras of police and judicial independence, are largely determined by political, not legal, decisions.
And the supposedly reformist ANC is a cowering and timorous beastie.
The July riots of last year, in response to the nominal incarceration of Zuma for contempt of the Constitutional Court, is a case in point. Not one of the dirty dozen prominent ANC members alleged by the president to have plotted and launched that insurrection has yet been prosecuted.
So, in terms of Zondo, we should have no expectations of a public culling of ANC rogues. After all, in the view of many in the governing party, these people did nothing reprehensible in feathering their nests.
To assess the ultimate value of the Commission, one needs to decide whether the Ramaphosa ANC, the supposedly “good” ANC, is dealt with in the same manner that Zondo torpedoed the Zuma ANC, the “bad” ANC. Was it even-handed or a political stitch-up of one faction by another? That boils down to examining whether the Commission accepted at face value several implausible statements made by Ramaphosa during his two appearances before the Commission.
A key issue was cadre deployment — the policy of ensuring the capture by ANC compliant apparatchiks, as opposed to the most suitably qualified officials, of every key public service position up for grabs — up to and including the Constitutional Court. Speaking with uncharacteristic passion, Ramaphosa on a few occasions virtually begged Zondo not to find against the ANC’s deployment practices.
Ramaphosa also explained to the Commission, in response to some probing questions regarding the deployment committee, that the noxiousness or otherwise of its activities during the five years that he chaired it, couldn’t be determined by consulting its minutes. Either none had been taken or the minutes had been lost. He was unsure which.
The second key issue was the president’s explanation for his silence about what was happening during the Zuma decade, while serving as his deputy president. Ramaphosa’s “say nothing, do nothing” approach was motivated not by complicity or cowardice but was a canny strategy to “resist abuses” but without being “confrontational”, the president had told the Commission.
He, Cyril, mostly “knew no more than anyone else” because the Cabinet worked in “silos”. He only gradually became aware of state capture in the same way that everyone else did — through the exposés of journalists, civil society, and institutions such as the Public Protector and Auditor General.
In other words, the gist of Ramaphosa’s evidence, given over more than a week, was that if anything bad happened it wasn’t his fault, because he hadn’t known about it. And the benign nature of cadre deployment could not be demonstrated because the dog ate his minutes.
Zondo wasn’t taken in. In this final report, he politely but deftly skewers Ramaphosa repeatedly, delivering another blow to a president already under pressure following allegations of personal involvement in criminality in the Farmgate scandal.
Zondo basically concludes that Ramaphosa was dilatory in responding to state capture and ineffectual when he did. While he never directly accuses the president of lying, he notes repeatedly that Ramaphosa fails to answer directly the Commission’s questions.
While Ramaphosa “makes much of his drive to right the wrongs of state capture”, he was “opaque” in his evidence as to what he knew, how he learnt about it, and what was the “tipping point” signalling the need for action. Ramaphosa’s version was, in essence, “that he saw nothing that raised alarm bells” for a very long time.
Nor was Ramaphosa’s “resistance” convincing. Aside from three interventions in Zuma’s attempts to get rid of his troublesome finance minister, Ramaphosa’s explanation of working from within “suffers from his inability to provide further examples of resistance … It is difficult to understand why allegations in the public domain — in some cases made by loyal ANC members — continued to go unaddressed for so long.”
Zondo questions the “effectiveness” of Ramaphosa’s decision to remain within the state and party. “We must ask ourselves whether [state capture] could not have been arrested sooner if powerful people, like President Ramaphosa, had been willing to act with more urgency.”
Zondo writes: “In my view, he [Ramaphosa] should have spoken out. I accept that it may be difficult to choose between the option [of] keeping quiet and keeping quiet but resisting. It would be untenable to send a message that if the same scenario were to happen again sometime in the future, the right thing is not to speak out.”
Zondo scoffs at Ramaphosa’s repeated statements that the ANC had “drawn a line in the sand” against corruption and was “committed to renewal and change”. Ramaphosa, he writes, “offered no real analysis or explanation” why these promises, made many times in the past 20 years, had failed and might now succeed: “He only stated that it is better late than never.”
Zondo dismisses Ramaphosa’s claim that the ANC had been unable to act on state capture because it didn’t have “direct evidence at the time” nor the investigative capacity to probe the allegations. Newspapers had provided “credible and verifiable information” about Gupta corruption since at least 2011, writes Zondo. Ramaphosa, however, was unable to “offer any explanation of the failure to act”.
In 2016, Deputy Finance Minister Mcebisi Jonas reported to the Cabinet a bribery attempt by the Guptas. This was followed by damning allegations of Gupta corruption from an array of other leading ANC figures.
At this point, Ramaphosa “publicly promised that the ANC would conduct a methodical and rigorous investigation”. “This clearly did not occur,” writes Zondo.
“There is no evidence … that the ANC ever proactively sought to make even basic inquiries,” the report notes.
Rather gallingly for Ramaphosa, as the designated supreme protector of the South African Constitution, Zondo intimates that neither the president nor his party comprehends the nation’s founding document. Dealing with Ramaphosa's justifications for not allowing ANC MPs to vote their conscience in the parliamentary no-confidence debate on Zuma, Zondo describes it as a fundamental failure to understand the Constitution.
“The natural conclusion … is that the ANC prioritises its own survival and strength over the Constitutional obligations of its members.” Ramaphosa “unfortunately failed to grapple with the core of the issue — that the ANC’s internal checks and balances did fail and [it then] sought to prevent the proper exercise of a Constitutional mechanism of accountability”.
Zondo is critical, too, of Ramaphosa's grudging admission that the “delay” in dealing with state capture had been costly and that the ANC should have acted sooner.
“The characterisation of the party’s seven years of inaction as a ‘delay’ is itself problematic. The party did not simply take a long time to consider the allegations and arrive at decisions … it made a series of decisions over a number of years not to act against Mr Zuma and other complicit parties. That the party later decided otherwise does not absolve it of accountability for those earlier decisions.”
Turning to ANC cadre deployment, the Commission ruled that it was “unlawful and unconstitutional”. To appoint or promote people based on the whims of the ANC's deployment committee was also an unfair labour practice.
Zondo declared that it was “improbable” that there were no records of the deployment committee for the Ramaphosa years. “It is difficult to conceive how the party would have had any oversight over the Committee without any records,” the report notes.
Zondo then tackles the possible role of the deployment committee in judicial appointments, which Ramaphosa had averred went no further than the ANC “noting names or proposing names” but “knowing very well that it is not the appointing structure”. “While [Ramaphosa] admitted the value of transparency in appointments, he did not address the concern of the chairperson, which is that decisions made by the committee occur outside proper Constitutional structures and therefore not subject to scrutiny or oversight.”
On the wider and contentious issue of whether the committee issues recommendations or instructions, Zondo writes that since the appointing authorities are themselves ANC members, they might feel “pressured” to accede to the committee’s choice. It was clear from other minutes of the committee — those from the non-Ramaphosa years — that the committee “does not always merely make recommendations but in fact often instructs” and that appointing authorities “including Cabinet” are de facto bound by [its] decisions”.
While Ramaphosa conceded that deployment, “on occasion” failed to ensure deployees that were fit for purpose, “he did not directly engage” on its role in state capture. “The fact remains that the Commission heard substantial evidence indicating that multiple appointments were made to key positions in order to facilitate state capture.”
While the president averred that things would be done differently in future, he failed to explain where deployment went wrong or what would be changed. Zondo pointed out that “many of the appointments and indeed the excesses of state capture” occurred during Ramaphosa’s years as chairperson of the committee.
But Zondo was at his most restrainedly scornful when he turned Ramaphosa’s promises for the future and “the process of renewal upon which the ANC has ostensibly embarked”.
“What is abundantly clear … is that for as long as the ANC is in power, the failure of the ANC successfully to reform and renew itself as undertaken by President Ramaphosa, will render the South African state unable to rid itself of the scourge of state capture and corruption.”
The sections dealing with the ANC’s and Ramaphosa’s roles in state capture are only a small part of Zondo’s massive analysis. They are, however, the most critical ones in that they are the ones that should inform the electorate’s understanding of what and who they are supporting.
The question for South Africa to now decide is whether any “reform and renewal” can come from within the governing party. If a general election were to be held tomorrow, the people’s answer is likely to be unambiguous. The ANC would be out.
However, if Ramaphosa — whatever his dismal catalogue of failings, he is not a despot-in-waiting — doesn’t survive until such an election is held (the next one is scheduled for 2024) it probably does not matter how the people vote. The result will be rigged, Zimbabwe-style.