16 Jan 2008: ISS Today: South Africa: Who Keeps an Eye on the Gatekeepers?

15 January 2008: South Africa: Who Keeps an Eye on the Gatekeepers?

 

On 14 January the Cape Times carried a short summary of the findings of a panel of four independent investigators appointed by the National Prosecuting Authority to establish whether there was a basis for charging the Commissioner of the South Africa Police Service, Jackie Selebi, with corruption and defeating the ends of justice. The panel found that there was ‘sufficient cogent evidence’ to substantiate the allegations.  The outcome of the probe has become part of a chain of events leading to the suspension of Commissioner, his indictment for corruption and resignation from the presidency of Interpol. Along the way, there have been collateral developments, such as the suspension of the Director of the National Prosecuting Authority, Vusi Pikoli, and the arrest of one of his subordinates, Gerhard Nel. The media is abuzz with projections of an imminent meltdown in the administration of criminal justice in South Africa. Behind the current commotion lie important issues that have demanded repeated attention in post-transition settings beyond South Africa.

 

The allegations about Commissioner Selebi arouse public concern not just because of the prominence of his position, but also on account of their nature and the accompanying circumstances. He is alleged to have abused his position to solicit bribes from individuals who, to his knowledge, were implicated in organised crime. In return, the Commissioner is said to have made various attempts to protect them from criminal investigation and prosecution. It is essential that the strength of the evidence against Commissioner Selebi is tested in due course. What has been revealed so far already conjures up parallels with developments in Zimbabwe in the mid-1980s.

 

In the case of Zimbabwe the demands of post-war reconstruction and drought precipitated a corruption scandal involving fraudulent claims for the transportation of food relief to certain parts of the country between 1981 and 1984. Investigations revealed that huge payments were made for non-existent grain consignments. They also exposed the source of the claims as an entrepreneur, Samson Paweni. Paweni had established himself in the transport industry while exiled in Zambia during the 1970s. After Zimbabwe’s liberation, he drew closer to the emergent political elites, including the new minister of social welfare. Having been awarded the tender to move grain to needy areas, Paweni went on to develop a multi-million dollar business, partly based on fraudulent claims. He ensured that the minister, and the minister’s influential friends benefited from the proceeds. When the scheme was uncovered, the contract was initially suspended, but re-instated on the orders of the minister. As the scam continued, it affected the morale of the entire department of social welfare, eventually enlarging the circle of corruption to include junior officials. Inevitably this enterprise became unmanageable, exploding into the public realm, and resulting the prosecutions of Paweni and some of the officials involved. In spite of being implicated, the minister escaped censure.

 

As in Selebi’s case, the Zimbabwean minister was prominent in the party, and very close to the head of government. A decision to prosecute him was always going to be difficult. The Paweni case demonstrated the fragility of the much-vaunted independence of the prosecution from the executive, ostensibly inherited from the colonial constitutional set-up. In the context of the transition in Zimbabwe, the strongest institutions were those with the closet links to the new ruling party. In the early 1980s, these were the executive, parliament and, to a limited extent, the defence forces. The executive exerted its influence over the other institutions in such a comprehensive manner as to render them irrelevant in contentious cases. Prosecutions that would have embarrassed prominent elements of the executive simply did not happen, a situation that has persisted over the years.

The Selebi case, and its subplots mentioned earlier, reveal a crime-combating system in danger of being stifled by endless competition for leadership. At its core lies the issue: who should take the ultimate operational decisions when organised crime is suspected to have infiltrated the state. A similar issue has proved problematic in Kenya, in the context of combating corruption. An unhealthy rivalry between the prosecution and the anti-corruption agency – which occasionally involves the police as well, continues to cripple initiatives to act decisively against corruption in the public sector. In the absence of a resilient constitutional framework, this continues to lead to conflicts within the system. Clustering of departments at the political level in South Africa, was presumably intended to eliminate or minimise debilitating competition for turf, but this does not seem to be working. 

   
As with the Paweni case, the Selebi incident brings the prosecution into potential conflict with the executive. It will be interesting to see what the inquiry into the suspension of NPA Director Vusi Pikoli recommends as an appropriate relationship between the prosecution and government.

 

Commissioner Selebi was parachuted into the leadership of the police service in 2000. At the time of his appointment, questions were raised about the prudence of appointing a civilian to lead the police. While his satisfactory administrative performance will have done much to allay some of the concerns, the earlier debate is likely to be revived. A critical part of that debate is the nature of the security screening that preceded his appointment.

 

This promises to be quite an eventful year, in which developments in the constitutional and administrative fabrics of South Africa will attract the attention of both the local public and foreign observers.

 

Charles Goredema
Programme Head: Organised Crime and Money Laundering, ISS Cape Town