Is South Africa really complying with the anti-corruption protocols it has ratified?
If corruption-busting agencies aren't insulated from political interference, South Africa's compliance with anti-corruption conventions and protocols will look good on paper only.
While South Africa has ratified a number of international and regional conventions and protocols against corruption, most empirical indicators suggest a significant increase in corruption in recent years. A report by the law firm Edward Nathan Sonnenbergs noted that, in the 2011–2012 financial year, public sector fraud cost taxpayers close to R1 billion, up from R130,6 million in 2006–2007. The report highlighted that a lack of accountability appeared to drive the problem. It found that although 88% of public officials tried for financial misconduct were found guilty, only 19% were fired. The rest remained in the public sector, where they were potentially able to continue with their criminality. Recently, the Competition Commission fined 15 construction companies a total of R1,46 billion for bid rigging, demonstrating that corruption is also a problem in the private sector. It is no wonder that between 2007 and 2012 South Africa dropped 26 places on the Transparency International Corruption Perceptions Index.
Nevertheless, South Africa has ratified various international and regional conventions and protocols that bind the country to taking action on preventing and combating corruption. These include the United Nations Convention against Corruption (UNCAC), the African Union Convention on Preventing and Combatting Corruption, and the Southern Africa Development Community (SADC) Protocol against Corruption. In ratifying these instruments, South Africa signalled that it had committed itself to establishing an independent anti-corruption agency or agencies with the appropriate human resource complement.
On paper South Africa generally performs well if one reads, for example, the 2012 country report on adherence to the UNCAC articles. These conventions typically state that signatories should have at least one independent agency equipped to investigate and prosecute corruption. South Africa will therefore point to the Directorate of Priority Crimes Investigation (the Hawks) and the country’s constitution, which states that the National Prosecuting Authority (NPA) is independent. While good on paper, in reality the situation is far different considering the limited political will to address corruption.
The Constitutional Court found that the Hawks were not adequately independent from political interference and ordered rectifying legislation. However, the new draft legislation as introduced by Minister of Police Nathi Mthethwa was flawed and revealed that there was no intention to protect the Hawks from political interference. Various submissions to parliament overwhelmingly rejected the draft legislation and it had to be changed substantially by the Portfolio Committee of Police before being passed into law. There is still plenty of scope for direct political interference as the Minister of Police plays a key role in appointing the Hawks’ leadership and the agency remains in the South African Police Service (SAPS), allowing the National Commissioner substantial influence over members.
There are already allegations that the Minister of Police interfered in Hawks investigations in the past, for instance when he halted corruption investigations into notorious former SAPS Crime Intelligence Head Richard Mdluli. It later emerged that Mdluli had signed off on the illegal appropriation of close to R200 000 from the police’s Secret Service Account to upgrade the minister’s private residence; funds in this account are meant to be used to tackle organised crime. It took a court order to remove Mdluli from his position in the police following various attempts by the minister to keep him there.
Furthermore, the NPA’s credibility as an independent agency has been severely undermined in recent years. Things have been particularly bad for this crucial criminal justice agency since Advocate Vusi Pikoli’s removal as the National Director of Public Prosecutions (NDPP). Despite the Ginwala Commission’s findings that Pikoli was a person of integrity who acted independently and was fit for office, he was fired. It became clear that President Jacob Zuma wants a politically pliable person to head the NPA with Advocate Menzi Simelane’s controversial appointment as NDPP. Simelane played an active role in derailing local and international investigations into the R70 billion arms deal. Later, he was found by the Ginwala Commission to be dishonest and disrespectful of the NPA’s role, and the Public Service Commission recommended he be disciplined.
Fortunately South Africa has a strong independent judiciary and the Supreme Court of Appeal unanimously ruled that Simelane’s appointment was ‘irrational’, forcing him to step down. More than 18 months later, a permanent appointment has yet to be made. The President seems content to keep Advocate Nomgcobo Jiba as Acting NDPP despite serious concerns about her integrity and independence. She was suspended from the NPA in the past for abusing her power in targeting one of the NPA’s top prosecutors, Gerrie Nel, thereby undermining the corruption investigation into disgraced former SAPS National Commissioner Jackie Selebi. Jiba was subsequently suspended and Selebi was convicted and sentenced to 15 years for his crimes. Nevertheless, Zuma appointed Jiba as acting head of the NPA, following which this agency has suffered an unparalleled string of high-profile failures.
Currently, Jiba is spending a good proportion of her time trying to remove a top corruption-busting prosecutor, Glynnis Breytenbach. Breytenbach was acquitted on all 15 disciplinary charges brought against her given the lack of any evidence, which lends credence to the argument that Jiba is intent on removing her in an attempt to derail Mdluli’s prosecution. All of this has further dented the NPA’s credibility in the public’s eyes.
In a recent speech on 10 June, in which 42 people, mostly civil servants, convicted of corruption were ‘named and shamed’, Justice and Constitutional Development Minister Jeff Radebe stated that the country’s frameworks for combating corruption complied with international practices, such as the UNCAC and the SADC protocol. He also said that the ‘aggressive stance’ of naming convicted fraudsters had been initiated to ensure that, ‘for the first time in the history or our democracy, criminals in our society will be made known and held accountable for their actions publicly’. He highlighted that 758 persons were under investigation for corrupt activities and that ‘freezing orders’ to the value of R1,07 billion had been obtained by the Asset Forfeiture Unit. These figures pale in significance when measured against the R30 billion the state loses annually to corruption.
The fundamental problem is that politically connected people involved in corruption are protected from criminal sanction. Until the law is applied equitably to everyone, with the President, cabinet ministers, their families and friends having the same chance of being convicted of fraud and corruption as everyone else, South Africa cannot hope to beat this scourge.
Having anti-corruption agencies and legislation is superficial compliance with international conventions and protocols. South Africa will only succeed in tackling corruption when corruption-busting agencies are insulated from political interference; when fit and proper people are appointed to head such agencies; and when politically powerful or connected people are held accountable for corruption.
It takes considerable political will to run an honest government and this is sorely lacking in South Africa, as demonstrated by the recent appointment of Simelane as the special advisor to the Minister of Public Administration, Lindiwe Sisulu. Given that Sisulu is leading the campaign to tackle corruption among civil servants, those with powerful political connections have little to fear and the conventions South Africa has signed remain little more than paper exercises.
Hamadziripi Tamukamoyo, Researcher, and Reitumetse Mofana, Intern, Governance Crime and Justice Division, ISS Pretoria
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