South African Crime Quarterly 39
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Relationships can seldom survive failed expectations, and the greater the distance between what was expected and what comes to pass, the greater the feeling of betrayal. So too it is in the relationship between a government and its citizens. Ruling political parties are often stubbornly resilient to the consequences of failed expectations. However, after the Arab spring, and even the riots in England during 2011, it is difficult not to believe that, amongst other things, the democratising effect of instant communication through social networking will undermine that resilience and force those in power to be more responsive to dissatisfaction amongst the electorate.
South Africa is experiencing the effect of failed expectations in several ways. Violent local level protests (misleadingly termed ‘service delivery’ protests) are now an everyday feature of the expression of dissatisfaction with a multiplicity of perceived failures by local, provincial and national government. Rising electricity costs, local government corruption and overcrowded schools are just some of the things that spur the protests that express the frustration, anger, and sometimes the desperation of citizens.
The African National Congress (ANC) set high standards against which it would be measured. A negotiated peaceful transition from white minority rule, one of the most (if not the most) progressive Constitutions in the world, a Truth and Reconciliation Commission and an iconic leader were all elements of the transition that set the benchmark for what South Africans believed they might expect from an ANC government.
In many respects the ANC has retreated from this high ground and in no way more painfully perhaps than through the abuse of state resources for personal gain. Weekly newspapers are replete with examples of tender fraud, abuse of power, and the failure of the state to provide the services citizens expected. As we move towards a national election in 2014, preceded by the ANC’s own elective conference later this year, there is tremendous pressure on the ANC to begin to address this dissatisfaction.
In attempting to deal with corruption, however, the party will be confronted with its demons. Those who hold positions of power and are compromised by involvement in fraud and corruption, as well as their beneficiaries and supporters, will resist efforts to clamp down on corruption. The ANC will thus need to balance increasing public pressure to deal with corruption against the consequences for the party of bringing some of its most powerful and senior members to book.
We now have an opportunity to craft a new body to investigate and respond to corruption. Last year the Constitutional Court found that the Directorate of Priority Crimes Instigation (DPCI), a specialised unit within the South African Police Service (SAPS) that was set up to investigate serious organised crime and corruption, was insufficiently insulated from political influence and interference. In order to meet the requirements of the Constitution and South Africa’s international obligations, a unit responsible for investigating corruption needs to be independent, and needs to be seen to be independent. The Court’s decision requires new legislation to address the shortcomings of the existing structure. The article by Philip Stenning and Melea Lewis in this edition of SACQ discuss the minority and majority judgments from the Constitutional Court, and offers international examples of how a new unit might be structured.
At the time of writing a Bill had been tabled in parliament that was a minimalistic response to the requirements of the Constitutional Court judgment, and fell far short of creating a structure impervious to political influence. The article by Irvin Kinnes and Gareth Newham argues that to meet the requirements of the judgment, a unit responsible for investigating corruption should be separate from, and independent of, the SAPS. Christopher Reeves, in an article commissioned by the Council for the Advancement of the South African Constitution, makes a case for a dedicated, independent statutory body to investigate corruption.
It is not clear quite how far the ANC will be willing to go in meeting the requirements of the judgment and establishing a highly effective anti-corruption body – not least because the decision to disband the Scorpions, taken at its policy conference in 2007, was a response to the ability of the unit to gather evidence of wide-scale fraud and corruption against its incumbent president. The article by Berning and Montesh sketches the process that was followed to disband the Scorpions and presents the reasons given for its decline. They argue that mistakes made by the unit itself contributed to its decline.
It is somewhat naïve to believe that even the most watertight law will be able to prevent and protect against corruption. Any institution’s efficacy is largely dependent on the competence and commitment of its leadership and staff. Even if we adopt the best possible statute to establish a truly independent anticorruption agency, a great deal will depend on who is appointed to manage and run it.
This special edition of SA Crime Quarterly is funded by the Open Society Foundation of South Africa. It is my hope that it will provide useful and relevant information, analysis and perspective to those who intend to advocate for positive change, and those ultimately responsible for making the decision about the new law.
Chandré Gould (Editor)
