[ANALYSIS] SA’s war on graft is picking up speed. But will anyone go to jail?
This article first appeared on The Conversation.
South Africa’s latest pursuit of truth has gone up a gear as it enters a new phase in which the stakes are raised for all the protagonists. After a slow start last year, a judicial commission of inquiry into state capture has received startling evidence over the past two weeks. Granular detail has been provided about corrupt payments over the past decade to a long list of senior African National Congress (ANC) politicians and government officials.
The evidence has been given by Angelo Agrizzi, the former chief operating officer of private security firm Bosasa. Agrizzi has painted himself as having been central to the corrupt deals by the company, which secured several government contracts running into billions of rands. He has claimed that he’s coming clean after a “near death” experience convinced him he needed to do the right thing.
Agrizzi spent over a week on the stand describing dispassionately how Bosasa paid roughly R4 million to R6 million a month in cash bribes to senior government officials. The payments were in exchange for government contracts and prosecutorial immunity.
The evidence has opened up an entire new window on corruption in South Africa. Prior to Agrizzi’s evidence, corruption had been associated primarily with the notorious Gupta family. Its relationship with former president Jacob Zuma and his immediate circle of family and cronies dominated the first phase of the commission’s work last year.
Unsurprisingly, the public outcry to Agrizzi’s evidence has been intense. And there have been calls for immediate action in the form of resignations, firings and prosecutions of those implicated are understandable.
But it’s important to keep perspective, and to cast an eye beyond the headline grabbing evidence and to ask, will any of this matter?
We believe that it will under two conditions. The first is that President Cyril Ramaphosa delivers a decisive and clear victory for the ANC in the elections due to be held in May. The second is that he establishes a substantially uncompromised and independent prosecuting authority.
The state capture inquiry is a remarkable political as well as legal event. The fact that there is a public commission underway that implicates and damages the ruling party, and some of its most senior members, is a true testament to the strength of South Africa’s democracy, its Constitution and rule of law.
It is also worth remembering that commissions of inquiry are fact-finding rather than guilt-imposing procedures. The evidence adduced is not tested in the same way as evidence in a criminal proceeding would be. The final task of the Commission will be to produce a report on its finding to the President, coupled with advice or recommendations on how to act on them.
The inevitable clamour for swift retributive action is understandable. But what’s more important is that the inquiry should be given the space to complete its mandate and to respect its legal process.
The bigger question is what will be done when the final recommendations are presented to President Cyril Ramaphosa. This could be in two years, the time given to the commission to complete its work.
This depends largely on two key factors: the first is Ramaphosa’s political strength in the ANC at the time. The second will be the strength of the National Prosecuting Authority given that the commission’s final report is likely to recommend that corruption charges be brought against both the implicated bribers and the bribe-takers.
Ramaphosa’s action in his first year in office suggest a bona fide desire to place South Africa back on a better course. He has dispensed with some of the most undesirables from Cabinet (although several remain). And he has made positive early moves in cleaning up the leadership of South Africa’s state-owned enterprises. Significant changes have already been made to the boards of some of the largest entities, and new management brought in.
But Ramaphosa is clearly still constrained within the ANC. And the threat posed by the Zuma faction remains. The president has to be mindful of the fact that the balance of power in the top six of the ANC and the full National Executive Committee is delicately poised. His victory over the Zuma faction at the ANC national elective conference in December 2017 was very slender – 52% to 48%. While Ramaphosa has consolidated power somewhat since then, the Zuma faction is still alive and kicking and he cannot afford to give his enemies any cause for challenging his authority.
Much, therefore, hinges on the outcome of the national elections this year.
WHY THE ELECTIONS MATTER
The question is not whether the ANC will win the election (they almost certainly will), but by how much. A narrow victory at national level, coupled with the potential losses of some provinces to opposition coalitions, could be disastrous. At worst it could spell the end for Ramaphosa. At the very least it could give significant confidence to the still-defiant Zuma faction.
If Ramaphosa doesn’t match Zuma’s performance electorally, his political muscle in the ANC and support for his reform agenda will be weakened, diminishing his chances of acting decisively against those implicated in the state capture inquiry.
Yet, if Ramaphosa delivers a strong and decisive majority of around 60% or more, which early opinion polls suggest he may, he will rightly be able to claim that he has sustained the ANC’s strength. He could use this to leverage a fresh mandate in favour of his reform agenda.
But turning the tide against corruption needs another ingredient: the ability to successfully prosecute those involved in malfeasance.
Measures to implement the final recommendations of the commission will largely be a political decision taken by the president. Nevertheless, the decision on what prosecutions should follow will lie with the National Prosecuting Authority. The authority has a constitutional duty to act impartially and without fear or favour.
But Zuma targeted the institution. The result was that the highest position in the prosecuting authority, the National Director of Public Prosecutions, become a poisoned chalice with a series of unfit and unlawfully appointed place-men occupying the key position.
One of the most notable positive changes in the last year has been the appointment of Shamila Batohi as the new National Director of Public Prosecutions.
REAL SUBSTANCE VERSUS SPECTACLE
South Africa has a party – not a presidential system. This means that whether the ANC deserves another chance will be for the voters to decide.
But commissions of inquiry are as much political creatures as they are legal ones. And the strength of Ramaphosa’s political muscle going forward is likely to determine whether the commission is going to end up being something of real substance – or merely a spectacle.
Richard Calland is an associate professor in public law, University of Cape Town.
Mike Law, senior legal researcher in Public Law at the University of Cape Town, contributed to this article.