Is South Africa ready to accept the possibility of the Zondo Commission report and recommendations going straight to the dustbin? Does South Africa have the ability to show political commitment to reform? There are lessons to be learnt from Australia’s Fitzgerald Commission report.
As the Judicial Commission of Inquiry into Allegations of State Capture (Zondo Commission) draws nearer to winding up on 31 March 2021, one cannot help but start to think about its eventual report. Of course, the thinking will include a great deal of guesswork.
This has let me think of comparative lessons from the 1989 report of Australia’s Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, also known as the Fitzgerald Commission of Inquiry, or the Fitzgerald Commission report.
I have previously drawn limited comparisons between the Zondo and Fitzgerald commissions, with some striking similarities identified. Today, I would like to look at five of the key recommendations from the Fitzgerald Commission report, which, in my view, may resonate with the anticipated Zondo Commission report. The Fitzgerald Commission report emphatically stated, as some of its observations and recommendations, that:
- The shock, panic and anger which follow an inquiry such as this can produce over-reactions which unnecessarily disturb traditional systems and values, including civil rights… [p4]
The Fitzgerald Commission report warned of vested interests that would do their best to “avoid and subvert real reform while creating a new, attractive but hollow façade to hide the continuing misuse of power and misconduct”. In this way, society is presented with a façade that “may indeed be a more effective disguise, because it allays community concerns”. [p4]
I think we are beyond panic, shock and anger when it comes to the Zondo Commission. Some politicians, such as the EFF’s Julius Malema, showed no signs of panic and reportedly declared that there is nothing to hide as the Zondo Commission announced that Malema and his deputy president, Floyd Shivambu, are in its sights.
On the other hand, Shivambu was less than courteous to the Zondo Commission and its chairperson, Deputy Chief Justice Raymond Zondo. Shivambu seems to have been shocked and angered by the latest developments, and went on to accuse Justice Zondo of having a “misguided political agenda”.
- The selfish and corrupt are infinitely flexible in their ability to adapt and work around new regulatory structures. They will seek to manipulate and exploit laws and institutions, whatever changes are made. [p5]
It is without a doubt that the Zondo Commission has brought about change in how we deal with corruption, and the effectiveness of the institutional framework of our criminal justice system. The anticipation is that a recommendation in the Zondo Commission report for change will be inevitable.
But such a change – whether normative or institutional – will be a value-add to our criminal justice system if sustainable and not susceptible to circumventions, manipulation and exploitations by the selfish and corrupt.
Immediately after the much-celebrated appointment of Shamila Batohi as National Prosecuting Authority (NPA) boss, the National Association of Democratic Lawyers (Nadel) argued for more independence for the NPA.
“Should the NPA be subjected to the executive authority of a minister when it is already accountable to Parliament? Are these provisions conducive to the NPA meeting its constitutional obligations without interference?” asked Nadel.
A submission by the Helen Suzman Foundation before the Constitutional Court in 2018, for example, argued that independent prosecutorial bodies “are indispensable in the fight against, inter alia, corruption and organised crime”. [at para:30]
At least the scholarship around our criminal justice system seems relentless in supporting the call for the true independence of the NPA. In August 2020, a similar recommendation in part was made when it was proposed “that the Constitution is amended at section 179 dealing with the NPA by providing for a removal procedure along the lines of what has now been developed in respect of the removal of the functionaries of chapter 9 institutions”. [pp 20-21]
The call for independence is now being taken to Parliament by Batohi herself. Reports are that last week Batohi told Parliament’s justice committee that the NPA wants to be dislocated from the control of the Justice Department and to operate independently like a chapter 9 institution.
“There is an urgent need to strengthen the institutional independence of the NPA to protect it from the political pressures wielded by the corrupt,” argued Professor Pierre de Vos in reaction to Batohi’s proposal to unlink the NPA from the Justice Ministry.
As noted in the United Nations Office on Drugs and Crime and International Association of Prosecutors’ Guide, countries such as Tunisia have been able to achieve complete independence of their prosecution services by putting them under the umbrella of the judiciary.
It remains to be seen if the minister of justice will be prepared to relinquish ministerial control over the prosecution service and final oversight as empowered under the Constitution and the NPA Act. The veto power of the minister over the NPA may prove too precious to give up.
What we know, however, is that the appointment of Batohi will not overnight strengthen its prosecutorial power and cure it completely of political interference. And that inappropriate connections of prosecutorial authorities with other branches of government are the bedrock of inappropriate influences from those other branches in the country’s prosecution service.
One question that should not be left out of the discussion is whether the selfish and corrupt will ultimately flex their power and influence to circumvent the Zondo Commission, or go to extreme lengths to bury the report.
I am reminded of the book by Alexander Stille, “Excellent Cadavers: The Mafia and the Death of the First Italian Republic”, which details how brazen the Italian Mafia was in 1992 in assassinating two Sicilian magistrates they regarded as enemies of their corrupt world. According to Stille, the perpetrators benefited from government protection for nearly half a century.
- Expectations can be created which cannot be fulfilled, and this can lead to community disappointment and cynicism. [p4]
So far so good for the Zondo Commission. As journalist Stephen Grootes recently pointed out in his Daily Maverick article, the Zondo Commission is not wasted time and money.
There have been some repercussions from the commission.
“It has revealed where other organisations have failed to do their work, and shown which were captured and when,” said Grootes. A further observation by Grootes, which only those married to corruption can deny, is that “the work of the commission has shown how catastrophically the Hawks and the National Prosecuting Authority failed to investigate criminality in the top echelons of South Africa”.
A similar observation was made in the Fitzgerald Commission report: “Problems with and deficiencies in vital institutions and processes were evident from indisputable evidence in the hearings. Those, in turn, led to other issues.” [p4]
What we have learnt from the Zondo Commission testimonies is that widespread corruption and State Capture in South Africa were not accidental. There was a build-up of the rot over years, and key law enforcement agencies such as the Scorpions, Hawks and NPA stood by and watched. At times, some of these institutions had a hidden hand in the concealment of corruption.
What will still go down as the most embarrassing fact in the annals of history is that the National Assembly and members of Parliament were more than happy to see allegations of corruption swept under the carpet if they implicated political figures and members within its ranks or their political establishment.
Political party loyalty reigned supreme over accountability and oversight by MPs. This was a period when the oath of office and need to respect court judgments – such as the Nkandla judgments – meant little, to almost nothing, to MPs.
The effect was noted in the report of a conference titled “Civil Society – Defeating State Capture and Rebuilding the State” hosted by the Ahmed Kathrada Foundation and PARI on 23 October 2019: “The criminal justice system, particularly in areas of prosecution and specialised policing capacity, was systematically corroded and manipulated for political purposes, eroding the rule of law and the administration of justice, which are fundamental foundations for the state and thus also for social stability,” asserted the report. [p54]
- Innovations will be sterile and impotent if attitudes do not change. If the community is complacent, future leaders will revert to former practices. [p6]
Change is the operative word here.
I initially had misgivings about “the real and lasting change” consequent to the Zondo Commission. My scepticism was not born out of the love of critical reflection. It was informed by the behaviour of witnesses before the commission.
As then, and still now previously observed, “the Zondo Commission frequently hits the wall when it comes to obtaining evidence and reliable testimony from witnesses”.
Not much sustained public interest in good governance and anti-corruption advocacy is shown by the community. Complacency has become our new normal in South Africa.
As explained by Eusebius McKaiser, a political and social analyst at the Wits Centre for Ethics, complacency is worse than corruption. “Now we are in a situation where our collective tardy response to corruption has resulted in corruption getting out of hand to the point of it also being a security threat,” argued McKaiser.
Being uninterested in the outcomes of the Zondo Commission and complacent in our obligation to hold looters and the corrupt accountable can only serve to render any change to be proposed or recommended by the Zondo Commission “sterile and impotent”.
To borrow a quote from another author, “[A] garden does not grow unless it is weeded and fertilised. Similarly, democratic institutions do not flourish without attention. It’s time to start weeding and fertilising. Our leading gardeners have fallen down on the job.”
- Some people will, for a variety of selfish and genuine reasons, oppose [the] report’s recommendations for reform. [p7]
With the attacks on the Zondo Commission intensifying, we need to be honest and begin to ponder whether South Africa – ordinary citizens, politicians and their supporters, and the government – will be ready to accept the outcome of the commission, including any of its recommendations.
I must express my doubt at this point.
For as long as society sees the Zondo Commission as a witch-hunt or a platform for politically motivated attacks against influential figures such as former president Jacob Zuma, Ace Magashule, Malema, Shivambu and others, the possibility exists for its rejection.
If we continue to have concerns raised about the alleged use of kid gloves when dealing with powerful figures such as Minister Pravin Gordhan, the possibility of rejection remains as equally high as that of acceptance.
On reflection, the perception of Justice Mogoeng Mogoeng at the release of the 2018/19 judiciary annual report in Braamfontein on 3 October 2019 that “some in society are against the Zondo Commission and would like it dead” may indeed turn into a reality when it comes to its final report.
“The ‘tug-of-war’ between those implicated in State Capture and those who aim to eradicate it is evident within state-owned institutions, in all tiers of government, in various cases brought to court and in attempts to mobilise popular support,” stated the Ahmed Kathrada Foundation and PARI.
Is South Africa ready for the eventuality of the Zondo Commission report and recommendations going straight to the dustbin? Does South Africa have the ability to show political commitment to reform?
In conclusion, let us pause a moment and reflect on the following statement from the Fitzgerald Commission report, then juxtapose it with the awaited Zondo Commission report: “The real test of the commitment which has been made to a new era will arise when decisions are made as to who will be responsible for carrying forward the recommendations which are adopted. The need for independent people, drawn from outside the existing bureaucracy, is plain.” [p7]
Can we trust the ANC to implement the recommendations of the Zondo Commission? Will any of the opposition parties have the political will and decency to rally behind efforts to implement the report? Can Parliament be the difference-maker and implement recommendations of the Zondo Commission?
What we know as the citizenry is that collectively most of these institutions have already shown that they are not capable of accepting the outcomes of legally constituted commissions, as was demonstrated in the Nkandla saga. DM