How the Hawks were set up to fail
As the process of “graduating into something terminal” due to rampant corruption is at an advanced stage, it is appropriate and timely to consider, with finance minister Nhlanhla Nene, the need for a manifesto for curing corruption, or at least tackling it in the manner required by the highest court in the land.
Shortly after his return to Cabinet, Finance Minister Nhlanhla Nene made his first public appearance at a conference of the Federations of Unions of SA. Having arrived in a modest sedan without a blue light convoy, he told delegates on 5 March 2018:
“The government will announce its strategy to fight corruption and State Capture within 100 days and its plans to bring those responsible for corruption to justice.”
He correctly noted that:
“Almost all South African and foreign investors have lost confidence in SA. This situation must be turned around urgently.”
Minister Nene has, by joining the two issues, identified the close link between the need to combat the current culture of impunity for the corrupt and the economic advantages flowing from stimulating investment in a conducive environment and with it the concomitant much needed job creation.
The problem is not a new one and has long been identified by the governing party. Consider these words uttered by former President Thabo Mbeki in July 2000 at an NEC meeting of the ANC:
“An important part of our struggle for Africa’s renaissance is the struggle against corruption. As we have already seen in our own country and learnt from sister African countries that have enjoyed longer periods of liberation, it is not difficult for corrupt practice to become an entrenched social phenomenon. Our experience in the last six years tells us that there is absolutely no reason why we should assume that we ourselves stand no danger of becoming victim to the widespread corruption we have seen in other countries in Africa and elsewhere in the world. In all instances, it is the masses of the people who get robbed and condemned to perpetual poverty, while a small elite flourishes on the basis of its ill-gotten gains.”
The year 2000 was also the year which saw the introduction of the NPA unit called the Scorpions into the state machinery aimed at preventing and combating corruption. One of the first steps taken when Jacob Zuma succeeded Mbeki as president of the ANC in December 2007 was the urgent dissolution of the Scorpions and their replacement with a police unit called the Hawks. This move facilitated the attempted capture of the state.
The efficacy of the Scorpions is beyond question. It was the Scorpions who brought the Travelgate fraudsters in Parliament to book; they investigated the generally corrupt relationship between Zuma and his erstwhile financial adviser, Schabir Shaik, leading to the conviction of the latter, and they successfully prosecuted Jackie Selebi, a former National Commissioner of Police and head of Interpol, on charges of corruption.
Acting without fear, favour or prejudice, the Scorpions succeeded, during their last year of operation, in seizing proceeds of corruption to the value of over R4-billion. By contrast, in their first year the Hawks seized a paltry R35-million (a fall in value of 99,1%) while the number of new investigations fell by a massive 85%. The Hawks have in the ensuing years become less and less productive, as appears from the statistics supplied to Parliament: their activities are of an ever diminishing quantity (arrests down from around 14,000 to around 5,000 per year), effectiveness is reduced (fewer convictions and no big fish caught) and they have been abused to persecute good people who have crossed the ANC’s Zuma faction (Gordhan, Pillay, Breytenbach, Booysen, Dramat, Sibiya and many others).
Only the courts have been able to hold the line in the torrent of malfeasance that has accompanied the limp laws and puny policies put in place to protect the likes of the former president and his kleptocratic cronies, some of whom remain in the corridors of state power.
Consider the words of then Deputy Chief Justice Dikgang Moseneke and Judge Edwin Cameron when they rejected the constitutionality of the first incarnation of the Hawks in March 2011:
“There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project.
“It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.”
If those resounding words do not suffice, the opening salvo, in a later case on the same topic, fired by Chief Justice Mogoeng Mogoeng in November 2014, should:
“All South Africans across the racial, religious, class and political divide are in broad agreement that corruption is rife in this country and that stringent measures are required to contain this malady before it graduates into something terminal.
The scourge of corruption
“We are in one accord that SA needs an agency dedicated to the containment and eventual eradication of the scourge of corruption. We also agree that that entity must enjoy adequate structural and operational independence to deliver effectively and efficiently on its core mandate. This, in a way, is the issue that lies at the heart of this matter. Does the South African Police Service Act, as amended again, comply with the constitutional obligation to establish an adequately independent anti-corruption agency?”
As the process of “graduating into something terminal” due to rampant corruption is at an advanced stage, it is appropriate and timely to consider, with Nene, the need for a manifesto for curing corruption, or at least tackling it in the manner required by the highest court in the land.
It is worth noting that the Constitution means what the courts say it means; and that, accordingly, the state is bound by the requirements spelt out by the chief justice in the second passage quoted above.
These non-optional requirements have been summarised as the “Stirs” criteria for anti-corruption machinery of state: specialised, trained, independent and properly resourced personnel who enjoy security of tenure of office. The realisation of these criteria is best achieved by the establishment of an integrity commission clothed with the powers and protections of chapter 9 of the Constitution. This strategy is the best way to ensure security of tenure of office, the one criterion the Scorpions did not enjoy, to the everlasting regret of freedom-loving citizens who aspire to a corruption-free state.
All political parties that are serious about their commitment to dealing appropriately with corruption should expressly commit to the creation of the integrity commission. The anti-corruption work of the Hawks should be transferred to the commission and the Hawks should be allowed to continue to deal with other priority crimes. The Hawks do not meet the requirement of specialisation and are not sufficiently independent, either structurally or operationally, to withstand political and other influences and interference.
The ability to act without fear, favour or prejudice is more readily achieved by a Chapter Nine institution than by a police unit, as can be seen from the track record of the auditor-general and the public protector when compared to that of the Hawks.
Latterly, the Hawks have been reduced to the dirty tricks department of the Zuma faction of the ANC, as best demonstrated by the persecution of Pravin Gordhan, in which NDPP Shaun Abrahams was an active participant. Their respective lack of independence is affirmed by their willingness to awaken from their slumbers and to investigate the cronies of former president Zuma now that he is no longer kingpin of the patronage network into which his presidency descended. The prosecution of Zuma, so long resisted by the NPA, is now in rather clunky progress as regards the 783 impugned transactions in his relationship with Shaik, but nothing yet on those cows Supra stole for Zuma nor the corrupt dis-appointment of Mxolisi Nxasana as NDPP by Zuma.
The public, civil society, faith-based organisations, the business sector and donors to political parties should insist upon the express and unequivocal commitment of all political parties to the establishment of an integrity commission.
No engaged and concerned voter should cast a vote in favour of any political party that does not include in its 2019 election manifesto a clear and unequivocal commitment to the establishment of an integrity commission that is the clear and proper fulfilment of the criteria set out by the court and laid down in binding fashion in the two cases quoted from above.
We neglect these salutary requirements at our peril as a nation. Draft remedial legislation and a suitable constitutional amendment have been prepared in anticipation of the acceptance of the need for an integrity commission. Parliament is already mulling the matter following representations by Accountability Now on whose website the draft legislation appears.
It is also useful to record what then presidential hopeful, Cyril Ramaphosa, had to say on the issues of corruption and state capture in November 2017, when he was still a candidate for the high office he now holds:
“We will confront corruption and State Capture. No meaningful growth, transformation or development will be possible for as long as key public institutions continue to be used for the criminal benefit of a few and public resources continue to be looted.
“It is therefore necessary to take immediate steps to remove from positions of responsibility those individuals who have facilitated State Capture, strengthen law-enforcement agencies and rebuild critical state institutions. A judicial commission of inquiry needs to be established without delay and legal and criminal action will be pursued against the perpetrators.”
Against this backdrop, the countdown of the 100 days referred to by Minister Nene has been a suspense laden wait. If the announcement by the battle-fatigues clad National Commissioner of Police and his Minister, Bheki Cele, last week is the culmination of the process, then the outcome is underwhelming.
It is hard to know what President Ramaphosa was thinking when he decided to appoint Cele as his Minister of Police. The latter was fired by Zuma because of his dishonesty and incompetence as National Commissioner of Police. This step followed the recommendations of the Moloi Board of Inquiry and the findings of the Public Protector in her “Against the Rules” and “Against the Rules Too” reports on the attempted procurement of leased premises for police headquarters in Pretoria and Durban at ridiculously inflated rental rates. Judge Moloi recommended that Cele should be investigated for corruption by the appropriate authorities. This step has not been taken.
Incompetence can be cured by remedial education, but dishonesty is a character flaw that renders the dishonest unfit for the task of confronting the corrupt, a task which is now at hand. Cele is a most unsuitable candidate for that task. Let’s hope that his press conference last week is not what his Cabinet colleague had in mind at the beginning of March.
Paul Hoffman SC is a director of Accountability Now.