Institute for Security Studies (Tshwane/Pretoria)

14 February 2014

South Africa: Implications of the National Development Plan 2030 for South Africa's Anti-Corruption Agencies

analysis

The National Development Plan 2030 (NDP), a product of the presidency's National Planning Commission (NPC), boldly states that the vision for South Africa in 2030 is a country that has 'zero tolerance for corruption'.

Whether this is achievable remains to be seen, considering the damning evidence of rampant malfeasance and fraud that is detailed in Corruption Watch's 2013 report.

The NDP makes several recommendations in terms of tackling corruption, but two of these are particularly applicable to anti-corruption agencies such as the Directorate for Priority Crimes Investigations (DCPI) - also known as the Hawks, the Special Investigating Unit (SIU) and the National Prosecuting Authority (NPA).

The plan states that key to fighting corruption is building a resilient anti-corruption system that is unencumbered by political interference; and ensuring that public servants are accountable and responsible, and that the public service as a whole is transparent and responsive.

In light of the 5 485 reports made to Corruption Watch between January 2012 and the end of 2013, with 56% of those made in 2013 coming from professionals based in the public sector, these recommendations are not only a step in the right direction but are also pragmatic and achievable if there is political will and involvement of all South Africans.

What exactly does building such an anti-corruption architecture entail, particularly in relation to anti-corruption agencies?

For one, it means that when individuals are appointed to head these entities, the selection process should be transparent, fair, based on merit and non-partisan.

The process has to have representation from key stakeholders such as political parties, the legal fraternity and other civic groupings.

When candidates are selected, vetted, interviewed and recommended through a transparent and competitive process, this builds trust in the leadership of eventual appointees as well as the justice system as a whole.

Most importantly, it minimises the likelihood that appointees will be beholden to their political overseers. There is already a precedent for such a selection process; for instance with the appointment of judges, the Public Protector and the Auditor-General.

Independent leaders of anti-corruption agencies are also more likely to push for legal action to be followed to its reasonable and conclusive end and to empower personnel to follow the trail of evidence without prejudice.

One case that fuelled allegations of interference in the work of the NPA is that of former South African Police Service (SAPS) crime intelligence head, Lieutenant-General Richard Mdluli. Despite compelling evidence that should have been tested in a court of law, the charges of corruption and fraud against Mdluli were withdrawn.

The North Gauteng High Court subsequently ruled in September 2013, in the case brought by Freedom Under Law (a public interest civic group), that the withdrawal of charges by the head of the NPA's Specialised Commercial Crimes Unit (SCCU), Advocate Lawrence Mrwebi, was 'illegal, irrational, based on irrelevant considerations and material errors of law, and ultimately so unreasonable that no reasonable prosecutor could have taken it'.

Interestingly, earlier media reports alleged that Mdluli had been protected by the Minister of Police, Nathi Mthethwa, who forced acting SAPS National Commissioner Lieutenant-General Nhlanhla Mkhwanazi to halt all investigations and withdraw disciplinary steps against him.

When political elites interfere in the operations of key criminal justice institutions, it threatens the principle of equal and transparent application of the rule of the law.

In South Africa's public service, there have been widespread accusations that the festering culture of 'no consequence' that exists stems from the lack of political will to deal with high-level corruption.

The investigations by the SIU (starting in 2005), into corruption, fraud and maladministration in the social development ministry's grant system were reported in 2007 to have saved government some R7,7 billion.

However, while the bulk of those sanctioned and prosecuted were low-level employees and middle managers, the evidence strongly suggests that such widespread social grant fraud could not have occurred without the collusion, or at least having being condoned by high-ranking, politically connected government bureaucrats.

Indeed, cabinet ministers appear to be immune from criminal sanction despite hard evidence of corrupt practices - as the case of the former communications minister, Dina Pule, attests.

Her ANC colleagues acted as though she had been the victim of her nefarious activities to illegally direct millions of rands to her partner, and she remains a member of parliament with a healthy salary of over R900 000 per annum - excluding perks.

Indeed, if this selective application of the law is true, and if those who are charged get off with a mere slap on the wrist, most public servants will have no motivation to be accountable.

"Evidence suggests that such widespread fraud couldn't have occurred without the collusion of high-ranking government bureaucrats"

The Public Administration Management Bill is commendable in its aims to, among other things, set up an anti-corruption bureau and to restrict public service employees from conducting business with the state. Its success, however, depends on the political will to take action against those who face allegations of corruption.

This requires independent leadership in anti-corruption agencies; leadership that does not buckle under political pressure and is not beholden to politically connected individuals or any other elites.

Furthermore, leaders of anti-corruption agencies should be willing to co-operate with other anti-corruption actors and agencies in terms of sharing expertise and information.

Indeed, fighting corruption in both the public and private sectors requires information and evidence of wrongdoing, which makes insiders from these organisations, who have witnessed fraud and malfeasance, key actors.

The Corruption Watch 2013 annual report is based on data collated largely from anonymous tip-offs. This is understandable given that the protection of whistle-blowers is far from adequate in South Africa.

Arguably, a more robust approach toward shielding whistle-blowers from victimisation would see more public sector employees openly reporting corruption and facilitating access to detailed information.

One flaw in the current Protected Disclosures Act (2000), which governs the acts of whistle-blowers, is the limited number of bodies to which disclosures can be made - in this case only the Auditor-General and the Public Protector.

The NDP acknowledges these shortcomings and recommends that there should be adequate provisions for security and confidentiality of whistle-blowers; guarantees against civil or criminal liability when disclosures are made in good faith; and that a public body to create awareness and monitor whistle-blowing should be created.

Ensuring the independence of anti-corruption agencies along with transparency and accountability in the public sector is key in fighting corruption.

These are two recommendations in the NDP that all stakeholders need to heed. There are enormous developmental benefits in preventing and curbing corruption, including reducing resource wastage.

Indeed when financial resources are appropriately used in the provision of basic amenities, quality of life improves - particularly among the poor who depend the most on public goods.

A better life for all is an ideal that lies at the very core of South Africa's constitution, and curbing corruption is key to realising this ideal.

Hamadziripi Tamukamoyo, Researcher, Governance, Crime and Justice Division, ISS Pretoria.

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