SA needs an anti-corruption framework that is fit for purpose

Anti-corruption Week (December 3-9) was an opportunity for us to reflect on progress made towards improving South Africa’s anti-corruption machinery. In particular, it gave us a chance to evaluate the likely effectiveness of the recommendations of the Zondo commission and their implementation by the government.

The Council for the Advancement of the South African Constitution (Casac) and the Public Affairs Research Institute recently convened a conference for this purpose. The view from the conference was that the present framework for preventing, investigating and prosecuting corruption was not fit for purpose and should be overhauled.

While the Zondo commission report did not deal with law enforcement agencies, the commission heard evidence about the near-total functional collapse of the police, the Hawks, the State Security Agency (SSA), the Independent Police Investigating Directorate (Ipid), and the National Prosecuting Authority (NPA).

There are several bills before parliament to reform the SSA, Ipid and the NPA. However, these laws do not speak to each other or cohere in a manner that will enhance the ability of state agencies to tackle corruption effectively.

Advocate Andy Mothibi, head of the Special Investigating Unit (SIU), highlighted the need for a “comprehensive corruption, maladministration and malpractice prevention framework”, and said very few cases referred to the NPA had given rise to successful prosecutions.

The director of the NPA’s Investigating Directorate (ID), Andrea Johnson, emphasised the need to make the body permanent, saying this was essential for the directorate to be able to recruit skilled staff. Johnson further highlighted the need to adequately resource the NPA, and pointed out that it was funded from the department of justice & constitutional development’s budget and did not have an independent budget vote in parliament.

While the SIU had investigated public sector corruption and malfeasance, not enough had been done to combat private sector corruption. Corporate accountability for corruption was just as vital as accountability for public sector graft.

Other weaknesses identified by the conference related to the lack of laws and international agreements to ensure multinational companies involved in malfeasance and corruption in South Africa were held accountable in the country.

The chair of the National Anti-Corruption Advisory Council (Nacac), Prof Firoz Cachalia, spoke of the need to define corruption in a way that was not narrow and overly legalistic, but included unethical conduct such as nepotism and conflicts of interest. Cachalia noted that a redesign of the anti-corruption framework would require a proper consideration of the institutions that exist and their powers and functions, as well as whether new additional institutions were required.

Cachalia reported that Nacac had made some progress towards designing an anti-corruption agency that was fit for purpose. Such an agency would, instead of simply being reactive to corruption, also focus on prevention.

Public procurement was singled out as the source of most public sector corruption by both the SIU and Nacac. The Public Procurement Bill now before parliament was heavily criticised, with concerns being expressed about the powers of the minister of finance, the independence of the proposed public procurement office, the absence of provisions for lifestyle audits, and the lack of incentives for whistleblowers. However, the bill provided for crucial interventions that were likely to have an immediate impact, such as a national database of all tenderers and the exclusion of political office-bearers and civil servants and their families from public procurement.

Three weeks ago, the Presidency released a progress report on the implementation of the Zondo commission’s recommendations. While there had been some progress, it remained inadequate and seemingly siloed, with no coherence across the proposed legislative reforms. It appeared the government had done the bare minimum.

While Nacac’s work in preparing a blueprint for anti-corruption was to be commended, it was unclear to what extent it would be embraced by the government and parliament when it was released. What was also unknown was how long it would take to fully implement it. But what was more realisable in the immediate and short term was the full functional and financial independence of the NPA, including establishing the ID as a permanent body with the necessary investigative and prosecutorial capacities.

There is much work still to be done, but there are promising developments that may yet produce an anti-corruption framework that is efficient, durable and delivers results. However, this will require the political will to do what is necessary to create such a system, as well as the buy-in of the broader South African society — which has borne the brunt of rampant corruption and malfeasance.