The Zondo commission has been a welcome step in the attempt to come to grips with the forms and extent of state capture in South Africa and to devise a way forward – with prosecutions, reforms and improvements to ensure that corruption is terminated or severely curtailed.
Our socio-economic woes are far too dire to allow unchecked corruption to continue to sap state resources, leaving far too many citizens in despair.
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The testimony to the commission so far demonstrate how the former president and some Cabinet ministers have wielded their considerable power and influence to extort and ensure benefits for themselves and their families and how moneyed interests in the form of the Gupta family influenced the operations of government at the top level, including the appointment of Cabinet ministers and those overseeing state-owned enterprises, as well as the passage of corruption-enabling legislation and policies.
Moreover, we know that Parliament was lax in its oversight and that the National Prosecuting Authority (NPA) was disengaged, aided and abetted by a conspiring and weak leader, Shaun Abrahams.
What must surely emerge from the Zondo commission are a raft of prosecutions – and there is no need to wait until the end of the commission to start the ball rolling. As I have mentioned in an earlier article, there has been a dereliction of duty on the part of the NPA to vigorously pursue prosecutions against those implicated in state capture.
There exists no reason why the prosecution authorities cannot embark on a vigorous prosecution drive now. Such action has two immediate beneficial consequences, namely, to ensure that those who have committed crimes are punished sooner rather than later, and to send out a strong message to society that corruption will no longer be tolerated. The symbolism of criminal charges being levelled against those who have defrauded the public purse will be enormous.
Prosecutions elsewhere provide guidance
For guidance on vigorous prosecutions, we might look elsewhere. One example comes from the United States (US). A few months ago two courts in New York finally confirmed convictions for corruption of two of New York State's most powerful politicians, the former speaker of the House, Sheldon Silver, and the former majority leader in the New York State Senate, Dean Skelios. These two men loomed large in the New York State capital, wielding their power and influence seemingly unchecked for three decades.
The convictions of these two very powerful men would not have been possible without the determined efforts of Preet Bharara, the US Attorney for the southern district of New York. He spearheaded a campaign of prosecution that in the past several years has led to dozens of New York politicians being prosecuted for corruption or pleading guilty. Since 2009, 22 corrupt politicians have been convicted or plead guilty in New York State. New York is one of the 50 states; the statistics for prosecutions of corrupt politicians across the US are quite staggering.
One can find examples elsewhere as well: Commencing in 2014, corruption investigations in Brazil have reached the highest levels of the Brazilian government and corporate elite. Former President Dilma Rousseff was impeached in 2016 on allegations of corruption.
Her successor, who lead the impeachment, President Michel Temer, was also charged with corruption. He ultimately evaded prosecution when the Brazilian parliament voted not to proceed with the case – but not on the merits. Former President Luiz Inacio Lula da Silva is serving a 12-year sentence for corruption.
The efforts to secure these convictions have been credited to Judge Sergio Moro, who has been heralded as a brave anti-corruption figure in Brazil. But his anti-corruption efforts have been bolstered by prosecutors and investigators who have secured 157 convictions and recovered more than $12bn, aided and abetted by a public willing to provide leads.
There are countless examples elsewhere as well – even in countries with unimpressive democratic legacies.
Why speedy prosecution is important
Corruption carries with it incalculable harm which is often intangible – although we have seen plenty examples that draw the causal connection between the corruption and its consequences. Everyone suffers, but the poor are particularly affected.
There is no doubt that a clear line can be drawn, for example, between the recent 1% increase in VAT and the diminished amounts collected by SARS. This is a consequence of what the Nugent commission has identified as linked to Tom Moyane's odious tenure at SARS, where state capture was particularly pernicious and ubiquitous.
Successful prosecutions render the harm of corruption calculable and tangible, exposing to the public not just the cost of the corruption to individuals and society, but also how such amounts in the public purse ultimately must serve the public good.
It is well known that the cumulative effect of public corruption is that people become very cynical – of politicians and institutions, especially legal institutions. Corruption is corrosive of the civic ethos of citizens sharing and caring for each other. This does not bode well for an emerging and fragile democracy like South Africa.
The effect of prosecutions is to stem and disable such cynicism, installing in citizens a renewed faith in the legal system.
Most significantly, prosecuting those who are implicated serves as an acknowledgement, even a reward, to those who came forward to reveal the practices, processes and the extent of corruption.
By recognising the courage of whistleblowers, it sends a strong message to others who are or may be fearful of coming forward. Impunity breeds disengagement. Successful prosecutions will enable the kind of engagement needed to ensure zero tolerance towards corruption.
Instituting a series of prosecutions sooner rather than later deals a powerful blow to impunity, signalling that nobody is above the law. We live in a country where impunity seems to be the national currency – whether it be crime, bullying and violence. Prosecuting politicians and their collaborators send a strong message that nobody is above the law. Such a message is sorely needed in South Africa.
Surely there is enough evidence that has been produced, from the Zondo commission to the Nugent commission, and what is in the public domain, to enable the NPA to embark on a campaign of prosecutions. Even if direct evidence of crimes is not presented to the commission, the NPA may use testimony provided to the commission to unearth evidence that will be admissible in court – and will be sufficient to secure a conviction.
Setting the process in motion will be like shaking a tree – with subpoena powers ensuring the emergence of more evidence.
The president is currently embarking on a high profile public appointment of the new National Director of Public Prosecutions. Would it not be wonderful if the new appointee sees the prosecution of state capture as her first priority?
- Penelope Andrews is dean and professor of Law at the University of Cape Town and Sabbatical scholar at Columbia University School of Law.