Corruption: a fine balance of forces

Patrick Laurence argues that the war against corruption has entered a critical phase.

Summary - Eighty per cent of South Africans believe that corruption is one of the main problems facing our new democracy. Yet fewer than 11 per cent have had direct personal experience of it. The perception that corruption is pervasive in our society is due largely to the vigilance of the media in reporting suspected cases, particularly those involving politicians and civil servants, and it is reinforced by the number of high-ranking ANC members who are involved. Allan Boesak, Cynthia Maropeng, Tony Yengeni and Winnie Madikizela-Mandela have all been convicted of improprieties, and suspicions now extend to the cabinet, with deputy president Jacob Zuma, defence minister Mosiuoa Lekota and former transport minister Mac Maharaj under a cloud. Many believe these developments make a mockery of the ANC’s commitment to open, honest governance. However, the party’s track record looks less reprehensible when compared to that of past NP governments. Three senior members of the last NP government were imprisoned for corruption and their offences are probably only the tip of the iceberg. Whatever deficiencies exist today, there is nothing comparable to the NP’s unlawful use of public money to establish death squads or to fund pro-government propaganda. Nor does corruption here look bad when compared with corruption overseas: South Africa ranked 38th (out of 102) on the International Corruption Perceptions Index for 2002. This is not grounds for complacency but it belies the Afro-pessimists’ belief that black government inevitably means a morass of bribery and greed. The government has taken commendable measures to prevent abuses. It established a national anti-corruption forum in co-operation with business and civil society, and created the Special Investigating Unit, the Asset Forfeiture Unit and the Scorpions to act as powerful frontline anti-corruption forces. It has also drafted new legislation that prescribes penalties of up to 15 years imprisonment for officials who solicit or accept ‘gratification’. Nevertheless, the DA’s Raenette Taljaard is sceptical. She argues that corrupt officials escape prosecution because of confusion about which unit is responsible for specific offences, and she questions whether the ANC has the will to fight corruption when so many high-ranking ANC members are prime suspects. She notes that after Joe Modise’s death the ANC halted the investigation into allegations that he benefited from the arms deal; it dragged its feet regarding allegations against Allan Boesak; and it defended Nkosazana Dlamini-Zuma when she mismanaged public funds during her tenure as minister of health. The ANC also prevented Scopa (the Standing Committee on Public Accounts) from exercising its oversight responsibilities regarding the arms deal. And Mbeki, she points out, is quick to accuse critics of racism instead of investigating their accusations. In summary, there is a commendable array of laws and institutions to fight corruption but these are threatened by the ANC’s tendency to protect its leaders and to play the race card against critics. Several new developments have occurred since the article on corruption in this issue was completed: 1) the Scorpions sent 35 questions to Jacob Zuma as part of their investigation into allegations that he solicited a protection fee from a French armaments company; these were subsequently published in the Sunday Times; 2) Zuma accused the Scorpions and director of public prosecutions Bulelani Ngcuka of leaking the questions to the newspaper; 3) ANC secretary-general Kgalema Motlanthe criticised Ngcuka’s conduct of the investigation; 4) the future of the Scorpions as an independent agency was threatened. Each of these is fraught with serious implications but the prospect that the Scorpions could become a subordinate unit of the SAPS is the most disturbing of all, since they are the most visible indication of the government’s commitment to eradicate corruption even at the highest levels. The light sentences imposed on Toni Yengeni and Mosiuoa Lekota by the ANC disciplinary committee have already sent worrying messages about the party’s will to pursue the anti-corruption campaign without favour. What is urgently needed now is a speedy investigation into the allegations against Zuma; if there is a case against him, he must be indicted as soon as possible.

An overwhelming majority of South Africans rate corruption as one of the main problems facing the post-apartheid order and, by implication, one on which the future welfare of their emerging nation depends. But the marked discordance between their perception and experience of corruption demands explanation.

The Country Assessment Report on Corruption, co-authored by the African National Congress-led government and the United Nations office on drugs and crime, records that eight in every ten South Africans believe "there is a lot of corruption" in the fledgling society that came into existence with so much hope less than a decade ago. For that reason they think corruption should be ranked high among the priority issues confronting the government.

As the report notes, however, there is an incongruity between the actual experience of corruption by South African citizens, from the ordinary man or woman in the street to officials in the civil service, and their almost visceral conviction that it is widespread. Extrapolating from surveys quoted in the report, it is evident that direct experience of corruption varies from a minuscule two per cent for individuals to 11 per cent for families or households.

A similar though less shrill dissonance is manifest between psychological perception and empirical experience in the business community: 62 per cent of businessmen and women categorise corruption as a serious issue in the business community against the relatively small percentage from whom a bribe has been either solicited (15 per cent) or who have had to pay a bribe or an extortion fee (seven and four per cent respectively).

Two complimentary factors help to account for the discrepancy. One is the vigilance of the media in reporting actual or alleged cases of corruption, particularly those pertaining to politicians in the legislative and executive branches of government and to civil servants entrusted with the delivery of social services. Hardly a day goes by without a major report of corruption in one form or another. The media's portrayal of corruption as a frequent and ubiquitous occurrence in the new South Africa is reinforced by the number of top ranking members of the ruling African National Congress (ANC) who have either been indicted by the courts for crimes that are classifiable as corruption - including bribery, extortion, fraud and theft of public money or donor money - or who are suspected of having committed these offences.

ANC notables whose probity has been blemished by court convictions include, in chronological order:
Allan Boesak, the former provincial leader of the ANC in the Western Cape, who was sentenced to imprisonment for three years for stealing money entrusted to him for the poor by Scandinavian donors;
Cynthia Maropeng, former deputy speaker of the Mpumalanga legislature who is serving a seven-year prison sentence for pilfering money intended for ANC constituency projects;
Tony Yengeni, former ANC parliamentary chief whip who faces a four year prison sentence (against which he has appealed) for defrauding parliament; and
Winnie Madikizela-Mandela, who is seeking to avert imprisonment by appealing against her conviction on multiple counts of fraud and theft in the Pretoria High Court, for which she was sentenced to jail for five years.

The impression that the ANC is struggling to contain corruption within its own ranks is strengthened by suspicions of financial improbity against men who are either situated in the uppermost echelons of the ANC or who have served in them in the past. Among them are two men who occupy the second and third highest positions in the ANC hierarchy after president Thabo Mbeki himself: Jacob Zuma and Mosiuoa Lekota, who respectively serve as deputy president and national chairman of the ANC. These two men occupy appropriately high positions in the national cabinet: those of deputy president and minister of defence respectively. A man who is in a similar predicament is Mac Maharaj, the immediate past minister of transport. He is now a director of FirstRand.

The allegation against Zuma is that he solicited a protection fee of R500 000 a year from Thales, the French-based armaments company that in an earlier form, when it was known as Thompson-CSF, won a contract to supply combat suites to four corvettes or frigates on order for the South African Navy. Zuma has vigorously and repeatedly denied the allegations. But investigation of them by the elite Directorate for Special Operations, aka the Scorpions, signals that they are taken seriously and not dismissed as malicious slander. Zuma's close association with Durban businessman, Schabir Shaik, does not help his cause. The controversial Shaik is himself under investigation for alleged unlawful possession of cabinet documents relating to the contentious multi-billion rand arms deal.

The shadow of impropriety has fallen across Lekota because of his failure to declare his business interests in wine and petroleum in the Free State and property in KwaZulu-Natal, as required by the parliamentary code of conduct and the Executive Members Ethics Act. Lekota avers that his failure to do so was an accidental oversight rather than a wilful act. An ANC disciplinary hearing is in the offing.

A similar silhouette of disgrace hovers over Maharaj since the publication in the Sunday Times of detailed allegations that he and his wife received payments and gifts valued at more than R500 000 from the controversial Schabir Shaik during or immediately after Maharaj's tenure as minister of transport. Shaik is the CEO of Nkobi Holdings, which, in turn, is part of a consortium that won the lucrative N3 toll road contract from the transport ministry when Maharaj headed it. An investigation into the allegations by auditing firm Deloitte & Touche has been ordered by First Rand. Maharaj is on leave of absence pending the outcome of the investigation.

In the eyes of its political adversaries these developments have blighted the ANC's election promises of 1994 and 1999 to govern in an open and honest manner and, of course, to take a tough stand against corruption. Thus human rights activist Rhoda Kadalie, who has won a reputation for her trenchant criticism of ANC policies and their implementation, writes of the morally debilitating impact on governance of "serial acts of corruption". Raenette Taljaard, spokesperson for the Democratic Alliance (DA) on finance, takes an even tougher line in a statement entitled The ANC and Corruption - Failing to Act is Acting to Fail.

In that statement Taljaard juxtaposes president Mbeki's emphasis on the need to enhance moral renewal with the sight that greeted South Africans who observed the opening of parliament in February. "They see a motley crew under investigation while the new South Africa is under construction," she states. She identifies four people by name: Yengeni, Madikizela-Mandela, Zuma, who she accuses of maintaining a "stony silence" on whether or not he met the top man from Thales in November 1998 or March 2000, and newly-acquired ANC ally Martinus van Schalkwyk of the New National Party (whom she includes because of the alleged corrupt dealings of his "apparatchiks", Peter Marais and David Malatsi). A barbed rhetorical question follows: "What moral renewal edifice will we build on the foundations of quicksand?"

These statements form part of the incessant but justifiable scrutiny and appraisal of government actions by opposition parties and civil society in fulfilment of their commitment to the maintenance of good governance. The results of their surveillance offer a gloomy perspective.

Another more positive perspective emerges, however, when the ANC-led government is compared with the record of successive National Party (NP) governments between 1948 and 1994. Hennie van Vuuren, who heads a corruption-monitoring unit at the Institute for Security Studies, refuses to even consider comparison between the old and new regimes. His rationale is that it is futile to compare "rotten apples" with apples. He may have a point. But, even if the two situations are not strictly comparable, it is instructive to assess corruption under the ANC-led government in the historical context of decades of NP government.

It is pertinent to recall that a senior member of the last NP government, Pietie du Plessis, was imprisoned for misappropriating trustee funds. It should be noted, too, that two deputy ministers in the dying days of NP suffered the humiliation of imprisonment for monetary greed:
Hennie van der Walt, a deputy minister in the now disbanded department of co-operation and development was imprisoned for embezzlement, having earlier won an unenviable niche in South African history by defending the use of the word piccannin in parliament in the twilight of the former regime; and
Abe Williams, a former deputy minister of social development, who found himself on the wrong side of the law and in prison for succumbing to the temptation of bribery.

These transgressions almost certainly represent the proverbial tip of the iceberg, given the repressive legislation that the previous regime placed on the statute book to strengthen its capacity to deal with subversion and to halt the free flow of information and cover up the misdemeanours of its apparatchiks in the police force and the defence force. The licensed killers in the "terrorist detection unit" at Vlakplaas and in the Orwellian-sounding Civil Co-operation Bureau, have, of course, won notoriety through their pitiless war against those they designated as "enemies of the state". But close examination of their modus operandi shows that they often had a taste for the good life and, as behoves a political mafia, a talent for making their actions profitable as well as murderous.

Whatever the deficiencies of the ANC government in the fight against corruption, there is nothing comparable to the unlawful and covert use of huge sums of public money by the National Party to establish clandestine death squads as part of its strategy of total defence of the existing order. Nor is there any parallel in the ANC's record of governance to the previous regime's furtive diversion of public funds to establish a newspaper, The Citizen, to wage political war on its behalf and to hire journalist mercenaries in the United States as proxies in its war against "terrorists" and their "communist allies". The NP's moral trespasses serve as a reminder of what can happen if corruption is not checked timeously and if the ruling party begins to flirt with the dangerous notion that the end justifies the means.

Transparency International provides another context that needs to be borne in mind. South Africa is ranked 38th out of 102 countries on its International Corruption Perceptions Index for 2002. South Africa is the third highest-ranking African country after Botswana and Namibia. Though South Africa's 38th place may not be particularly gratifying to those proud members of the ANC who take its commitment to open and clean government seriously, it does not - or should not - bolster "Afro-pessimists" who believe black government inevitably means descent into a morass of corruption and greed. Nor should it be taken to mean there is no need for concern. The price of honest government, like that of liberty, is eternal vigilance. To that end the ANC-led government must be credited for putting in place measures and institutions to act as sentinels against corruption.

Many government departments have either established or are in the process of establishing dedicated internal anti-corruption units to underpin the integrity of their operations. They include the department of justice, the National Prosecuting Service and the South African Revenue Service. The anti-corruption unit within the South African Police Service has, however, been incorporated into the organised crime and general detective unit. The Country Assessment Report on Corruption believes the move will make the campaign against corruption in the police more efficient and "more accountable to the public". Beyond that the government has adopted a national programme against corruption - for which it received a pledge of support from the United Nations office on drugs and crime - and established, in co-operation with the business community and civil society, a national anti-corruption forum.

Specialised units serving in the frontline against corruption include the Special Investigating Unit and Asset Forfeiture Unit, under the leadership of Willie Hofmeyr, a man whose small stature belies a toughness and tenacity of purpose that helped him survive the pressures of detention without trial by the previous regime. These two units are underpinned by legislation that empowers them to seize and recover profits and assets acquired through criminal activities. Another powerful anti-corruption unit is the one that operates with the Directorate of Special Operations, (alias the Scorpions) which, though operating under the immediate aegis of the National Prosecuting Authority, falls under the ultimate authority of the presidential office. It concentrates on high level cases, including, as noted earlier, the allegations against Zuma.

Another sign of the ANC's commitment to containing corruption is its leading role in crafting a new anti-corruption law to replace the Corruption Act of 1992 which, while criminalising the acceptance of money or gifts by public officials, does not specifically and rigorously criminalise the actions of those who offer bribes in return for preferential treatment. The Prevention of Corruption Bill that is being forged in parliament breaks new ground. To quote from the Country Assessment Report already referred to, the bill reinstates the common law crime of bribery, creates the presumption of prima facie proof of the alleged offence to make prosecution easier and extends the scope of the legislation to all public officials and private citizens, including agents who might act for them.

Further proposed innovations in the bill are: firstly, a provision that makes it an offence to bribe or attempt to bride a foreign official, thus introducing the notion of extra-territorial jurisdiction; secondly, a clause that makes it an offence to be in possession of property that appears to have been corruptly acquired and for which the person concerned cannot give a satisfactory explanation; and, thirdly, clauses prescribing tougher penalties of up to 15 years imprisonment for officials who solicit or accept "gratification" (to use the terminology of the bill) or people who offer or give "gratification". One of the underlying assumptions of the bill is that a more effective anti-corruption law must be underpinned by harsher penalties.

The lengthy process of drafting, debating and revising the bill should not be interpreted as evidence of foot dragging by the ANC government. Rather it signals the need to ensure that the pending law will "pass constitutional muster" if or when it is challenged in the Constitutional Court. A successful challenge in that court will seriously delay implementation of a more vigorous anti-corruption campaign, of which the envisaged new law is a central and indispensable component.

While recognising that the government has forged the legal and institutional instruments to contain corruption, the DA's Taljaard is sceptical about the efficacy of the measures. Of the various anti-corruption units, she observes that there is an inclination for them to stand back for one another, with the result that corrupt practices and corrupt people escape through lacunae in the legal and institutional network. She argues that there is insufficient co-ordination and, concomitantly, confusion over which unit is responsible for what alleged offence. Beyond that, however, Taljaard questions whether the ANC has the political will to pursue a relentless campaign against corruption, particularly when most of the prime suspects are upper echelon ANC members.

On the last point she cites the stalled investigation into allegations that former defence minister Joe Modise abused his position to benefit personally from the multi-billion rand arms deal. "Did they close the file because he died?" she asks pointedly. Her question should be seen in the context of the findings of the Joint Investigation into the Strategic Defence Package that Modise had:
(1) a stake in a company connected to the armaments industry while he was still minister of defence, and,
(2) that the resultant conflict of interests between his governmental duties and his financial ambitions was "extremely undesirable".

The Joint Investigation report notes in its concluding chapter that no impropriety was detected during the public and forensic phases of the investigation. That finding, however, contradicts an earlier statement in the report that "the matter was not investigated during the public and forensic phases of the investigation". The contradiction cries out for further investigation.

So, too, as Taljaard has previously observed, does Modise's role in altering the assessment criterion for the choice of fighter and trainee fighter aircraft during the procurement phase of the arms deal, thereby tipping the scales in favour of the eventual winner, Britain's BAE Systems, and against the initially preferred bidder, the Italian aircraft company, Aermacchi. As the British research consultant Susan Hawley notes in a recent publication, a month before the decision was made in favour of BAE Systems - whose aircraft were twice as expensive as the Italian counterpart and were chosen despite a warning that their operating costs would be "considerably higher" - the British armaments company donated R5 million to the ANC's war veteran's association, of which Modise was a steering committee member. BAE Systems has proclaimed that there is nothing untoward about the donation, that trustees administer the money and that it is fully accounted for. That does not, however, obviate for an independent investigation, particularly as BAE Systems is a major beneficiary of the arms deal. Another cogent reason for an independent investigation is that it has still not been satisfactorily explained where or how Modise obtained the funds to acquire a substantial financial stake in companies operating in the armaments field shortly after - and even shortly before - he retired as defence minister in June 1999.

No further investigation has been conducted into Modise's controversial role during and immediately after the arms deal, however. Modise's death in November 2001 has not changed the situation: the unresolved questions were buried with him, to the detriment of the ANC's reputation as a movement committed to - in the political jargon of the times - accountability and transparency, particularly on the question of corruption. But the reluctance of the ANC leadership to hold its notables to account is not confirmed in the case of Modise.

Its response to suspicions by Scandinavian donors that Boesak might have helped himself to funds given to his Foundation for Peace and Justice to help the poor is a case in point: for months on end the ANC leadership seemed loath to take these concerns seriously, even after a reputable Johannesburg legal firm, mandated to investigate the matter, reported that it was forced to the "inescapable conclusion" that Boesak had "unlawfully appropriated to himself money to which he was not entitled". Instead of taking the carefully reasoned report seriously, the ANC, and Mbeki in particular, seems to have chosen to castigate the media for poor or prejudicial reporting.

Its reluctance to act against Penuell Maduna when he was minister of mineral and energy affairs falls into the same category: he falsely accused the immediate past Auditor-General of covering up the theft of R170 million from the Strategic Oil Fund, ordered an investigation and, according to the Public Protector, allowed the investigation to proceed at huge cost to taxpayers even after he became aware that the charge was without foundation. As Mamphela Ramphele, an independent thinker and stalwart of the liberation struggle, notes, when Nkosazana Dlamini-Zuma was minister of health she mismanaged millions of rands allocated to educating the public about HIV/Aids but was "protected and defended by her party despite evidence of acting in contravention of procurement procedures".

These manifestations of an inclination by the ruling ANC to protect its leaders, even when their actions seem inimical to the common good, impinge adversely on its declared commitment to honest and open government and negate, in part at least, the positive image conveyed by the laws and institutions it has established as ramparts against corruption. So, too, does the heavy-handed manner in which it asserted executive power to prevent the Standing Committee on Public Accounts (Scopa) from exercising, independently and impartially, its parliamentary oversight responsibilities on behalf of taxpayers during the arms deal saga. A similarly adverse message is communicated by Mbeki's quickness to accuse those who raise critical questions about the probity of government ministers and institutions of seeking to perpetuate negative stereotypes of black people. It creates the impression that he prefers ad hominem abuse to rational debate.

Taljaard fears that the ANC, as a former liberation movement, tends to conflate itself with the state and thus to place itself - and its leaders - above criticism and even, by extension, beyond accountability. The placing of party loyalists at the head of institutions charged with responsibility for protecting South Africa's constitutional democracy, including the public protector's office and the National Directorate of Public Prosecutions, is hardly reassuring. It raises the danger that they might place party interests above the state or that they may not see the difference.

Standing back and taking a broad view offers a political portrait in which conflicting forces are vying for supremacy. There is undoubtedly an array of laws and institutions that offer the means to excise corruption from post-apartheid South Africa. As important, they reflect the will by the ANC to do so. But they are endangered by the proclivity of the ANC leadership to place a greater premium on protecting its leaders than pursuing the fight against corruption. Closely linked to that is its penchant for characterising its opponents as unreconstructed racists or, if they are black, as the useful idiots of the racists. By so doing the ANC shuts it ears to warnings that it might do well to heed.