Elite pacting harms the fight against graft

The rich and powerful are engaged in a relentless struggle to allow their crimes to go unpunished. When the political will to deal with such elite crimes falters, a culture of impunity takes hold. One of the warning signs is when significant public meetings on combating corruption are sexed up to focus on politicians.

A giveaway is when the president arrives late at a meeting, bursting into a hall full of delegates with his police band blaring the national anthem — and then proceeds to thump the podium about political accountability. I have seen shades of this in Kenya and Brazil — and, of course, George W Bush is a master at such duplicity.

The other approach is that the president fails to pitch at all. Nor does his Cabinet or most of his directors general. Senior law-enforcement officials and business leaders happily take their cue. There was much evidence of this at the third national Anti-Corruption Summit in Gauteng last month.

Three years after the last mass gathering of this type, the wind has been knocked out of the ”anti-corruption drive”. A cursory glance at the uncollected name tags confirmed that the debate, with a few exceptions, was left to junior and mid-level leaders from government, business and civil society to engage in. Nine ministers and deputy ministers failed to pitch.

There are three factors that are contributing profoundly to this malaise. The first is the high number of instances of political corruption involving senior elected and appointed officials and top business leaders. This is the ”tender brigade”, the real counter-revolutionaries among us, whom some senior leaders in government and the ruling party are concerned about.

The second is there is an emerging culture of attacking key independent institutions such as the judiciary and the press, which are made the scapegoats for the ills that the rich and the corrupt visit upon society.

Third, the closure of the Scorpions and their inclusion within the police is without doubt a major step backward for our free nation. The mooted new unit to replace them, located within the police, has no mandate to combat corruption. This may have caused Constitutional Court Justice Kate O’Regan to pose a veiled warning to government counsel that South Africa, being a signatory to the United Nations Convention against Corruption, is obliged to have a law-enforcement agency specifically to fight corruption.

She is correct — in part. We have a number of credible state agencies tasked with tackling corruption, including the Special Investigating Unit (SIU). This is the potential strength of the South African model, theoretically a coordinated multi-agency approach which should survive even if one of the agencies is captured or neutralised for short-term political or financial gain. But the UN Convention also requires lawmakers to ensure a level of independence of such bodies. This is not an absolute term, rather a means to ensure that the agency is protected from interference by the executive. This was the real strength of the Scorpions: consider the great difficulty President Thabo Mbeki and the minister of justice had in preventing the prosecution of Jackie Selebi.

It is also the fatal flaw in locating the proposed new Priority Crimes Unit within the police, where the head of the unit is under the direct thumb of the executive, with no significant buffer to prevent interference. This model will make it easier for those with power and influence within government and business to strike extrajudicial deals protecting them from prosecution. Why is it that those who claim to operate on the left of the political spectrum are pushing a project that will primarily benefit the rich and powerful? It is very curious.

It also exposes the fallacy peddled by former Police Commissioner George Fivaz, who said corruption is not deserving of the resources committed to combating it and that we should rather focus on violent crimes. No citizen would reject the need to deal with crimes that afflict us daily, but a hallmark of the constitutional order is the belief that nobody is above the law — especially not the rich. If we punish a poor woman for stealing a loaf of bread, we have to be extra-vigilant in punishing a rich man who loots a pension fund. He is the cause of poverty; the poor woman’s circumstance is largely a consequence thereof.

It was custom under apartheid to arrest street-level gangsters and petty criminals while the white mafia looted and oppressed with impunity. Not only were minor criminals a convenient decoy, but in complex ways the most violent among them often did the dirty work for so-called white-collar criminals. Have Fivaz and those who support this view so soon forgotten this fact of history?

While Judge O’Regan is correct in reminding us of our international obligations, there are other commitments made between the majority of South Africans and the ANC government they voted back into office in 2004. ANC MPs were elected on the basis that they pledged themselves to ”a people’s contract to create work and fight poverty”. Among the practical steps voters were promised in the manifesto is that the ANC government will pay particular attention to crime and corruption by ”strengthening the Scorpions”. Almost five years later, one has to ask whether the political class has breached its contract with the people because of the political aspirations of one man. More importantly, it could be an unforeseen consequence that a crony class is readying itself to seize power.

Hennie van Vuuren is the head of the Corruption and Governance Programme at the Institute for Security Studies (ISS) in Cape Town

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