Point of no return

This may be the year in which, on the corruption front, South Africa faces its “TRC moment”.

As in the Truth and Reconciliation process of the mid-1990s, the choice will be between justice on the one hand and reconciliation in the name of progress on the other — or, to put it another way, justice to the collective rather than to the individual.

2010 was the year in which certain key political actors, such as Cosatu, appeared to wake up to the pressure that wide-scale corruption is imposing on the system of governance. About time.

A critical mass of progressive political actors accrued last year, willing to acknowledge the scale and intensity of the problem. That, at least, was progress; though it was also the year when new lows in egregious corporate conduct were set with the Ancelor Mittal-ITC BEE deal.

Welcome though their new-found zeal for tackling the issue was, watching Cosatu and others snap out of the complacent slumber that has undermined the fight against corruption over the past decade or more was a surreal experience.

It was as if the problem had suddenly arrived from Mars. Where were Cosatu, or the South African Communist Party, or large parts of organised civil society for that matter, when the arms-deal scandal was emerging in the late 1990s?

Where also were their voices on the issue of secret party funding — the dodgy donations that lay behind not just the arms deal but many of the other major corruption stories, such as “Oilgate”, that have set the tone and defined the standard of tolerance for impropriety?

High degree of naivety
Speaking to a gathering of the Council for the Advancement of the South African Constitution (Casac) a week ago, former speaker of the national assembly Dr Frene Ginwala conceded that there had been a high degree of “naivety” in the 1990s about the capacity of the new political order to withstand the pressures of greed and avarice.

Rightly, Ginwala traced the lack of national integrity to the apartheid regime’s own unlawfulness and corruption: “The country was managed by a society of brothers who furthered their objectives through strategies devised in secret. To achieve their objectives they placed their brother members in positions of influence and power — in the army, the police, parastatals, and the intelligence services”.

Pointedly, Ginwala described how the apartheid government would collude with organised crime to trade illicitly in, for example, rhino horn. This point of reference was clear: in the past few months illegal rhino poaching has risen exponentially.

South Africa, Ginwala argues, is approaching the point of no return where it follows the path of India or Russia and becomes a “corrupt society” — one where every transaction, great or small, will require a financial inducement.

At local-government level there is — on the government’s own version — a crisis of corruption. Important people in and around government are in despair, depressed to the point of paralysis. They must be spurred into action.

Loud and clear
The local-government elections will happen sometime in the autumn and represent an opportunity to campaign against corruption: candidates for office must be asked about their own accountability and, if they are seeking re-election, their own track record in holding local government executives to account.

If they are found lacking, other candidates should be voted for or the ballot paper spoilt as an act of protest. The demand for clean governance must be made loud and clear.

To move forward will require a political as well as an institutional response. Corruption cannot be defeated by law alone. Arguably, South Africa already has the institutional basis for tackling corruption, though there is a strong argument in favour of reconstituting the various bits of the system into one, all-powerful, independent anti-corruption agency.

There is little confidence that the current institutions are fit for purpose in the political rather than the legal sense and so this is a debate worth having; too often in the recent past they have been exploited by political factions, usually within the ANC, to serve particular political interests. Thus, they are not protected from political interference.

The decision not to release the full tapes upon which the determination not to prosecute Jacob Zuma serves to underline the point: the suspicion will remain that there was a selective use of the evidence to serve the Zuma campaign to avenge Thabo Mbeki’s political and legal pursuit of him.

It follows from this that the prospects of the ANC or the current government accepting the idea of a genuinely independent anti-corruption agency are about as likely as Hershelle Gibbs becoming the next president of Harvard University. Not with the current president at the helm — that is a reality.

Hence, the notion of a “TRC moment”: to make progress, it may well be necessary to draw a line under the past. This is hardly an attractive notion — that so much embezzlement will escape punishment — but it may be Hobson’s choice if any real progress is to be made and the slide towards an accountability oblivion is to be arrested.

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Richard Calland
Richard Calland is an associate professor in public law at the University of Cape Town and a founding partner of the Paternoster Group.

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