The African National
Congress is not the party it used to be. Jacob Zuma, now into his second term
as President of South Africa, is spearheading a new movement in South African
politics. The President and his party are conducting a war on the judiciary and
in the process making corruption unprosecuteable
- a new word for a new
political practice.
In 1995 General George Fivaz was appointed by President Nelson Mandela
as the first National Commissioner of the new South African Police Service. Mandela
required that the General’s first task was to transform the many Apartheid
forces into one and to tackle crime. Fivaz lasted his term but only just. By
coincidence my neighbour at the time, I recall him saying something about the
interference becoming too much to tolerate. In 2000 out of the bag came a Mr
Jackie Selebi[i]
to replace him.
The former head of the
ANC youth league and holder of the Human Rights Award from the International
Service for Human Rights, Selebi took corruption by the horns.
A report by Rademeyer
and Wilkinson states that it was on Selebi’s orders that the police’s
Anti-Corruption Unit (ACU) was shut down, seven years after it was instituted. In
that period (1996 – 2001) the unit received 20,779 allegations of police
corruption. Between ‘95 and ‘99 an average of 1,320 police men and women were
convicted each year on criminal charges. As of June 2014, and with no
terminations in sight, 1,448 serving police officers were convicted criminals,
among them a major-general, ten brigadiers, 21 colonels, ten majors, 43
lieutenant-colonels, 163 captains, 84 lieutenants and 716 warrant officers.[ii]
Given that the police
force numbers nearly 160,000 officers that isn’t a big number at all, except for
the type of crimes those 1,448 committed. They range from ‘murder and attempted
murder to rape, assault, corruption, theft, robbery, house-breaking, drug
trafficking, domestic violence and aiding escapees. The report concludes, ‘The
record suggests police crime higher than police admit.’
Selebi wasn’t to last.
In 2008 he was charged with corruption, put on extended leave and in 2009
replaced by former MEC for
Transport, Safety and Security in
KwaZulu-Natal, Bheki Cele - a man who had already proven a liking for treating
government money as an entertainment and advertising fund for the ANC in
support of Zuma in rural KwaZulu-Natal.[iii]
Cele has an odd
background in the party. He always appeared high on the party lists yet never
made it into either Mbeki or Zuma’s cabinet, except here. Compared to a cabinet
post, National Commissioner of Police is administrative and normally, at least
in the British system, a career appointment. Cele assisted Pres. Zuma until his
own double dealing came to light. It seems he authorised gross overpayments to
the tune of R1.7 billion on two building leases, at least allegedly. Zuma declared
Cele ‘unfit of office’ and in the same breath installed him in the easier to
skive and dive job of Deputy Minister for Agriculture. In July 2012 Cele
launched a court application to contest the findings (alleging) ‘the
president’s decision was actuated by ulterior motivates’[iv]
but it seems to have fizzled out and the two have called a truce. Cele is still
going strong. In 2013 he was placed on the ANC's list of preferred candidates
to go to parliament. In 2014 he attempted to delay the South African
Public Protector's report on wasteful expenditure at Nkandla, President Jacob
Zuma’s private homestead.
Out with Cele then, in
with Ms Riah Phiyega (full name Mangwashi Victoria Phiyega), a more
sophisticated proposition. With a BA in Social Work, an MA in Social Sciences
and a post-graduate diploma in Business Administration Phiyega was a
fire-cracker who had held some high-powered posts including Group Executive for
corporate affairs of ABSA and separately of Transnet, jobs reserved for the
crème de la crème.
It didn’t take Phiyega
long to get sucked into controversy. At the Marikana commission of inquiry,
where the deaths of 34 protesting miners at the hands of police were being
investigated, she did a sterling job of being evasive - fuelling speculation
that she was protecting Police Minister Mthethwa.[v]
She has also been fingered in the tipping off of Western Cape police
commissioner Arno Lamoer, regarding a probe against him carried out by crime
intelligence.[vi]
‘In the 18 months or
so since her appointment, Phiyega and the SAPS have stumbled from one crisis to
the next’ reported the Mail and Guardian in a sad account of her performance so
far.[vii]
It’s important to note too that the saga surrounding Transnet for pension plundering
during Phiyega’s tenure is ongoing.[viii]
ABSA is but a part of the
world’s biggest bank, Barclays, an institution not adverse to criminal activity
either. ‘Ed Miliband demands criminal probe into Barclays interest rate rigging
scandal as £3.2bn is wiped off bank in share plunge’ roared a recent
Daily Mail news story.[ix]
The fine the bank got amounted to a tee-hee-hee slap on the wrist; relatively
speaking black folk in South Africa have been hit far harder for nicking bread
to eat. Of course both instances
are damning by association only, but certainly a murky background worth
noting if only for the standard business practice and the fluid line between
business and politics.
While the police are
the front line of crime prevention, behind them are other bodies set up to
further combat specialised crime. An excellent idea in theory, but one that has
been violated in practice.
In January 2001 the
Scorpions, brainchild of the Fivaz/Mbeki era, were formed. They were different
from the everyday prosecution service. Through the National Prosecution
Authority (NPA) they reported direct to the Minister of Judiciary and
Correctional Services, meaning that they were independent, as independent as
the judges and magistrates were. Their charge was to gun for crimes of national
priority. President Mbeki showed he was serious by making sure they were kitted
out with the best brains and equipment.
Soon, with a prosecution success rate of over 90%, the Scorpions were
proving the principle of equality before the law in South Africa. However the
national priority targets were all too often ANC and business aligned. Included
among many dropped cases were the arms deal connections and high profile types
like Mac Maharaj, Jacob Zuma and Shabir Shaik.
In 2008 Mbeki was to
go and Kgalema Motlanthe, the stand-in while Zuma was being cleared (taking a
step from the dock and a pesky rape trial to Government House), decided Mbeki’s
Scorpions would be better placed to serve if it were a subordinate member of
the police force, despite Mbeki’s original mandate having been “to deal with
all national priority crime, including
police corruption".[x]
In 2009 the Scorpions were
disbanded, ANC Chief Whip Mthethwa was a principal agent in their demise.[xi]
Yes, he is the Minister of Police referred to above.
The Hawks replaced the
Scorpions. Its CEO Mr Anwa Dramat was also the police Deputy Commissioner,
creating a cozy arrangement with the SAPS which manifested itself in the
close-down of all Scorpion investigations and on-going prosecutions. The new Hawks
were out to tackle ‘serious crime referred to it by the National Commissioner
of the South African Police Service’,[xii]
making the already proven corrupt now in charge of investigations on their own.
In 1996 Act No. 108 of
the Constitution of the Republic of South Africa created a single National Prosecution Authority (NPA), a body with the power to
institute criminal proceedings on behalf of the State, accountable to the
Minister of Justice and Correctional Services.
The first man chosen
to head up the NPA was multi-millionaire Bulelani T Ngcuka, described by opposition
Democratic Alliance spokeswoman Sheila Camerer as being "… a tough-minded
crime-buster who played rough and acted without fear, favour or prejudice when
pursuing criminals as required by the constitution and therefore he was the
right man for the job.”[xiii]
But after 10 years and having investigated Jacob Zuma to the point of declaring
“there was prima facie evidence to suspect Mr. Zuma of corruption in a
multi-million dollar arms deal, but not enough to prosecute him”[xiv]
he suddenly resigned. It was a film script written for Zuma; he was able to
immediately proclaim Ngcuka’s action robbed him of the opportunity of proving
his innocence. Further factions of the ANC accused Ngcuka of being an Apartheid
spy and a stooge.
Ngcuka’s actions after leaving the NPA have
openened a new perspective on the man, however. He became Chairman and
co-incidentally had a substantial holding in Basil Read, one of the 15 major
construction companies fined R1.46 billion ‘for “rampant” collusive tendering’,
cheating all South Africans, between 2006 and 2011. To give perspective, that
fine is roughly equavilent to being fined R2 for stealing R10, not even a slap
on the wrist.
In 2005 Ngcuka was
succeeded by advocate Vusumzi "Vusi" Pikoli, a man who earned his
degree from the university of Zimbabwe and completed military training in
Angola as part of the ANC’s armed resistance. Pikoli the firebrand instituted
criminal charges against Selebi as well as Zuma. He was first suspended and
then fired. However the Ginwala Commission recommended he be restored to his
post once “sensitized to the broader responsibilities of his office and in
particular to enhance his understanding of the security environment in which
that office should function.”[xv]
While the tussle was on public prosecutor and longtime advocate Mokotedi Mpshe stood
in as Director of the NPA. In April 2009, Mpshe ‘decided to drop more than 700
corruption and other charges against Jacob Zuma.’[xvi]
Pikoli wasn’t re-appointed.
Zuma had found someone else. In 2009 former justice director general Menzi Simelane
was given the job by the president. But the High Court found differently,
declaring Simelane unfit to hold office. Importantly, the court found Zuma’s
subjective appointment was “not in keeping with the constitutional guarantee of
prosecutorial independence”. Significant here is that the ANC knew before the
appointment that Simelane was tainted. The Ginwala inquiry had already severely
criticised his abilities while justice director general, his conduct found to
be “irregular” and his action of drafting a letter to Pikoli instructing him to
abort the imminent arrest of former police boss Jackie Selebi held to be a
potential contravention of the NPA Act.[xvii]
Simelane’s removal has so far stood, but he’s not bothered as he’s been moved to
another lucrative spot; legal advisor to the Minister of Public Service and
Administration – it is good work when it’s offered.
As Stephen Grootes pointed
out, once Zuma had control over the NPA
he had no need to challenge the judges – they can only hear what is brought to
be heard and to that extent it would have been a smart move to get Simelane’s
appointment through. [xviii]
While the legalities
were being attended to Nomgcobo Jiba, wife of former Scorpions member Booker
Nhantsi (who was convicted of the theft of R193 000 in trust funds), held the
top post. Her man is crucial to the tale since Jiba’s claim to fame; the
attempted arrest of ex Scorpion Gauteng Head Gerrie Nel just as he was to prosecute
Selebi in January 2008, is still seen as an act of revenge against Nel who was instrumental
in prosecuting her husband. Nel won that tussle; Selebi got a 15-year prison
sentence[xix]
and the City Press story “Jiba wanted Nel ‘by hook or by crook’” of 4 August
2012[xx]
indicates the attempt was all part of the political hit to get rid of the
Scorpions.
Incidentally,
President Zuma had Nhantsi’s record expunged. Incidentally also, Richard
Mdluli, then crime intelligence boss, signed an affidavit putting his support
behind Jiba in the matter, instrumental in allowing her to keep her job. Ms
Jiba has since claimed she was ‘innocently involved in the Nel matter and not
the main driver of it.’ Perhaps so but it doesn’t detract from the assault on
South Africa’s legal integrity. Nor does it answer why Jiba went after Natal Hawks head Major
General Johan Booysen, on, as Judge Trevor
Gorven described it, charges that ‘did not meet even the barest of minimum
requirements.’[xxi]
In May 2013 the well-followed
Breytenbach case finally came to a head, perhaps the most damning indictment of
the NPA’s rotten core. NPA prosecutor Glynnis Breytenbach was diligently at
work on several high profile prosecution cases, including one against Richard Mdluli
- the details of which hinged around a letter Mdluli wrote to Zuma where he
offered to use his position as crime intelligence head to assist Zuma in
achieving a second presidential term. Another case on Breytenbach’s docket was the
mineral rights quarrel between the Sishen Iron Ore Company and Imperial Crown
Trading (ICT). ICT is partly owned by the Guptas and Duduzane Zuma – one of the
President’s sons.[xxii]
The trauma Breytenbach
was put through was serious but more so the long term outlook for equality
before the law. Constitutional Law expert Pierre de Vos wrote ‘The acquittal of
prosecutor Glynnis Breytenbach on all 15 charges brought against her by her
superiors at the National Prosecuting Authority (NPA) raises serious questions
about the independence and impartiality of the NPA and its leadership. It will
strengthen the increasingly widely held perception that senior NPA leaders are
appointed because of their political loyalty to the dominant faction inside the
ANC and not because of their personal integrity, independent attitude and
ability to act without fear, favour or prejudice (as required by the
Constitution).’[xxiii]
Next up to bat for the NPA was Mxolisi Sandile Oliver Nxasana, effective 1 October 2013. It appears all
was fine, Nxasana was getting on with the job and then suddenly “a character
who was fit for high office is shown to be flawed. Comrades of decades feign
surprise, condonation becomes condemnation.”[xxiv]
Nxasana had been through a thorough selection phase only to have the ANC and
President’s office turn on him. The debate is ongoing. The opposition Democratic
Alliance says "We believe that Nxasana’s attempts to reinstate charges of
murder, kidnapping and defeating the ends of justice against disgraced crime
intelligence head, Richard Mdluli, have put his job on the line."[xxv]
Why it is good to be a
part of the ANC? This was explained at a gala dinner held in Durban on Friday
11 January 2013, one that raised R21 million for the party. “Support is fine,
we love it. But if you just go beyond that and become a member, you’ll realise
everything of yours will go very well. If you are a businessman business will
thrive. Everything you touch will multiply” said Zuma, quoted in the City Press.
All of the self-made billionaires and millionaires present confirmed.[xxvi]
How far is corruption
going to go? The spider’s web between the ANC’s main political players and big
business’ stand-out personalities only grows thicker. Eskom and water affairs
were long ago lined up for privitisation – allow it to fail a little longer and its processing will be ready
for Zuma and Co’s picking. Mr Ramaphosa is the likely man for the job. It seems
South Africans need not worry about switching off the lights, they’ll only come
on when paid for.
I end with a summary from
P Smith of Africa Confidential, I can’t phrase it better. He calls it ‘No-Fly
Zone For Legal Eagles’, written in 2015:
“The presidency is
working to remove police and prosecutors who refuse to suspend actions against
highly influential people. The decline in independence of South Africa's top
criminal justice institutions is accelerating as President Jacob Zuma redoubles
his efforts to immunise himself and his entourage from prosecution over
corruption. That is the verdict of a growing number of legal experts as more
and more senior police officers and prosecutors are removed. Corrupt business
links with the governing African National Congress and the Presidency are mounting,
so the pressures on prosecutors and investigators to be soft on them multiply.
State officials are increasingly facing administrative suspension if they do
not comply.”
[iii] ‘Institutionalizing Elites: Political Elite Formation and Change’
by Suzanne Francis https://openaccess.leidenuniv.nl/bitstream/handle/1887/18561/ASC-075287668-3104-01.pdf?sequence=2 ‘Even back in those days, 2009, the government was doing extensive
project and promotion work for the people of the Nkandla area specifically –
Zuma’s birthplace’ (p163).
[xiv] ‘South Africa's crime-buster
quits’ … http://news.bbc.co.uk/2/hi/africa/3925955.stm
[xxiv] ‘Control over comrades’ @ http://www.iol.co.za/dailynews/opinion/
