“There are two worlds, the one in which people are convinced they live, and the one that is considerably more dramatic, the one that is real”

Saturday, March 7, 2015

Not the Party It Used to Be: The ANC’s Stranglehold on Justice

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/