Given South Africa’s poor record in implementing commission advice, business and civil society need to step in.
South Africa’s Zondo Commission of Inquiry into State Capture, Corruption and Fraud has handed over the first of its three parts report to President Cyril Ramaphosa on January 4. This after almost four years of witness statements and cross-examinations, and R1 billion in taxpayers’ money.
The results confirmed what most South Africans already knew – thanks to excellent investigative journalism – about the unprecedented scale of grand corruption fueled by criminal interaction between the public and private sectors. Associate Chief Justice Raymond Zondo’s findings also vindicated whistleblowers and journalists who uncovered state capture at the expense of their jobs and in the face of threats and the harassment of power players they exposed.
The next step for these brave people and the well-being of the country is to ensure that the enablers are brought to justice, as the Zondo report recommends. But is it likely?
Given South Africa’s failure to implement the recommendations of several previous commissions of inquiry, a lack of optimism about the lengthy Zondo report can be forgiven. Seven committees of investigation over the past decade have resulted in varying degrees of liability or lawsuits. Few of their recommendations have been implemented.
Seven past commissions of inquiry have resulted in varying degrees of responsibility
This challenge is not unique to South Africa. A 2013 to study by Dr. Mike Lauder who reviewed over 30 Boards of Inquiry around the world concluded that few were effective. Whether investigating corruption, political violence, drug trafficking or transitional justice, the record of implementation has always been lacking. The often used Quote attributed to former French Prime Minister Georges Clemenceau, that “when you want to bury a problem, appoint a commission to investigate”, seems relevant.
Reasons for limited action following such investigations could include a lack of power to hold perpetrators accountable, vested interests and narrow mandates. But it’s often weak politics will be by those in power who frustrate these processes. This will prove essential if Zondo’s recommendations are to be implemented.
Ramaphosa should be credited for following through on the commission’s previous recommendations. The removal of former South African Revenue Commissioner Tom Moyane based on the findings of the Nugent report and former senior National Prosecuting Authority (NPA) officials Nomgcobo Jiba and Lawrence Mrwebi on the Mokgoro investigation stands.
But following Zondo’s advice might prove trickier. Ramaphosa should take action against his own African National Congress (ANC) members who were named and humiliated in the report. This would undoubtedly make him unpopular with some party members and strengthen the hand of opposition factions within the ANC.
Ramaphosa should be credited for following through on the commission’s previous recommendations
As president, Ramaphosa has the prerogative to hire and fire his ministers. However, ANC policies imply that the party deployment committee is consulted in these appointments, which may make it difficult for him to remove members.
With the elective ANC conference looming in December, the worst-case scenario for Ramaphosa could see him jeopardize his chances of renewing his term as party (and country) president. But if he fails to act on Zondo’s recommendations, he could lose the public’s trust – which could also result in the defeat of the ruling party in the 2024 elections. The president faces a difficult choice between the party and the country, which in any case will demand sacrifices.
In addition to political will, successful implementation of Zondo’s recommendations also depends on effective detection and prosecution. The Priority Crimes Investigation Branch (the Hawks) is the police entity charged with investigating Zondo Commission cases. the weakening Agencies such as the Hawks and the National Prosecuting Authority (NPA) in the past suggest that bringing cases to court will prove quite a challenge.
While the determination to act is evident in the recent announcement by the NPA and the Hawks of a new task force to launch investigations stemming from the Zondo Commission, their capacity and their capacity constraints remain a major obstacle. Does this mean that the Zondo Commission will join the list of previously disappointing investigations in South Africa and around the world?
The private sector could implement some aspects of the recommendations independently of government
If the task of taking action rests solely on the shoulders of the government, the work of the commission will inevitably have been in vain. This is evident from the poor record of the state in holding perpetrators of high-level corruption accountable in the recent past, the repel of various political actors towards the Zondo report and the ineffectiveness of the forces of order.
The nation’s law enforcement capacity needs to be strengthened, focusing on the Hawks and the NPA. Forging partnerships with the private sector could help. It is encouraging that the business sector has offered to to help the NPA with additional resources to implement the recommendations. The Hawks and NPA could also find funds to recruit experienced and skilled detectives and prosecutors who retired or were forced out of the system during the state capture years.
The private sector could also implement some aspects of the recommendations independently of government. Trade associations and companies could take action against members and employees implicated in the report and hold them accountable for their role in the state capture.
For its part, civil society could help through public awareness campaigns to popularize key findings, maintain pressure for action on government, business and others, and monitor the implementation process. International partners could provide financial support and advice. Creating a single anti-corruption agency, as the Zondo report suggests, for example, would require the expertise of international partners who have successfully used such structures in their countries.
There is no doubt that the implementation of the proposals of the Zondo Commission will be difficult. But while there is little reason to expect significant action from the government or ruling party, other actors must do what they can to make this monumental exercise count.
Failure to do so could prove that Georges Clemenceau’s words are too prescient.
Richard Chelin, Senior Researcher, ENACT Programme, Institute for Security Studies Pretoria and Dr Craig Moffat, Governance, Delivery and Impact Program Manager, Good Governance Africa