Lasting Solutions to Corruption Lie in Effective and Accountable Institutions

“Jacob Zuma testifies at the Zondo Commission”, Wikimedia Commons, Creative Commons 3.0

When it comes to assessing the legacy of the Zondo Commission in South Africa, what might success look like?

In last week’s post for African Law Matters, I questioned the wisdom of appointing a sitting judge to chair a public inquiry into state capture and corruption in South Africa. While securing the independence of the commission’s work, it drew the now Chief Justice of South Africa, Raymond Zondo, into a political tug-of-war that may yet still affect whether the Commission’s findings and recommendations find traction with the government. Looking ahead, what might success look like for the Commission?

The Need For Lasting Solutions to the Epidemic of Corruption

It is human nature to assess the Zondo Commission’s success against whether or not it got the “bad guys”, or perpetrators, into orange overalls. While it is important that prosecutions follow from the findings of the Commission, measuring its impact should not be reduced to counting the beans of those charged, convicted and imprisoned.

Rather, success is better determined from a systematic assessment of the testimonies and evidence led at the inquiry and if the Commission’s recommendations lend themselves to implementation and lasting effect. These recommendations should not be knee-jerk reactions to problems, but be designed to bring about long-term solutions to the epidemic of corruption in South Africa.

In South Africa, the success of the government’s efforts in fighting corruption will depend on what will be done – without political deflections or dilatory tactics – to address underlying challenges. This includes the weakened public service and the State’s inability to meet the increasing expectations from citizens of the quality of government services.

“South Africa has become highly skilled at kicking the can down the road when it comes to corrupt activities by those entrusted with power.”

The Commission’s report should be a reminder to the South African government of the commitments by African Union members through the African Charter on Values and Principles of Public Service and Administration which was adopted in Addis Ababa, Ethiopia on 31 January 2011 and entered into force on 23 July 2016. The members, including South Africa, made a commitment to clean public administration. In particular, the Charter took cognisance of “the mandate of the Public Service and Administration to protect the fundamental values of public service and promote an administrative culture based on respect for the rights of the user.”

The Zondo Commission’s outcomes should be leveraged as the springboard for systemic reforms that are needed to secure good public administration with minimal corrupt practices. Imagine waking up to a public service that is better managed, accountable, more efficient and cost-effective – working towards improving the lives of all South Africans. The potential for strong public administration to steer the country towards good governance and improved national economic performance should be embraced in implementing the Commission’s reports. 

The Need For Effective Laws and Institutions 

South Africa has become highly skilled at kicking the can down the road when it comes to corrupt activities by those entrusted with power. Many political scandals and conduct of alleged criminality are sent the Public Protector’s way or the way of commissions of inquiry.

An impression is created that there is no appropriate legislative framework to deal with these issues. The opposite is true. We have a Constitution which demands accountable and transparent government, the Executive Members Ethics Act 1998 and Executive Ethics Code which set high standards for conduct in public office, and a suite of anti-graft statutes including the Public Finance Management Act 1999, the Prevention and Combating of Corrupt Activities Act 2004 (PCCA) and the Prevention of Organised Crime Act 1998 (POCA).

Section 34 of the PCCA, for example, places a duty on defined persons in positions of authority to report certain corruption offences, and makes a failure to report knowledge or reasonable suspicion of these activities an offence. Many of the witnesses at the Zondo Commission made it publicly known that they knew of, or suspected, alleged corruption. Having failed to report these timeously, they have made themselves complicit pursuant to PCCA.

The point made here is that South Africa is a country that over-legislates but seldom acts in accordance with the relevant legislative framework. In fact, the Commission in part 1 of its report noted that our office bearers and other state functionaries are overwhelmed by the complexity of the regulatory environment for procurement, making them non-compliant and ineffective: “The sheer number of the Acts and the Regulations which address procurement issues makes it very difficult for conscientious officials to get a clear understanding of what is required from them” (para 528).

The Need for a Renewed Commitment to Accountability and the Rule of Law

Finally, it’s worth recalling that the Public Protector’s “State of Capture” report of 2016 started with the following excerpt from the unanimous judgment of the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others [2016] ZACC 11:

“One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal‚ we adopted accountability‚ the rule of law and the supremacy of the Constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism‚ accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck.” (para 1)

This makes clear that corruption is at odds with our constitutional commitment to accountable government and the rule of law. Thus, ultimately, the success of South Africa’s anti-corruption efforts will not only require better organised, better resourced and more effective state institutions, but also a renewed commitment by those entrusted with political power to these foundational constitutional values.