Nkosana Sibuyi

Posted by Nkosana Sibuyi: 09 April 2011

South Africans tend to embrace social transformation, victory and the epoch making ingenuities. The ushering in of a democratic epoch in 1994 and the adoption of the constitution in 1996 have affirmed the correctness of constitutional democracy. For all intents and purposes, even those who celebrate mediocrity became alive to the objective reality of a society at change. Change, in and of itself, with all things considered, has the propensity to create a better society. It also can create a society pregnant with ambivalence. Change if not managed with a heightened sense of maturity and single-mindedness, could create somnambulist creatures to the detriment of society at large. Change could lead to the emergence of both problems and sustainable solutions for the country, region, continent and the world. Change is necessary but not sufficient to construct a society needed in a rapidly evolving world polity.

Chinua Achebe, in his tome, The Trouble with Nigeria, raises genuine concerns about the failure of leadership. Achebe bemoans the absence of responsibility, integrity, humility and accountability that constitute the hallmarks of leadership. In this book, he makes bold to say “we are all living witnesses to the failure of helpless integrity to solve the problem of rampant corruption which threatens now to paralyse this country in every sinew and every limb.”

The essay on the Trouble with Nigeria was one of the sequels to Achebe’s A Man of the People, a book which depicts the extent to which corruption threatens both the social and moral fibre of the society. The distress and misery expressed by Achebe is not only confined to Nigeria. It is an embodiment of a cancer that many countries, including South Africa must be cured of. It is of course, gross impertinence to compare the extent of corruption in different countries without an appreciation and recognition of the decisive forward steps taken to reverse it in this age-defining discourse.

In a South African context, 1994 was markedly an unfolding story of endurance, dynamism, supremacy, diligence and expectation. Given the dynamism of change, corruption has also been part of the DNA in the South African polity. An empirical study and honest analysis of the arms deal, travelgate scandal, oilgate, the new police headquarters and the attendant Public Protector’s report all points to the tumorous nature of corruption. The outcome and findings of such a study and analysis may point towards the over used cliché: the devil is in the detail and the angels reside in the generalities. The country has been and continues to parrot its pursuit to box above its weight amongst the nations of the world. The country has an aspiration to take this place onto a new orbit thus refusing to be condemned to the netherworld.

To achieve this cherished goal, it is significant to admit that the triumphalist nature of the transformation discourse of post-Polokwane politics have their limits. The Directorate of Special Operations (DSO) affectionately known as the Scorpions, was accordingly disbanded a year after the 52nd ANC National Conference resolution/s. The de-establishment of the DSO and its replacement by the Directorate of Priority Crime Investigation (DPCI) known as the Hawks has evoked public interest and gained currency in the political, social, international and national discourse owing to the centrality of the fight against organised crime and corruption.

The Kampepe Commission Report as signed on 3 February 2006 recommended that the DSO should continue to be located within the NPA but transfer oversight and responsibility to the Minister of Safety and Security and the need to address unhealthy relationship between SAPS and DSO. Subsequently, Cabinet endorsed the National Security Council’s decision to accept the recommendations of the Kampepe Commission Report. The dissolution goes against the above principle.

In essence, it became patently clear that the genuine concerns raised by Achebe about the failure of leadership and cancerous nature of corruption in Nigeria have always held South Africa to hostage to political potentates. It could as well be argued that those who pushed for the disbandment of Scorpions lacked the cerebral nous and dexterity required of a ruling party. An additional argument made to the effect that the Polokwane Resolution to disband the DSO sought to shield some high ranking ANC members from prosecution cannot be dismissed capriciously and indiscriminately. President Jacob Zuma signed into law the on 27 January 2009 the impugned laws to disband the DSO and establish the Directorate of Priority Crime Investigation (DPCI).

A year earlier in 2008, Mr Hugh Glenister took it upon himself to fight tooth and nail to halt the legislation intended to disband the Scorpions. The path taken by Mr Glenister and the judgment of the Constitutional Court exposed the constitutional flaws inherent in the establishment of the DPCI. Mr Glenister submitted that it is vexatious, unfair, irrational and undermines the independence of the NPA in the fight against organised crime and corruption. None can gainsay the objective reality that corruption is a malignance that must be uprooted from the face of a democratic and normal society. In addition, the African Union Convention contends that “corruption undermines accountability and transparency in the management of public affairs as well as socio-economic development on the continent”

In a similar vein, the Helen Suzman Foundation as the amicus curiae maintained that the Hawks is not independent and that this case raised matters of fundamental constitutional importance in that the establishment of the Directorate for Priority Crime Investigation unjustifiably infringed a variety of basic human rights. These contentions are in sync with international law and obligation to establish an independent anti-corruption unit in accordance with the United Nations Convention Against Corruption and the SADC Protocol Against Corruption signed by the Heads of State of all 14 SADC member states on 14 August 2001. All of these international and regional agreements on combating corruption are clear, unequivocal and bind South Africa’s constitutional democracy, domestic legal statutes and the architecture of the Constitution.

Practically, it could be argued that the policy guidelines determined by the Ministerial Committee comprising of Ministers of Home Affairs, Finance, Police, Intelligence and Justice are relevant. However, since this is a political body, possibilities and temptations of undue influence and interference that may undermine the effectiveness of the DPCI must be avoided. The Constitutional Court point out that the DPCI is not, in itself, a dedicated anti-corruption unit. Flowing from this, the central question that needs to be asked is: In what way can the Ministerial Committee handle any investigation of organised crime and corruption against one of the members of the committee?

The Constitutional Court ruled that “Chapter 6A of the South African Police Act 68 of 1995 in inconsistent with Constitution and invalid to the extent that it fails to secure an adequate degree of independence for the Directorate of Priority Crime Investigation.” Furthermore, the Court ordered that “the declaration of constitutional invalidity is suspended for 18 months in order to give parliament the opportunity to remedy the defect.”

This judgment is a kaleidoscope of a society in the process of social change and transformation. It is, without any doubt, a measure of greatness and determination teaches us that laws that are unconstitutional can create tensions around the separation of powers. Another lesson to be learnt from this court case is that the anti-corruption unit should not be accountable to the officeholders or political figures as it could undermine the legitimacy of the law. The meaning and significance of the judgement reminds us that the DSO, given its efficacy and effectiveness should not have been spewed out like sputum.

Alan Paton’s book, Cry, The Beloved Country, though approaching the racial evils and tension confronting the country remains relevant today as it was in in 1948. The narrative remains profound in a democratic and evolving society. The fundamental question remains: what about our destiny and future as a country?

Kofi Annan, the former Secretary-General of the United Nations marked “corruption is an insidious plague that has a wide range of corrosive effects on societies. Corruption is a key element in economic underperformance and a major obstacle to poverty alleviation and development. The United Nations Convention Against Corruption will reaffirm the importance of core values such as honesty, respect for the rule of law, accountability and transparency in promoting development and making the world a better place for all.”

This cherished phantasmagoria must be realised in the collective interest of the country. Once we do, all will have confidence in the future. That is the value of constitutional democracy. As Ben Okri said in his poem, Is humanity exhausted?, we know that history is all there, to be made in the future. Change is necessary but not sufficient to construct a society needed in a rapidly evolving world polity. It must appreciate the relevance, quality and appropriateness of triumphalism, transformation and their limits. The constitutional court has affirmed our confidence in the future.