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Judicial commissions an essential check and balance

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When it comes to allegations of state capture, fraud and corruption in the public sector, including organs of state, on an industrial scale, then judicial commissions and public inquiries assume an importance that goes to the very survival of our democracy.

The Zondo Report has merely confirmed that there is a monumental prima facie case for prosecuting those who would eventually be indicted – something which most South Africans have suspected all along, says the writer. Picture: Karen Sandison/African News Agency (ANA)

By Mushtak Parker

JUDICIAL commissions and public inquiries are costly but an essential check and balance of last resort in a vibrant democracy, albeit after-the-fact to uncover a particular situation and where appropriate to seek recourse and potential redress in law for the state, citizen and taxpayer.

The usual checks and balances normally come from government departments, specialist cross-party parliamentary committees, an independent judiciary, an anti-corruption agency, a free press and citizen activism.

When it comes to Allegations of State Capture, Fraud and Corruption in the Public Sector including Organs of State on an industrial scale, then they assume an importance that goes to the very survival of our democracy.

In this respect, South Africa is no exception but at the same time also exceptional.

No exception in that state corruption is a universal phenomenon, irrespective of which system of governance and economic status. Exceptional, because of the sheer scale of alleged state capture during the Jacob Zuma era, estimated at a staggering R250 billion, and yet globally commended for one of the most exhaustive judicial inquiries into state-sanctioned corruption, fraud and abuse of power in modern history.

What started as a formal inquiry investigating alleged state capture in August 2017 with an initial 180-day remit, the Judicial Commission of Inquiry into State Capture led by Chief Justice Raymond Zondo metamorphosised into a four-year investigation once the sheer extent of alleged wrongdoing became apparent with more than 1,438 people – politicians, government officials, business associates and cronies – implicated.

Eight court extensions later of the deadline for reporting the findings; which resulted in 3,171 summonses issued; 330 witnesses giving evidence, 8,655,530 pages of documents processed, at a cost of about R1 billion to the taxpayer, the Zondo Commission finally handed over its final report to President Cyril Ramaphosa last Wednesday.

The two near parallel inquiries in post-war history were the Senate Watergate Hearings in 1973 chaired by Senator Sam Ervin which led to the resignation of President Richard Nixon; and the Iraq War Inquiry led by Sir John Chilcot and set up by then PM Gordon Brown in 2009 to investigate the UK’s role in the invasion of Iraq in March 2003, which took seven years to report.

Judicial and public inquiries have a knack of leaving many questions unanswered and opening new ones.

In his final report, for instance, Justice Zondo made a standout recommendation, in addition to the cornucopia of hundreds of others in the entire process, calling for the appointment of a “special commission of inquiry to examine why the Passenger Rail Agency of South Africa (Prasa) was allowed to slide into almost total ruin, who should be held responsible and who could have benefited most from that unacceptable state of affairs”.

South Africans should be under no illusion that this is not the end of the state capture scandal.

The Zondo Report has merely confirmed that there is a monumental prima facie case for prosecuting those who would eventually be indicted – something which most South Africans have suspected all along.

For President Cyril Ramaphosa, the report could prove awkward especially in the gaps of his testimony related to the State Security Agency and Crime Intelligence, which was under his watch when he was deputy president.

The worst thing that the ANC could do is to close ranks. South Africans are baying for justice, which must not only be done but must be seen to be done.

The way the government handles Justice Zondo’s recommendations, and any future related prosecutions by the National Prosecuting Authority (NPA), will test the integrity of the country’s judicial system. It will take another four months for Ramaphosa’s promised response to the Zondo Report to materialise in October.

Mac Maharaj, ex-minister and Robben Island inmate, speaking to Radio 702 maintains: “The key problem that is coming out from the Zondo Commission is that in our democracy we never created a law that made it illegal to abuse power.”

If there are oversights in the Constitution and the law, relating to abuse of power, conflict of interest and non-transparency in government procurement contracts, the sooner they are remedied, the better.

But they are no excuse for the systemic corruption, fraud and abuse that occurred with impunity and self-entitlement.

According to some ANC stalwarts, corruption and self-enrichment are equally to do with party development and funding, and oft beholden to the legacy of righting the wrongs of apartheid, almost at any cost.

It speaks volumes for the existing system of checks and balances, especially the role of parliamentary scrutiny by the majority ANC MPs.

It also calls for the urgent establishment of an independent Anti-Corruption Commission to investigate and prosecute corruption in the public and private sectors, as such future proofing South Africa’s hard-fought democracy.

Ramaphosa’s coalition partner, Cosatu’s message is spot on. “The success of the State Capture Commission lay in the prosecution of those implicated. We expect the nation’s law enforcement agencies – NPA, SAPS, SIU, Department of Justice – should be able to explain to South Africans how they intend to process the findings and allegations in the Zondo report. We need to know how government departments and SOEs plan to improve their management and governance systems to ensure that industrial-scale looting does not happen again,” urged Cosatu president Zingiswa Losi.

There are important international implications, including for the South African banking system and the country’s anti-money laundering (AML) architecture.

The Commission found evidence of widespread sophisticated money laundering networks facilitating illegal financial flows in and out of the country.

It recommends an urgent review by the Financial Intelligence Centre into the compliance of banks with the AML regulations.

This merely confirmed a damning evaluation issued by the Paris-based G7 intergovernmental agency, the Financial Action Task Force (FATF), of South Africa’s current AML and counter-terrorist financing (CTF) policies, which lacks a “co-ordinated and holistic national AML/CFT framework. Significant ML risks remain largely unaddressed for beneficial owners of legal persons and trusts, cross-border movement of cash, and criminal justice efforts not yet directed towards effectively combating higher risks related to corruption, narcotics, and tax offences”.

The clarion call from all quarters is for the state and its agencies to match the Zondo report by acting equally decisively on the recommendations to ensure that justice is done and that the risk of state capture in the future is reduced if not eliminated.

Whether the report as Ramaphosa maintains, turns out to be “an instrument through which the country can work to ensure that such events are never allowed to happen again,” only time will tell!

* Mushtak Parker is an economist and writer based in London.

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