Appointment of anti-corruption council a critical step, but it must be given big teeth

The Zondo Commission has been and will be the focus of a decade of discourses on accountability and clean government in South Africa. Just days ago there was some furore regarding the binding nature of the commission’s report, in particular the reported statement by President Cyril Ramaphosa that the report is not binding as it related to the finding that cadre deployment is unlawful and unconstitutional.

That is indeed true, but it would be folly for posterity for the ANC-led government to ignore it as if the commission never existed and the report was a voluminous, worthless document. Although the commission's recommendations are not legally binding in the way that a court judgment would be, the President did commit to the implementation of Zondo’s suggestions and recommendations.

The latest development that must be welcomed as a step in the right direction is the Presidency’s announcement that Ramaphosa has established a National Anti-Corruption Advisory Council (Nacac), aimed at strengthening South Africa’s fight against fraud and corruption and which will “work alongside government to prevent and stamp out wrongdoing”.

In brief, Nacac “will advise the President on matters related to fighting corruption, in line with the National Anti-Corruption Strategy 2020-2030. Among other areas of focus, the council will advise the President on effective implementation of the anti-corruption strategy by government and civil society, including the private sector.”

The jury is still out on whether Nacac’s advice to the government on how to respond to the regulations of the recommendations of the Zondo Commission will be meaningful and impactful to spur the political will to act against corrupt activities in the country.

Caution required

Pardon my scepticism concerning the role of this council and the seemingly parallel process regarding the implementation plan being developed by the so-called interdepartmental team led by the Presidency, which Ramaphosa will reportedly be presenting to Parliament by 22 October 2022.

By the way, Parliament’s spokesperson, Moloto Mothapo, has said we will know of the implementation plan before 31 August 2022, unless the establishment of Nacac is also part of the implementation plan.

The establishment of Nacac notwithstanding, one needs to still be cautious and open-minded in questioning whether or not the recommendations in the Zondo Commission report will go down the drain or be relegated to the dustbin under the watch of the advisory council. Not that one is doubting the depth of these commissioners who were appointed from a list of publicly nominated individuals.

If anything, the council’s collective expertise as it relates to it being an advisory body on issues of corruption and corrupt activities, is interesting.

It is chaired by Professor Firoz Cachalia, who is an adjunct professor of law at Wits, a board member of Corruption Watch and former Gauteng MEC for Economic Development, with Inkosikazi Nomandla Dorothy Mhlauli, recently appointed chairperson of the National House of Traditional Leaders, as the deputy chair.

The council boasts notable individuals: Kavisha Pillay (head of stakeholder relations at Corruption Watch); David Harris Lewis (of the Competition Tribunal and former executive director of Corruption Watch); Nkosana Dolopi (South African Democratic Teachers’ Union deputy general secretary); Barbara Schreiner (advisory committee to the minister of water and sanitation); advocate Nokuzula Gloria Khumalo; Sekoetlane Phamodi (Accountability Lab’s country director for South Africa); and Thandeka Gqubule-Mbeki (lecturer in journalism and media studies at Rhodes University).

In terms of the National Anti-Corruption Strategy 2020-2030, Nacac should consist of between seven and 10 members who are “senior representatives from government, civil society and business”.

“The National Anti-Corruption Advisory Council is the embodiment of our united resolve as a nation to rid all components of our society of all forms of crime and corruption and develop a whole-of-society response to and prevention of this scourge,” Ramaphosa said.

As stated by the Presidency, the new body will advise the government on the critical preventative measures, institutional capabilities and resources required to proactively curb a recurrence of State Capture and prevent fraud and corruption in South Africa.

https://www.dailymaverick.co.za/article/2021-10-20-does-the-country-need-a-new-anti-corruption-body-or-a-new-modus-operandi/

These are monumental responsibilities and one hopes the President will keep an open mind towards the possibility of adding missing expertise to the Nacac complement.  

This is important because, in my view, Nacac’s orientation, structure, mandate and activities should be closely aligned with the Zondo Commission’s recommendations to combat corruption and promote a well-defined trajectory towards the necessary policy and legislative changes that promote good governance.

For instance, one expects the council to advise Ramaphosa on how to best protect whistle-blowers from any form of harm. The commission was a watershed and a high-profile corrupt-practices inquiry, which requires a review of whistle-blowers’ protections in South Africa.

For Nacac to support the development of anti-corruption strategies and action plans, promoting integrity in public service and reviving evident ethical lapses, its composition must be reinforced in the future without necessarily bloating it. In particular, the number of non-partisan members must be boosted to combat potential advice being influenced by allegiance to political parties.

Lesson from Down Under

Similar bodies have been established in other jurisdictions. How these operate in practice and the impact they have is what distinguished them from other showroom-display Cabinet initiatives.

In Australia, the Queensland Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct, known as the Fitzgerald Inquiry after its chairperson, Tony Fitzgerald QC, gives a solid example of what can go wrong with bodies established to implement, or advise on the implementation of, the commission’s recommendations.

The Zondo Commission’s report is largely very clear about a path forward, and several of the recommendations should never be a tall order to create an implementation plan around them, nor should they preoccupy the time of the advisory council to come up with advice to the President.

Further, one hopes that Nacac will also have the resolve to indicate to the government when to defer matters to the criminal justice system and the judiciary as reasonable agencies or institutions to deal with such matters. I would not like to anticipate a situation where the legal position of the council’s advice is a more watered-down, non-binding and non-influential recommendation.

https://www.dailymaverick.co.za/article/2022-07-06-corruption-amnesty-south-africa-must-look-to-non-trial-resolutions/

The announcement of Nacac may have some cheering, and others fearing for a Stalingrad treatment of the implementation of the Zondo Commission’s report on accountability and liability.

But the President remains quietly convincing that what is best for the country will be done, as he has committed to repeatedly in combating corruption, and should thus be given the benefit of the doubt.

The potential implications for the ANC-led government in not taking the Zondo Commission report seriously are dire. However, given the current make-up and party-aligned participation of our parliamentarians, it is understandable that many have already speculated that whatever implementation plan is taken to Parliament will be dead in its tracks insofar as alleged individual perpetrators of corruption are concerned.

https://www.dailymaverick.co.za/article/2022-01-06-future-proofing-sa-we-need-an-independent-anti-corruption-agency-and-a-national-charter-against-graft/

One of the concerns highlighted by the Inclusive Society Institute is whether or not the chosen advisory council members “have a developed understanding of the subject matter they will be dealing with”. The institute says they must have knowledge that “includes the internal workings and systems of public sector organisations, how corruption manifests within such organisations, as well as what is to be learnt from the international literature on corruption in the public sector and the established best practices towards combating corruption”.

It argued that without such knowledge, understanding and experience, “Nacac would be ineffective – as previous anti-corruption initiatives have shown conclusively”. DM