Bold criminal justice reforms are needed to uncapture SA

First published by ISS Today

Testimony before various commissions of inquiry has provided South Africans with a sense of the massive scale of corrupt practices that occurred in government and the private sector under Jacob Zuma’s presidency. However, few are aware of the cost that the State Capture project has had on their public safety.

From when State Capture was well under way in 2011/12 and at the end of 2017/18, the murder rate has soared by 19%, resulting in an additional 4,782 deaths than was the case six years earlier. Moreover, armed robberies increased by 38%, resulting in 37,595 more attacks last year than in 2011/12. The deterioration of the criminal justice system during this period certainly contributed to this situation.

The State Capture project started early on with an attack on the independence and capacity of South Africa’s criminal justice agencies. The only way the theft of hundreds of billions of rand of funds meant for the public could occur was if those involved could be sure they wouldn’t be investigated or prosecuted.

Before Zuma took office, his supporters ensured that the highly effective anti-corruption agency the Directorate of Special Operations (the Scorpions) was shut down. Once he assumed the presidency, Zuma actively used his authority to appoint to key leadership positions people whose lack of integrity and ability led to the deterioration of the criminal justice system.

The South African Police Service (SAPS) was severely damaged by Zuma loyalist appointees such as recently convicted crime intelligence head Richard Mdluli and former disgraced SAPS national commissioner Riah Phiyega.

Similarly, Lieutenant-General Berning Ntlemeza caused massive damage to the Directorate for Priority Crime Investigation (the Hawks), and former National Directors of Public Prosecutions advocates Menzi Simelane, Nomgcobo Jiba (acting) and Shaun Abrahams played no small part in the deterioration of the performance of and public trust in the National Prosecuting Authority (NPA).

The Institute for Security Studies partnered with Corruption Watch to provide the Judicial Commission of Inquiry into Allegations of State Capture, chaired by Judge Raymond Zondo, with details of how organisations like the SAPS, Hawks and NPA were manipulated for political and financial gain.

As the capacity to investigate and prosecute complex commercial crimes and corruption was slashed, the looting of state resources soared. Unfortunately, so did serious violent and organised crimes that have a direct impact on the daily safety of the public.

Our submission exposed structural and legal weaknesses in the criminal justice system that enabled it to become severely compromised in the interest of State Capture. A key shortcoming is the substantial authority given to the president to unilaterally directly appoint the police and prosecuting service heads, while influencing the appointment of those of the Hawks and Independent Police Investigative Directorate.

Zuma exploited these flaws to appoint compromised people to powerful positions, arguably motivated by maintaining control of the African National Congress and protecting his loyalist cabal enriching itself at the expense of South Africans.

Our analysis led to a series of robust recommendations that aim to drive renewal and reform in the police, prosecuting authorities, crime intelligence and police oversight agencies. For example, to recover from State Capture, all those who occupied or were promoted to senior management positions during this time should be independently assessed in terms of their integrity and performance. Those appointed or promoted without due process and oversight should be prioritised.

Only once compromised individuals are replaced with people of exceptional integrity and expertise will criminal justice agencies be able to deliver on the rule of law and their values of accountability, fairness and impartiality.

We also recommended that government produce an annual report detailing progress in the investigation and prosecution of all corruption cases, with an update on all major cases. South Africans can then assess the response by criminal justice agencies to corruption. Agencies should also report on the progress of investigations into allegations and disciplinary matters against senior managers.

New legislative provisions are recommended to ensure greater transparency in relationships between the executive and senior leadership of the criminal justice system.

Already under President Cyril Ramaphosa there has been some progress. These green shoots of criminal justice reform must be nurtured. In 2018, Ramaphosa set up a panel to advise him on the appointment of the new National Director of Public Prosecutions, leading to that of committed reformist Shamila Batohi.

We must continue to strengthen legislative mechanisms to ensure the best possible candidates are considered for appointment to the most important criminal justice roles. This should include a vetting process to ensure unsuitable candidates don’t even make the short list presented to the president.

We make further recommendations about eligibility for political office. In the past, people facing well-founded allegations of serious wrongdoing have been elevated to positions where they were able to subvert the rule of law. Political parties should change their codes of conduct to ensure that individuals facing such accusations are regarded as unsuitable for political office until they are formally cleared.

Zuma and his State Capture allies kept senior people in acting roles, creating uncertainty of tenure which enabled their manipulation for political or personal gain. We propose a six-month limit on acting appointments for leaders of agencies such as the SAPS and NPA.

The anti-corruption investigation and prosecution capacities of criminal justice agencies should be strengthened, and a review should be conducted of the SAPS crime intelligence division to enhance its performance, transparency and accountability.

State Capture was designed for personal enrichment and to protect the Zuma faction while targeting its enemies, but had the severe side effects of making all South Africans less safe and setting the country’s development back 10 years.

SA won’t get back on track until criminal justice agencies are demonstrably professionalised and independent, and able to investigate, arrest and prosecute those who undermine the high potential of the nation.

We have identified the systemic weaknesses and recommended new safeguards. Progress will require great political will and dexterity, but to stall or fail carries far greater risks for the future of South Africa. DM

Gareth Newham is Head, Justice and Violence Prevention Programme, ISS Pretoria