State Capture: Ramaphosa sidesteps cadre deployment, offers some existing and some new(ish) solutions

24 Oct 2022

President Cyril Ramaphosa said his administration’s implementation plan on the State Capture commission recommendation was an ‘ethical, moral and institutional departure’ from the days of State Capture. While some steps outlined are indeed under way, including prosecutions and legislative changes, the silence on political pickles such as cadre deployment was resounding.

‘The submission of this response [the court-directed implementation plan] is a firm and clear indication of the primacy of the rule of law and a demonstration of our democratic system at work,” said President Cyril Ramaphosa in a televised national address on Sunday evening, 23 October.

New measures announced include the appointment of boards of state-owned entities (SOEs) by independent panels with appropriate technical skills, and firm rules banning board members and ministers from playing any part in procurement.

Also new is the amendment of the appointment process for the National Prosecuting Authority (NPA) boss in line with the public proceedings that got Shamila Batohi the job in late 2018. And the Investigative Directorate (ID) will become permanent.

However, much of the President’s speech focused on steps already under way, particularly in the prosecution of State Capture-related cases, and legislative reforms such as the Public Procurement Bill that will be before Parliament by March 2023.

Changes to the national anti-corruption architecture began in August this year with the appointment of the national anti-corruption advisory council, including business and civil society, and a Justice review. No timeframes were provided for this “comprehensive proposal on an effective and integrated anti-corruption institutional framework”.

Accepting the State Capture commission recommendation on the State Security Agency (SSA), Ramaphosa raised legislative reform through a general laws amendment bill — including splitting it into domestic and foreign entities — that was meant to have arrived in Parliament already. Delays on this legislation emerged in the mid-year Budget vote debates.

Nothing on cadre deployment?

Tricky issues such as cadre deployment, which the State Capture commission found unconstitutional, did not arise at all. Nor did steps against those still in the executive, despite commission findings and recommendations.

“I am attending to the commission’s recommendations on members of the executive against whom adverse findings were made,” Ramaphosa said.

Other prickly pickles, such as electoral reform to introduce constituencies and also to directly elect the President, were given to Parliament — and society — to further discuss.

A decision on a commission of inquiry into the Passenger Rail Agency of South Africa was held back pending investigations already under way by the Hawks and the Special Investigating Unit.

As always, the devil is in the detail.

ANC responds with partial support

The governing ANC’s special National Executive Committee (NEC) “welcomed and supported” the State Capture commission recommendations on fighting corruption, but not those dealing with oversight, Parliament and electoral systems. This signals not so much change, but a continuation.

“The NEC was of the view that other recommendations, more especially those relating to the functioning of Parliament and electoral matters, were at variance [with] established constitutional provisions and principles, and fell outside the commission’s remit,” the NEC said in a statement from the special meeting held on Thursday, 20 October.

Yet much of the State Capture commission’s attention precisely fell on the quality, or lack, of parliamentary oversight, and an electoral system by which public representatives in the legislatures are beholden to their parties, rather than voters.

Against this, the conundrum for the governing ANC is that ending cadre deployment appointments would be seen as losing control of the levers of state, a firm governing ANC policy. And quality parliamentary oversight stood a good chance of embarrassing under- and non-performing ministers, deployed to Cabinet often for a range of reasons not related to appropriate skill sets, and the deployed department heads.

The ANC NEC’s statement was silent on cadre deployment, even though its July meeting had decided to “review” this policy.

Although Ramaphosa was also silent on cadre deployment, he’s on public record that cadre deployment was “consistent with international trends around the world and ought not to be viewed as inherently improper and unconstitutional”.

That’s the thing about commissions of inquiry: recommendations are just that, recommendations. And it’s up to the President, to whom all commission reports must go, whether or not to implement everything, some parts or nothing, as Ramaphosa pointed out in his Sunday speech.

Criminal prosecutions

Of the commission’s 358 recommendations, Ramaphosa said 202 were for criminal and other prosecutions, 27 for recovery of assets, 15 to other state bodies for disciplinary proceedings, and 11 to professional regulatory bodies for further investigation. Five recommendations proposed constitutional change, 26 legislative changes and 64 required operational or regulatory changes.

It was clear that the implementation plan would make much about the government already taking action, with other action in progress. That 76-page implementation report was a “live document” drafted right up to the last minute.

Read more in Daily Maverick: “Rules committee to decide what’s next for State Capture executive implementation plan, due Saturday”

Departments and agencies contributed as recently as Thursday to the implementation plan. Central to it was always going to be the ID’s nine seminal cases on State Capture, in addition to a swathe of other corruption and fraud cases related to testimony before the commission — from the Vrede Dairy project, for which parliamentary transport committee chairperson Mosebenzi Zwane has now been charged; the Free State asbestos scandal for which, among others, suspended ANC Secretary-General Ace Magashule is standing trial; to Bosasa-related fraud and corruption cases that include the trial of former ANC MP Vincent Smith.

Ramaphosa stayed away from naming names, but proffered the numbers: the ID has enrolled 26 and declared 89 investigations with 165 accused in court, while the Hawks have clinched 4,500 convictions for corruption and other priority crimes since 2018.

Law enforcement agencies have been granted freezing orders worth R12.9-billion, with R2.9-billion recovered and returned to affected entities. The tax collector has gathered R4.8-billion in unpaid taxes as a result of the State Capture commission’s work.

A bit more tricky for Ramaphosa were the recommendations on Parliament, given it is the separate legislative sphere of state. Better liaison for oversight over ministers will be driven by Ramaphosa’s deputy, David DD Mabuza, in his capacity as leader of government business, or the liaison between the executive and Parliament.

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A promise to at least have the National Treasury look at improved financing of Parliament could also be made.

But the State Capture commission report was unstintingly unflattering in Parliament’s quality of oversight and recommended more opposition party MPs as committee chairpersons, an oversight committee for the Presidency, legislation to prevent a parliamentarian from being recalled for bucking the party line, and a review of the electoral system with consideration of directly electing the President and introducing constituency MPs.

https://www.dailymaverick.co.za/article/2022-06-23-parliament-between-the-cracks-of-political-will-and-constitutional-duties-must-do-better/

In its response on Sunday, Parliament said it would “begin a process of scrutinising the details of the plan as well as overseeing, through its oversight instruments, its implementation”.

Its official statement highlighted recommendations on the lack of funding for parliamentary committees, and the need for Parliament to track and monitor executive action, including establishing specialised committees for across-portfolio issues, as well as enhancing Parliament’s role in statutory and constitutional appointments.

No mention was made of oversight standards, or opposition MPs as committee chairpersons beyond Scopa, or a committee for the Presidency, which were all part of the State Capture commission recommendations.

“Parliament is committed to ensuring that it goes through the report with a fine-tooth comb and put in place the necessary mechanisms required to address the deficiencies identified by the commission.”

On Thursday, the National Assembly programming committee was told Ramaphosa’s implementation plan would be referred to the Rules Committee for processing. That’s where all six volumes of the State Capture commission report have been for consideration for at least four months, if not longer, on what to do next.

On Sunday, Ramaphosa put the fight against State Capture out for everyone to do their bit: “I have every confidence that, no matter the challenges, we will walk this path together and we will prevail.”

The proof is in the pudding. DM

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Politics

Nothing on cadre deployment?

ANC responds with partial support

Criminal prosecutions