President Cyril Ramaphosa appearing before the Commission of Inquiry into State Capture and Corruption. Photo Elmond Jiyane (GCIS)
President Cyril Ramaphosa appearing before the Commission of Inquiry into State Capture and Corruption. Photo Elmond Jiyane (GCIS)

Corruption and the need for a Chapter Nine integrity Commission

By Opinion Time of article published Sep 20, 2021

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OPINION: Unfortunately, until now, Cyril Ramaphosa has failed to take decisive and concerted action in relation to the scourge of endemic corruption, writes George Devenish.

At the end of March last year, President Ramaphosa addressed a frank and stern letter to members of the African National Congress (ANC) concerning the issue of endemic corruption in South Africa, declaring in this regard that the ANC was ‘accused number one’. This letter has provoked heated discourse, both in the public domain and within ANC ranks.

The Covid-19 pandemic with its extended lockdowns, the fraudulent procuring of essential PPEs and related resources to address the pandemic, together with insurrection related to corruption, have precipitated the most serious political and economic crisis since the inception of the democratic era in 1994.

The crisis affects both South Africa and the ANC-led governing alliance.

Unfortunately, until now, Ramaphosa has failed to take decisive and concerted action in relation to the scourge of endemic corruption. He manifestly places the unity of the ANC and its ‘renewal’ which are two manifestly contradictory goals, above the interests of South Africa.

The Imperative Need for an Integrity Commission as a Chapter Nine Institution.

Severe manifestations of endemic corruption, State Capture and theft of state assets in South Africa are criminal violations of the fundamental constitutional and human rights of the people.

The consequences are dire and affect the millions of the poorest in the land most acutely. The extant anti-corruption strategies and mechanisms in SA are currently ineffective or virtually moribund.

The criminal justice administration is not up to its constitutional obligations relating to both the nature and magnitude of corruption in all its nefarious and manifold appearances.

It is, therefore, surprising that besides other important political parties, such as the DA and IFP, the NEC of the ANC has also voiced the urgent need for the establishment of an innovative institution that stands alone, is permanent, specialised, independent and addresses corruption.

The NEC has instructed Cabinet to establish the new body urgently. Cabinet has procrastinated and done nothing.

Most regrettably, South Africa’s Prosecution and Police Services have, to a conspicuous extent, proved to be palpably ineffective as a result, inter alia, of the machinations of the diverse forms of State Capture, and are palpably deficient as far as capacity is concerned in virtually everything they do.

Therefore, very little can realistically be expected from them to energetically counter corruption resourcefully and efficiently.

Providentially, the Constitutional Court, in its meritorious Glenister judgments, furnished binding criteria for the establishment of functional counter-corruption agencies that would be able and capacitated to implement both our international treaty and domestic obligations in relation to corruption.

This esteemed Court has endeavoured, without any practical success, to prevail upon Parliament to effectively take reasonable steps in relation to meaningfully countering corruption.

The highly prejudicial current circumstances in SA urgently require that a best practice reform is immediately necessary in order to strengthen and sustain our country’s fragile culture of human rights. Doing so will enhance confidence in extant governance and will improve economic prospects.

This country has very significant developmental potential, which unfortunately remains tantalisingly unrealised.

The governing ANC, some main opposition parties such as the DA and IFP are favourably disposed to the notion that a new body is essential. Such a body is urgently needed to address corruption with resolute determination and resourcefulness.

It is submitted that such a body should be established as a Chapter Nine institution of the Constitution, as one Supporting Constitutional Democracy, designated as the Integrity Commission.

This will require legislation to amend the Constitution to provide for it to be added to and complement the work of other Chapter Nine institutions like the Public Protector, Auditor-General and the Human Rights Commission.

Support for Accountability Now

A prominent NGO, Accountability Now, which has since 2009 proved to have effected excellent work fighting corruption by its consistent and sound commitment to ‘ensure accountability, responsiveness, and openness’ in government as mandated by the Constitution.

It has, as an admirable initiative, already prepared draft enabling legislation and a constitutional amendment so that the necessary constitutionally compliant procedural steps can be effected.

If acted on and refined in the crucible of parliamentary debate, the drafts will facilitate Parliament’s work in the formation of an Integrity Commission. Its work could rescue our country from the devastating consequences of politically and economically destabilising corruption and the imminent potential that South Africa could become another failed African state.

The consequence of failure would be the demise of constitutional democracy and human rights. For this initiative, Accountability Now deserves and needs strong and persistent public support.

An informed discourse of this subject is of inordinate importance for South Africa and its people. We all have a profound responsibility to ensure that both those who govern and those who are governed are meaningfully engaged in the necessary reform of the criminal justice administration.

Participative constitutional democracy in action can end the malady of corruption before, in the words of the Chief Justice, it ‘graduates into something terminal.’

*George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.

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