In 2009 South Africa ranked 55th out of 180 countries on the Transparency international Corruption Perceptions Index
In 2009 South Africa ranked 55th out of 180 countries on the Transparency international Corruption Perceptions Index (CPI) with a CPI of 4.7. The CPI used “data from 13 sources from 10 independent institutions, all measuring the overall extent of corruption in the public and political sectors” (Transparency International, 2009, p. 9). Generally this position and score were worrisome as per in any other country below a 5.0 score as it suggested that more than half the experts and sources perceived corruption to be high in the country. All other scores of corruption and measures of accountability would decline in the following years as will be shown below under discussions of democratic shows.
RULE OF LAW AND THE SOUTH AFRICAN POLICE SERVICE
There have been many varying definitions of rule of law. The world justice project, the organization that provides countries with assessments on their performance in this regard, has often conceded to the difficulty of pinning down a single definition. They have however given some roadmaps towards finding a working definition being that “a simple way of approaching it is in terms of some of the outcomes that the rule of law brings to societies—such as accountability, respect for fundamental rights or access to justice—each of which reflects one aspect of the complex concept of the rule of law (Podgers, 2017). As per the UN, the rule of law is “a principle of (democratic) governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to the laws that are publicly promulgated, equally enforced and independently adjudicated,” (United Nations Secretary General, 2004)
General consensus has been reached on how it is affected by corruption, which is that “when corruption takes the form of misuse of state authority and resources for personal gains, it generally implies a violation of the law of the land” (Husain, 2017).
Although it could suffice to say that all manifestations of corruption have in one way or another been a blow to the rule of law in South Africa, for purposes of containment it is best to choose. This is how the discussion of the South African Police Service (hereon SAPS) as the most corrupt sector in the South African government (Corruption Watch, 2012) comes in.
In 2011 the anti-corruption international watchdog, Transparency International conducted a survey in South Africa that among others showed that 68% of urban South Africans said the police were extremely corrupt while a further 14% called them quite corrupt, (The Economist, 2012). The cause of such a mistrust was undoubtedly the long legacy of corruption that the SAPS had carried over from the apartheid era into the democratic South Africa. The organization had not made any steps towards gaining and keeping the citizens’ trust.
The cause for the rampant corruption in the SAPS stems from the fusion between the police and the politicians which academics have argued reduces the accountability of a force to the citizens, (Brogden, 1998) (Reiner, 2010). It is not farfetched to argue that this resulting unaccountability is exacerbated if the causal fusion is between high ranking politicians and the top brass of the police force as is the case in South Africa.
In 2009, a few months after Jacob Zuma’s ascendance to the presidency, a certain Lt Gen. Richard Mdluli was appointed as the head of the SAPS crime intelligence unit. This followed a “clandestine meeting of 4 of Zuma’s loyal minister- including the minister of police, Nathi Mthethwa and his deputy” (Burger, 2016). This appointment was a clear flouting of protocol including those of “evaluation, vetting and having senior SAPS officials present at the meeting preceding his appointment” (Burger, 2016).
This is just one of many politically motivated appointments in the SAPS. This rot at the top spread down and infected all parts of the machinery to the point of having “rampant and reckless corruption among its rank and file” (Yesufu, 2014, p. 1). The institutionalizing of corruption in the SAPS has led to many scandalous attempts on the rule of law that have manifested themselves in numerous crimes by the top brass all the way to junior officers such as defeating the ends of justice, drug dealing, murder.
In 2013, the then police commissioner General Riah Phiyega was investigated by the Independent Police Investigating Directorate for defeating the ends of justice. She had reportedly tipped off another high ranking official, Lt. General Arno Lamoer on an investigation on him by the crime intelligence unit, for aiding and abetting a known drug lord. The case was investigated and referred to the National Prosecuting Authority (NPA) the director of which declined it for trial (Wicks, 2015). Just recently in 2018, this same Arno Lamoer (now no longer serving) and yet another former top police official Brigadier Govender pleaded guilty to acts of corruption they had committed while in office between 2011 and 2013 that tally to a loss for the tax payers, of over R1.5 million. The case is ongoing with his legal team aiming to avoid a jail sentence (Africa News Agency Reporter, 2018) .
To date, even without Zuma in office and with the new President Cyril Ramaphosa seemingly intent on tackling corruption from all angles, the SAPS remains tightly held by corruption. Small manifestations such as traffic officers demanding bribes from motorists, to huge ones such as others being involved in masterminding the all too common cash in transit heists show that the police service is in dire need of a top down overhaul and redirection. The rule of law, strong as it may be, will only endure so much insult until it completely escapes the South African government as it has many other African countries in the past.
ACCOUNTABILITY, TRANSPARENCY AND NKANDLA
In an online article in 2014, one observer wrote about the South African government to say: “Our government lacks accountability all too often due to incompetence and corruption. A perfect example of government’s lack of transparency is seen through things such as Nkandla. We are hearing of documents being destroyed in the media. Government goes all out to cover up corruption” (Tlhapane, 2014).
In any democracy that claims being more than a façade, the government of the day should make it a point to make the citizens privy to the decisions it makes as well as reasons for its actions or lack thereof. Indeed as Mojalefa Koenane puts it, “holding political elites accountable should not be regarded as hostility towards those held responsible” (Koenane, 2017, p. 1), assuming the latter know what it is to be a democratic government. This principle, vital as it should seem, has seen the worst times this past decade in South Africa than perhaps it has ever seen in the history of the country.
In 2014 the then Public Protector Thuli Madonsela released a report titled “secure in comfort” that showed that the president had been the beneficiary in a series of renovations (officially penned as security upgrades on government papers) to his private homestead in the village of Nkandla. The cost of the renovations was mentioned in the figures of R246 million having been budgeted while only R215 million had been spent at the time the report was released. In essence the office made the conclusion that while indeed some of the work had been properly security upgrades in the home of the president, some were undue personal benefit by the president and his family. The report further recommended that the president pay back some of the money, the exact amount of which would be determined by the National Treasury and the SAPS , (Madonsela, 2014).
A digression from pure political theory into the sphere of morality and sociology brings in the fact that no human is perfect. That being said, it would be somewhat unfair to expect that Presidents be immune from human error. However, in the case of Zuma and the Nkandla scandal, he had committed an error which he had by virtue of taking oath of office, explicitly committed himself to staying clear of. Schedule 2 of the Oaths and Affirmations of the South African constitution reads in part that the president vows to “…devote himself to the wellbeing of the Republic and all its people” (Constitution of the Republic of South Africa, 1996, p. 128). By failing to protect state resources as he did, he had failed the people of South Africa in this regard, as well as violating the Executive Ethics code (Madonsela, 2014).
As if the nature of the Nkandla scandal itself would be enough of a show of lack of accountability, President Zuma went against the order of the Public Protector for him to issue a response within 14 days of the report. He instead took a disgraceful 148 days to do so. In this clear mockery of the principles of accountability, Zuma stated among others that he would not dispute the findings and conclusions of the report but that that did not mean that he accepted them. Furthermore, he completely avoided addressing whether he had reprimanded any of the ministers that had been involved in the project as the Public Protector had recommended. Rightfully described, the reply provided “no accountability for the wanton spending, multiple failures by state departments and ethical violations by the President” (Munusamy, 2014).
As a result of the very public disregard Zuma had for accountability and transparency, the main opposition parties in South Africa filed the matter with the constitutional court to force him to account. The court would rule not only that his actions were unconstitutional but also that he pay back R7.8 million to the government coffers as reimbursements for the renovations that were undue to him as well as take action against the ministers involved in the scandal as per the initial recommendation of the public protector (EFF and Others V Speaker of the National Assembly and Jacob G. Zuma , 2017). True to his character, he sent the ministers some letters that the media got a hold of only to find that they lacked depth, explanation and were merely further insult on democratic accountability. While he took a while, he eventually did pay back the money as per the order.
As a result of the Nkandla debacle, the accountability quality of the South African government is now in question. South Africans are now more unsettled with the running of the country under the ANC that it is safe to say that the party is not sure of victory in the 2019 general elections. Many people are not well versed on the theoretical aspects of democracy but this one principle of accountability and transparency is one that many understand. As a result, many can rightfully identify when it is being trampled on as they did with Jacob Zuma.
INCLUSIVE DEVELOPMENT AND STATE CAPTURE
The debate surrounding the relationship between democracy and development is an old one in academia. While some have denied its existence, some have analyzed it. In bringing in development into this discussion, this project does not aim to take a stance in the debate. Here development is not discussed as a general democratic principle but rather as one which the South African government proclaimed as such for itself and promised its people in the post 1994 democratic society. It is against this backdrop then, that development is shown to have been hampered by state capture and part of the reason why democracy can now be said to be weaker.
In articulating what state capture is, Rasma Karklins says it is “systematic high level political corruption that establishes a hidden political regime at odds with the constitutional purpose of state institutions” (Karklins, 2002, p. 4). This term of state capture has previously been unpopular to African countries although political corruption itself has been the order of the day. In recent years however, it has been gaining prominence first in the South African legislative discourse then to the masses (though here with a few misunderstandings and confusions as would be expected). The ideas that state capture takes away control of the state and its institutions from the people to the private interests wielding the licit or illicit political finances, going against the goal of liberation movements (in Africa) of “political independence and sovereign state under government representing the majority of the previously colonized people” (Electoral Institute for Sustainable Democracy in Africa, 2017, p. 4) are best shown by the South African government and its controversy.
In November 2014 the office of the public prosecutor released a scathing report with explosive findings titled “state of capture.” As a result of the popularity that the topic of state capture had been enjoying prior to the report’s release and also President Zuma’s legal efforts to prevent its publishing, the report was much anticipated. Rightfully, its release acted as “official recognition, by a constitutional body, of several allegations of serious misconduct and abuse of public power by very senior officials” (Marchant, 2016).
At the core of the report were the findings of improper conduct and undue influence exerted by the Gupta family, an Indian family with varied business interests spanning from IT to mining, on the president Jacob Zuma. One of such influences was the allegation of their appointing cabinet members and senior officials to head the country’s state owned enterprises.
While the public was still reeling from the SOC report, In May 2017 South African newspapers ran explosive front stories that showed leaked private emails of some of the Gupta family members. Among others found in the communications was the CV of then minister of mineral resources Mosebenzi Zwane, which had been received by the Guptas a month prior to his appointment. There were lessons for Zwane as the minister, on how to handle media conferences including questions about his relationship with the Guptas. One of the emails was from a board member of the South African Airways, asking for another board membership at Transnet .
There would follow more on the Gupta- Zuma network such as its role in molding one of Zuma’s sons Duduzane, as one of South Africa’s youngest millionaires. What is of interest however, is the backdrop in which this scandalous abuse of state power and resources was happening. South Africa currently stands world number 1 of youth unemployment at 26.7%. Inequality wise, 1% of the population controls 42% of the country’s wealth. Crime is high as ever and Johannesburg still remains the rape capital of the world, (Statistics South Africa, 2017).
As a result of the creation of this shadow state that serves the interests of its selected few, millions of South Africans find themselves hard done by the democratic South Africa. What was the number one goal of the ANC when it came into power became a tedious menial task that would maybe be got to after personal interests were fulfilled. The capturing of the state hampered the social development that democratic South Africa had promised its people it would not rest until it acquired, especially for the black majority.
IS THE LEADERSHIP OF THE COUNTRY TO BLAME?
The fact that president Zuma ascended to office marred by controversy spanning years and left office in the same manner is enough for anyone to conclude that he is indeed responsible for the attacks on democracy in the last decade. When proper academic analysis is done, it leads to the same conclusion and goes on to further show that his responsibility is in two respects: he set bad precedent and he failed to play the parent role bestowed on him by his office.
Zuma had enough of a challenge coming into office carrying baggage of past litigation on corruption and rape. In as much as a leader can have flaws, it is no secret that the more one has, the more undesirable they are in the sense of having to be an example for those they lead. Of course in Africa the need for one to be of certain moral standing to take up political leadership is hardly stressed but nonetheless, Zuma’s track record made him hard to sell as a potential role model.
With the scales set against him as they were, it was a surprise when Zuma continued to set a bad example by headlining corruption scandals that would hit South Africa during his term. The 3 main scandals discussed in this paper all feature Zuma’s direct involvement. The biggest one of state capture is undeniably one that could not have materialized without his involvement and dubious character. In that regard, with the head of government being knee deep in the muddy waters of corruption, it would only follow that those he leads follow suit such as is the case with the SAPS.
Members of Zuma’s cabinet such as then minister of social development Bathabile Dlamini, followed his lead by being central in stories of corruption and other shady dealings. In Dlamini’s case, she was embroiled in a scandal in her ministry concerning billions of social grant money. The ministry had allegedly unlawfully extended the contract of the company responsible for the registration of social grant beneficiaries. True to Yoweri Museveni’s words that Africa’s problem lies in its leadership (Museveni, 1992), South Africa’s main problem for the past decade has been Jacob Zuma and his unethical leadership qualities which set a bad example for those he led.
Failing to Parent
As a result of setting a bad example, Zuma then also failed to play the advisory role needed of him as head of the executive, of reprimanding those who were caught up in corrupt dealings as a deterrent to others. As if not enough, the few characters in his cabinet that showed high moral standing were met with disdain from him, to the extent of being relieved of their duties.
As stated in the discussion on Nkandla, many other Ministers were involved in the overseeing of the project. Resultantly, they were liable in the mismanagement of funds that were the end result. At no point did Zuma, despite claiming that he was ill advised and had never sought out to deceive the tax payer, reprimand the ministers seriously and with conviction; it took a court of law for him to make the most menial attempt at this. One could conclude that this is because this was one scandal where he was directly implicated but even those where he wasn’t, like the above on social grants, he stayed mum. Calls were repeatedly made for him to fire Bathabile Dlamini but he never did.
Speaking on the disdain Zuma had for upright morality, former finance minister Pravin Gordhan makes for an interesting case. Gordhan repeatedly let it be known the details of the Gupta-Zuma relations as well the validity of the state capture claims at a time when Zuma and his supporters in cabinet were rubbishing them. He often times publically rebuked Zuma for corruption and his ANC colleagues for supporting him. Ultimately Zuma fired the minister “after months of strife…allegedly on the strength of an intelligence report compiled for President Zuma which claimed that Gordhan was secretly meeting with people overseas to plan “an overthrow of the state” (The HuffPost, 2017) .
The above is a clear show that indeed Zuma is responsible for the scandalous attacks on democracy that his country has endured in the last decade. He failed to lead by example, failed to reprimand those who went against the interests of the people and also insisted on keeping as far away from him as possible, all those who seemed to have the interests of the country at heart.
HOW THE SOUTH AFRICAN JUDICIARY REMAINED SO EFFICIENT
Having talked of procedural, moral and legal transgressions that have been made by those in the high echelons of power in South Africa, it makes sense that the Judiciary would feature as one part of the machine to analyze. The South African justice system has seen a great number of cases involving in some way or the other, politicians and cases of corruption in their varied forms. Hugh Corder’s assertion that it would be nonsensical to attempt to isolate a judicial system from political reality (Corder, 1989) is given truth by this state of affairs.
It would serve as a great error to not acknowledge and credit for the current (excellent) judicial state, the establishing framework of democratic South Africa’s judiciary. In the dialogue leading up to the 1994 transition to democracy, “there had been agreement among all the parties that an independent judiciary should be strongly protected in the constitutional framework” (Dodek & Sossin, 2010, p. 469). It is the particular banner of independence which was agreed to that to date still works incredibly well to maintain the judiciary’s efficiency despite the just past trying times of Zuma’s presidency.
This refers to the ability of a judge to make a decision without undue influence and interference from internal and external forces (Siyo & Mubangizi, 2015, p. 26). In South Africa there has yet to be any indication that judges are under any control of any external sources. The political awareness of the country’s citizens (although sometimes detrimental) has it that if there were points of contention in this regard; they would have long been voiced.
The best show of the independence enjoyed by the South African judges has to be the constitutional court. Particularly during Zuma’s scandal filled administration, the constitutional court made many rulings against the interests of government, much to the pleasure of law scholars. The Nkandla saga and the state of capture report are just two of many instances where judges acted as they saw right and not to the interests of those with political or economic power. Even the social grants debacle, whilst it was never sat for as a trial, the constitutional court did castigate Bathabile Dlamini for her involvement and Jacob Zuma for his silence on the matter.
Naturally, to say that South African judges enjoy independence does not mean they have not been accused of the contrary (Morei & Tshehla, 2014) academically. Even public opinion wise, there has been controversies around some cases especially those involving corruption and politicians. To proclaim independence is not to suggest that it is absent when some verdicts go against what public opinion concluded as right, in fact it is ever so present when no entity has reason to believe they are in favor with the judges. As much as the South African citizens trust their court system, they can never be assured of an ability to sway judges any one way.
The discussions above were meant to show that democracy in South Africa was under attack from 2009 to 2018 under the unfortunate watch of Jacob Zuma. It would be most erroneous to suggest however, that South Africa is no longer a democratic country as a result. The fact that Zuma is now longer president as a result of the above discussed and his involvement is in fact one of the biggest shows of the presence of democracy in the country. It not only survived the attacks against it, it fought back and knocked out its opponent. The South African judiciary, whilst not perfect, has been doing a great job in guarding the country’s democracy from selfish personal interests that manifest themselves as corrupt tendencies.