When State Capture Becomes State Capture – by Otsile Matlou
By Otsile Matlou; Attorney in private practice
Introduction
The history of the struggle for the liberation of South Africa is a history of brave and ethical leadership. Eminent leaders such as Moshoeshoe, Shaka, Soshangane, Hintsa and Sekhukhune were the early torch- bearers in the struggle for self-determination of Africans. This history predates organised, modern political formations. The strategic outcome of the pursuit of liberty of the African people was the total emancipation of all South Africans.
As South Africa underwent the process of nation state formation at the turn of the 20th century, it became necessary for Africans to organise themselves in accordance with modern political institutions. Although the African National Congress (ANC) has for over 100 years occupied a central position in the struggle for freedom, the primary intent was not for ANC to rule South Africa. It was a struggle for the freedom of South Africa and her people. This statement is pertinent to the analysis on the reaction of ANC to state capture and corruption discussed below.
State capture and corruption raise a set of constitutional, legal and political issues. This article will not deal with the specific legal issues that flow from state capture. These are best left to the law enforcement agencies. The individuals whose names are implicated in relation to state capture have a constitutional right to meet the allegations against them in a court of law and present their case. This article will concentrate on the broad constitutional and political issues that arise in the state capture and corruption discourse currently underway in South Africa.
At the time of writing this article, two commissions of inquiry were busy investigating aspects of state capture and corruption. The first commission is the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State (Zondo Commission). The second commission is the Commission of Inquiry into Tax Administration and Governance by the South African Revenue Service (Nugent Commission).
This article relies on the content of the State of Capture- A Report by the Public Protector published on 14 October 2016 by the Public Protector and various pieces of information that are in the public domain. These include books like Zuma Exposed (Adrian Basson), Enemy of the People (Adriaan Basson and Pieter Du Toit), A Simple Man (Ronnie Kasrils) and The President’s Keepers (Jacques Pauw).
There is no doubt that the period from 2009, when former President Jacob Zuma took office, and January 2018, when he was removed from office, was a tumultuous period in the life of the South African state. This period was characterised by allegations of corruption and state capture. Although allegations of corruption, and instances of corruption, predate the presidency of Zuma, the concept of state capture is largely associated with the Zuma era. Some will argue that the phenomenon of state capture (but not the nomenclature) pre- dates the Zuma era. Even if they may have a point, the fact is that state capture was as perennial as grass during the Zuma era.
This article considers the constitutional framework of South Africa and analyse the meaning, modality and impact of state capture. It also analysis the role of the ANC during state capture and the failure of ethical leadership.
Constitutional Framework
The Constitution of the Republic of South Africa, 1996 (Constitution) is the supreme law of the republic and provides the institutional, legal and administrative framework of the South African state. The preamble of the Constitution states that:
“We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land;
Respect those who have worked to build and develop our country; and
Believe that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to –
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
May God protect our people.
Nkosi Sikelel’ iAfrika. Morena boloka setjhaba sa heso.
God seën Suid-Afrika. God bless South Africa.
Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika.”
The preamble records the painful past and records the urgent work of building a united ad democratic state.
South Africa is a sovereign, unitary and democratic state. The South African state is divided into three separate and distinctive arms, namely the legislative , executive and judicial arms. The legislative authority of the republic is dealt with in chapter 4 of the Constitution, which gives Parliament the national legislative authority and provincial legislatures and local councils legislative authority of provinces and municipalities, respectively.
The executive authority of the republic is dealt with in chapter 5 of the Constitution. Section 83 provides that the president is the Head of State and head of the National Executive. Section 85 provides that the executive authority of the republic vests in the President. I will return to this below.
The judicial authority of the republic is dealt with in chapter 8 of the Constitution. Section 165 provides that the judicial authority of the republic is vested in the courts and that the courts are independent and subject only to the Constitution and other laws. The principle of judicial independence is embraced internationally in established democracies. In the context of South Africa, it is particularly important, given apartheid history of parliamentary supremacy and executive dominance.
This article looks at state capture and corruption during the Zuma era against this broad constitutional framework.
Powers of the President
The powers of the President are dealt with in section 84 of the Constitution. Section 84 does not, by any means, exhaust the powers of the President. It merely adumbrates those powers that Parliament thought necessary to give a direct constitutional articulation. A useful analysis of the powers of the President is contained in the unanimous judgment of the Constitutional Court (CC) in Economic Freedom Fighters v Speaker of the National Assembly and Others, and Democratic Alliance v Speaker of the National Assembly and Others, cases CCT 143/15 and CCT 171/15 (the Nkandla judgment).
What is clear from the Nkandla judgment and simple reading of sections 83, 84 and 85 of the Constitution, is that the President is the Head of State. It therefore stands to reason that anyone who seeks access to state power must become the president or have access to the President. It also stands to reason that anyone who “controls” the President, controls the state.
The allegations and modality of State Capture
In the State Capture Report, the Public Protector details allegations of undue influence by members of the Gupta family. These allegations have been recorded in books mentioned above and in many newspaper articles written on state capture. They have also been detailed in testimonies given at the Zondo Commission and the Nugent Commission. To avoid prolixity, the specific allegations are not repeated in this article.
In simple terms, state capture allegations are that the Gupta family and their associates and friends exercised an unconstitutional, illegal influence on the Head of State and senior leaders of government, state institutions and State Owned Enterprises (SOEs), and may be, even the ANC. It is said that this influence gave the Gupta family and their associates access to state contracts and business opportunities. It also provided immunity from scrutiny by law enforcement agencies.
In return, it is alleged that the Head of State and other senior leaders of government, SOEs and law enforcement agencies received illicit financial and material benefit.
The modality adopted in state capture appears to be as follows; members of the Gupta family, members of Zuma’s family and various leaders and functionaries of the ANC and its affiliates were “captured”. That is, they were lured into a web of nefarious activities by the Gupta family and their associates with a view to accessing state power for selfish, illegal and corrupt purposes. In that milieu, Zuma, as Head of State and of national government, was the primary entry point into accessing state resources. In essence, therefore, the success of state capture required that as many leaders as possible be corrupted so that they can use their access to state power to protect themselves, and therefore their benefactors, from scrutiny and accountability.
Whether Zuma himself participated in corrupt activities, or whether his name was used for corrupt activities is irrelevant in as much as there is plenty of evidence to suggest that, at least, he turned the proverbial blind eye. That, in itself, lubricated the state capture project. The fact that his son is a business associate of the Guptas suggests, on the face of it, that turning a blind eye brought benefit to his family. The allegations are certainly that he actively campaigned for the Guptas to access undue state benefits because they were prepared to help his son.
The worst expression of state capture is the allegations that the Gupta family brazenly approached leaders of the ANC and government to offer Cabinet appointments in exchange for lubricating, effectively, state capture. It is alleged that the Guptas also handpicked individuals for Cabinet appointment. Individuals such as Mosebenzi Zwane and Des Van Rooyen are said to be beneficiaries of this.
Section 91(2) of the Constitution provides that the President appoints the Deputy President and ministers, assigns their powers and functions, and may dismiss them. Cabinet is the highest executive authority in the Republic and only the President has the power to appoint its members. The exercise of this power cannot be reduced to mere announcement of names by the person of the President. Properly construed, the exercise of this power requires the President to apply his or her mind to the national interest, the challenges facing the nation at any particular time, the policies of government, the skills and experience of individuals available for appointment and the president must appoint only those individuals whom the President believes will advance the national interest.
It stands to reason, therefore, that the formal appointment of ministers by the President, in the pursuit of state capture, is a fundamental dereliction of a constitutional duty. All the allegations that the Guptas either influenced or controlled cabinet appointments and even offered ministerial positions in exchange for money lend credence to the thesis of state capture. The testimony of Mcebisi Jonas, Vytjie Mentor and Themba Maseko, to name but a few, is well known and is very troubling, to say the least.
On proper construction state capture can be defined as the practice of private individuals effectively controlling constitutional institutions of the state, principally the presidency and SOEs for nefarious reasons and illicit financial gain.
The Response and Attitude of Zuma
Zuma has a constitutional right to answer allegations of state capture in an appropriate tribunal. Insofar as the political aspects of state capture are concerned, Zuma has chosen to make public statements. For purposes of this article, the statement that Zuma made at a recent gathering of the South African Students Congress (“SASCO”) at the Walter Sisulu University in the Eastern Cape is apposite. Zuma is reported to have said that state capture does not exist and that it is simply a “politically decorated” phrase. He said that the judiciary, the legislature and the executive collectively constitute the State and that since these were not “captured”, state capture does not exist.
Zuma’s views on state capture are unrealistic. The allegations are that he, as Head of State, some government departments, SOE, state agencies and political leaders have been captured. It may be so that the phrase state capture is a term of art coined to express the nefarious activities of some state leaders, including the Head of the State and does not connote that the entire state, the three arms thereof, have been captured. The issues that arise from the allegations of state capture are too serious to dismiss merely on account of semantic nit-picking. The substance of the allegations are that Zuma has breached his constitutional duties and that he, together with other leaders, allowed their integrity to be compromised for personal gain, against the national interest. It can hardly be satisfactory for Zuma to point out, for instance, that the Chief Justice has not been captured.
The constitutional reality is that Zuma was the Head of the State and President of the Republic when state capture was underway, and that he did not act against corrupt individuals. He is, after all, alleged to have been captured. The other reality is that Zuma himself established the Zondo Commission which is currently investigating state capture. Having done so, it is rather expedient of him to dismiss state capture on semantic and technical grounds as a ‘political decoration’.
Zuma’s views on state capture are also troublesome from a political point of view. They are not consistent with the culture of the ANC, a culture of accountable leadership. It is apposite to remember that the ANC has a tradition of criticism and self- criticism which enjoins leaders to always look themselves in the mirror, as it were. Zuma’s attitude is simply to dismiss state capture instead of asking himself what his own contribution and conduct was that led to the perception, if not the reality, of state capture.
The role of the ANC
South Africa follows a political system that can loosely be referred to as a constitutional multi- party democratic system. In terms of this system, individuals vote for political parties into Parliament. The members of Parliament, in turn, elect a president from amongst its members. In terms of ANC congress resolutions, the president of the ANC becomes the ANC’s presidential candidate for purposes of national elections. Essentially, therefore, the people who determine the next president of the Republic are members of the political parties in South Africa.
As president of the ANC, Zuma became the national president following the 2009 and 2014 elections. That gave him the power of controlling the national executive. As president, Zuma exercised the same constitutional powers that Mandela, Mbeki and Motlanthe exercised qua president. Those powers are as such because architects of the Constitution contemplated that only ethical, principled, disciplined and progressive leaders will ascend to high office. Accordingly, those powers in the Constitution are susceptible to abuse by unscrupulous and unethical leaders. The CC in the Nkandla judgment found Zuma to have behaved unconstitutionally.
Given the history of the ANC, the hostile historical and current opportunistic forces against it, and its incumbency as the ruling party, the ANC is fighting a daily battle against those who oppose the realisation of a free, democratic, equal and prosperous society. The ANC is also fighting for dominance of the political terrain against opposition parties. As a ruling party, the ANC is at the centre of the political discourse and cannot avoid criticism each time one of its leaders engages in unscrupulous conduct. In that context, it is inevitable that the ANC must defend the gains of democracy and itself.
There is a distinction to be drawn between the ANC defending the national democratic revolution and the gains of democracy, on the one hand, and closing rank to protect ANC leaders, however unsavoury they may be, on the other hand. There is no political, constitutional or moral justification for the ANC to protect leaders who are engaged in brazen acts of ill- repute. Each time the ANC does this, in the name of fighting against counter- revolutionary forces, the ANC unwittingly ends up shielding dodgy characters.
This is regrettable indeed, especially if it comes at the expense of the good reputation of the ANC and undermines the work of its stalwarts, including Oliver Tambo, whose uprightness resulted in the ANC being accepted as the legitimate political and moral leader of society.
Under Zuma, the membership and leadership of the ANC seemed tolerant of nefarious allegations and conduct. The ANC closed rank behind Zuma’s leadership, despite the evident erosion of the moral authority that the ANC hitherto enjoyed. Even the loss of electoral support did not deter the ANC. The constitutional principle of “innocent until proven guilty” became the standard by which ANC leaders are chosen. In other words, and despite the terrible allegations that undermine and prevent leaders from discharging their duty of service to the people, for as long as a court of law has not found an ANC leader guilty, such a person was seen as fit to lead our people. Innocent until proven guilty is not the same as innocent.
The in- principle and difficult question is why did the ANC allow all of this? What happened to the ethical leadership of the ANC that would never allow individuals to hijack the ANC for illicit gain? What happened to the mighty ANC that took on the apartheid state and brought it down on its knees? Why was the leadership of the ANC, the leaders of our people, the ethical leaders, quiet when the Guptas were bringing our economy on its knees? Why did no one pay attention when state institutions were weakened to lubricate State Capture?
Sipho Pityana charged “ziyemk’ inkomo magwala ndini” at the funeral of Makhenkensi Stofile. Until then, by and large, the ANC was quiet about the unethical leadership in its ranks. Its leaders were mum, including many who served under Zuma. It is ironic that the struggle for freedom in South Africa pitted the stone wielding young black activists against heavily armed security police and soldiers and yet the youth never feared the duel. This was so even when their lives were at stake, as was often the case. South Africans were willing to confront the “mellow- yellow” and casper (and gun- wielding soldiers) with courage and a moral conviction of victory of good over evil during apartheid. Under conditions of peace and freedom, when the ANC is the ruling party, why did the activists and leaders of the ANC keep quite when the ANC was being weakened and destroyed for personal gain?
It would be simplistic to say patronage was at the heart of the deafening silence. Clearly patronage played a huge role, and continues to do so today. I am suggesting that, in addition to patronage, the arrogance of incumbency, the thirst for ascendency to higher office and the delusional defence of the ANC (and not the defence of our freedom) played a key role in the silence that enabled state capture to succeed.
It is apposite to remember that the struggle against apartheid was never a struggle for the rule of the ANC. It was a struggle for the liberation of South Africans in general and blacks in particular. Yet, when the ANC closed rank behind Zuma and was silent when state capture was percolating throughout the administration, at face value, it (ANC) was on the wrong side of moral uprightness and principle. The ANC chose Zuma instead of the people. When the CC held that Zuma violated his constitutional duties, and therefore, the Constitution itself, the ANC of old would have asked him to step down. Yet, he survived that and continued to be the Head of State.
The ANC will, no doubt, advance very sophisticated reasons for holding the position that the ANC held, for so long, during the Zuma years. Those reasons notwithstanding, the reality is that the success of state capture and corruption during the Zuma years was lubricated by the failure of ethical leadership in the ANC.
Abuse of a Constitutional Protection
One of the interesting developments during the Zuma years was the notion that whatever the allegations of corruption against an ANC leader, it was politically and morally acceptable for the ANC to deploy leaders of ill- repute simply because such leaders must, like all of us, be seen to be innocent until proven guilty. This was, in my view, one of the worst mistakes that the ANC made. It is so that everyone, including ANC leaders, must be afforded the constitutional protection against false accusation and the like. It is also true that each accused deserves their day in court. Yet, to conflate the constitutional protection of remaining innocent until proven guilty with suitability to lead the people is a cardinal mistake. No ANC leader, however eminent, is entitled to assume a position of leadership in the ANC, government or the state.
The ANC’s “Through the Eye of the Needle” states that:
“A leader should lead by example. He should be above reproach in his political and social conduct – as defined by our revolutionary morality. Through force of example, he should act as a role model to ANC members and non-members alike. Leading a life that reflects commitment to the strategic goals of the NDR includes not only being free of corrupt practices; it also means actively fighting against corruption.”
It is not controversial to say that Zuma did not meet this test. It is equally not controversial to suggest that many of those whom he surrounded himself with, including leaders of the ANC and government, failed to meet this standard of leadership.
To say that someone is innocent because the court is yet to pronounce on their guilt or innocence means that the legal process must be allowed to go ahead. Yet, when it comes to Zuma, it would seem that it is okay to fight to avoid ventilating the allegations in court. To have a president who spends nearly two terms fighting to avoid going to court, in a country that desperately needs a turnaround plan to grow the economy and respond to the needs of the people is repugnant to what the ANC stands for.
To hide behind the presumption of innocence and to end in high office because of a lack of a guilty finding is an abuse of the constitutional protection of innocence until proven guilty.
Lessons
The ANC has lost ground over the last 9 years. The reasons for this are manifold and are beyond the scope of this article. What is clear, however, is that as a result of state capture, which is broadly accepted in society as a political and constitutional reality, the ANC’s ability to lead the people has taken strain. Although it is easy to diagnose the pitfalls of yesterday, it is more instructive to draw lessons for tomorrow.
The Constitution was drafted on the assumption that the leadership that is elected to preside over the state will always be ethical, disciplined, selfless and dedicated. Accordingly, from this perspective, there is nothing wrong with the Constitution.
Given what is known about state capture, and what is still to transpire, it is clear that the ANC cannot afford to continue on the path of apathetic support to a leadership of ill- repute. It is clear that the ANC must be careful in its selection and election of leaders. After all, it is the leaders that the ANC elects who will become the national leaders, for as long as the people vote for the ANC.
The Chinese system of leadership, based on the teachings of the ancient scholar, Confucius (the confucian philosophy and tradition) which is based on the principles of ethical leadership, meritocracy, proven ability and a deep understanding of social, economic and political issues of the country, seems like something the ANC should study in earnest if it is to arrest the continued election (and therefore deployment) of unethical leadership.
State capture is an aberration in the impressive century- old track record of the ANC. It reduces the unparalleled track record of a noble struggle by Africa’s glorious and oldest liberation movement into a mockery occasioned by self- interest.
The ANC needs to re-invest in the development of its membership, in the political education in its ranks, and through that, in society. The ANC must dust the ethos of Luthuli, Tambo, Mandela and others and infuse it in its post- democratic DNA. If it fails to do that, then the Constitution will continue to be violated and its powers misused.
The people of South Africa deserve better.
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Otsile Matlou is an attorney in private practice & writes in his personal capacity.
Email address: omatlou@gmail.co.za
Cell No. 0836753516
