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Dismantling the state (capture) that Zuma built

- Judith February

It will be a lengthy and costly process to find out just how deep the state capture rot is and what the detritus is that former President Zuma has left behind.

For the past couple of weeks South Africa has been riveted by the damning evidence senior public officials who served in the Zuma administration gave before the Zondo commission of inquiry into state capture. The allegations have until now mostly involved former President Zuma’s close associates, the Gupta family. When former deputy Finance Minister Mcebisi Jonas made the startling claim that the Guptas had offered him the position of finance minister in exchange for R60 million, the term ‘state capture’ suddenly found its way into South African political parlance.

Former Public Protector Advocate Thuli Madonsela outlined the orchestrated attempts to capture the state in her 2016 ‘State of Capture’ report into Jonas’s and others’ allegations regarding the influence of the Gupta family on the Cabinet and tender processes. The report detailed instances of the Guptas’ interaction with then Eskom CEO Brian Molefe and others, like former ANC (African National Congress) Member of Parliament Vytjie Mentor, who also blew the whistle on the Guptas.

So there has been much information related to state capture in the public domain. In addition, investigative journalists have delved extensively into the relationship between Zuma, the Guptas and their personal enrichment through South Africa’s state-owned enterprises. Now Jonas and Mentor have both testified about being summoned to the Gupta home where they were offered Cabinet positions in exchange for cash and favours. Former GCIS head Temba Maseko also gave powerful testimony of being asked to divert funds to the Guptas’ ailing newspaper ‘the New Age’.

Of course, these allegations will have to be tested and many have already started criticising the Zondo commission for its drawn-out processes. This is perhaps unfair. It is a given that the work of the commission will be lengthy and often tiresome. That is the nature of commissions of inquiry. Their processes are designed to seek truth, after all, and witnesses as well as those who are impugned have the right to be protected by the law. It will thus be a lengthy and costly process to find out just how deep the rot is and what the detritus is that Zuma has left behind. Despite misgivings in certain quarters, there is power in that these testimonies are being made under oath and in a public forum for the first time. There has been widespread television and print media coverage. That in and of itself is a triumph for our collective ‘right to know’. Nothing can be hidden any longer.

In President Ramaphosa’s ‘new dawn’, he has tried to move swiftly to deal with various institutions that should be upholding the rule of law but have apparently been infected by corruption. Specifically, suspending the head of the South African Revenue Services (Sars) of its commissioner, Tom Moyane, and appointing a new heads of the Hawks in the form of Lt-General Godfrey Lebeya and the agency responsible for our national security, namely the State Security Agency (SSA).

The Zondo commission would do well to subpoena those who have been implicated in the deterioration of the criminal justice system to establish how deep the rot has gone. While there already are inquiries into Sars and the SSA, greater attention has to be given to the impact of state capture of the Hawks, the SAPS and the National Prosecuting Authority, and to ensure that they are cross-examined thoroughly.

The Hawks have shamefully been accused of colluding with the corrupt in both Maseko and Jonas’ testimonies. Jonas outlined specifically how the Hawks tried to quash investigations into the Jonas-Gupta matter. But we also need to know why the SAPS never acted on the vast amount of evidence of corruption during Zuma’s tenure. According to the SAPS annual report for 2016/17, the police only made 19 arrests and secured a single conviction using the Prevention and Combating of Corruption Act which was passed by Parliament specifically to make it easier for law enforcement agencies to investigate and prosecute corruption. Certainly, specific attention would also need to be directed at the former National Director of Public Prosecutions Shaun Abrahams. Answers are needed as to why Abrahams seemed to bend over backwards to avoid the prosecution of Zuma and his associates, thus creating an environment in which the state could be captured.

Daniel Kaufmann and Joel Hellman, writing for the International Monetary Fund, describe state capture as “the efforts of firms to shape the laws, policies and regulations of the state to their own advantage by providing illicit private gains to public officials”. They go on to say that: “Because such firms use their influence to block any policy reforms that might eliminate these advantages, state capture has become not merely a symptom but also a fundamental cause of poor governance. In this view, the captured economy is trapped in a vicious circle in which the policy and institutional reforms necessary to improve governance are undermined by collusion between powerful firms and state officials who reap substantial private gains from the continuation of weak governance.” Interestingly both Kaufman and Hellman have been called to testify before the Zondo commission.

Anne Lugon-Moulin, another expert, goes on to define state capture as follows: “State capture can be further refined by distinguishing between types of institutions subject to capture (Legislative, Executive, Judiciary, regulatory agencies, public works ministries) and the types of actors actively seeking to capture (large private firms, political leaders, high ranking officials, interest groups).”

It all sounds familiar.

But while Ramaphosa clearly is a man for the ‘long game’ and will no doubt have his eye on the work of the commission, there is also public impatience to expedite the commission’s work and then move straight to prosecutions. So, the question that ordinary South Africans are now asking is, "When will be see those responsible for state capture hauled before the courts?" While the work of the Zondo commission will be important for our official history, arguably, most people interested in a prosperous South Africa based on clean government know enough about state capture and the impact on our country.

Surely the inevitable next step would be for prosecutions to take place, where there has been criminality, many have asked? In South Korea, former President Park Guen-Hye has been prosecuted for corruption with relative speed given public opprobrium against her. She has now started serving a 25-year prison term.

Now that the Constitutional Court has allowed Ramaphosa 90 days within which to appoint a new NDPP, selecting an individual of the highest integrity and independence may well be the most important decision of the Ramaphosa presidency. While there seems to be public pressure and haste for the prosecution of those involved in corrupt activity, the reality is that this will take time. The Zondo commission has to be left to fulfil its mandate, then make its recommendations.

Whoever is appointed as the new NDPP will need time to assess whatever evidence there is and decide on prosecutions. Yet another caveat is that the NPA is a broken and divided organisation which will need much fixing if it is going to fulfil its constitutional mandate under a new NDPP. Such an individual will have to rebuild the organisation from within and then also restore the public’s confidence in the NPA by prioritising the prosecutions of all those implicated in state capture.

Similarly, the Hawks, so tainted by capture as an organisation, will require an organisational ‘reboot’ if it is to be effective in fulfilling its investigatory mandate. So, while an unsuitable individual as NDPP will compromise the NPA, it will also irretrievably damage the Ramaphosa presidency and the country. We would, however, do well to temper our urgent expectations of what prosecutions are possible in the short term. As with much of Ramaphosa’s ‘clean-up’ the focus must be on careful evidence-gathering and invoking proper processes. The state that Zuma built can only be dismantled over time. The detritus is such that there can be no quick fixes.

Judith February is based at the Institute for Security Studies and is also a Visiting Fellow at the Wits School of Governance. This article was first published on EWN (Eyewitness news).