Commissions of public inquiry
As a standalone innovation, the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State in South Africa — otherwise known as the Zondo Commission — is a clear model for how countries can investigate allegations of capture. As an inquisitorial body, but one allowing for public participation and civil society input, a commission of public inquiry is a rare opportunity for the State to see inside itself. The South Africa case is not alone.
According to theRiskMonitor Foundation,“The ‘Public Enquiry’ procedure is an official review of events or actions ordered by a government body. It is not present in Bulgaria, but exists in many common law countries, such as the UK, Ireland, Australia and Canada. A Public Inquiry accepts evidence and conducts its hearings in a public forum. Interested members of the public and organizations may not only make written evidential submissions, but also listen to oral evidence given by other parties. The conclusions of the inquiry are delivered in the form of a written report, given first to the government, and soon after published to the public. The report will generally make recommendations to improve the quality of government or management of public organizations in the future. In the Bulgarian case, such a new type of extended parliamentary enquiry could inform the public, legislators, experts, policy makers how to prevent cases of high importance, large scale and significant public expenditure.”
Zondo Commission recommendations
What follows are theaspects of State capturethat the Zondo Commission focused on, which can beadapted to other contexts:
- Appointments to senior positions in the civil service: The main problem that the Commission identified was that appointments were directed by the Guptas in order to secure public contracts, for example the chief executives of Eskom and Transnet. Some of this information was obtained through leaks, some from whistleblowers, and the rest from the Public Protector. In consequence, the Commission made extensive recommendations regarding senior appointments, including the creation of new mechanisms for appointing public servants. The core recommendation was to separate the powers — depoliticize — responsible for making appointments for senior positions.Public Affairs Research Institute(PARI) also recommended several reform proposals to streamline the appointments process. President Ramaphosa made some reforms in order to keep his promises to the Commission; however, new legislation is lacking.
- Public procurement: The Commission recommended the “publication of a national charter against corruption in procurement, with a binding code of conduct; the creation of an independent agency against corruption in procurement which includes a council, an inspectorate, a litigation unit, a tribunal and a court; the creation of a procurement officer professional body; and various other changes to public procurement legislation and regulations. The Commission also recommended enhancing transparency and strengthening protections for whistle-blowers.” It did a “good job” laying out the exact mechanisms for procurement processes, which are broadly applicable. However,it did not separate the procurement and anti-corruption questions.Instead, the Government proposed a new Public Procurement Bill and a chief procurement officer, without creating an independent regulator or anti-corruption office.
From theCentre for Applied Legal Studies’(CALS) perspective as part of the Civil Society Working Group on State Capture,it observes that the procurement laws are too extensive and, by extension, easily manipulable. For example, it is easy for a public official to declare an emergency and bypass the procurement laws, something which is ongoing in terms of procuring coal to manage the energy crisis.
- Oversight institutions:As mentioned, the Commission proposed “various reforms to be considered by Parliament, including the establishment of an oversight committee on the Presidency, the introduction of a constituency based electoral system, and various interventions to improve the effectiveness of oversight committees.” There was a lot of support for whistleblower reforms; however, the proposed legislation did not go far enough, lacking security, support, or incentives for whistleblowers. Overall, many of the Commission’s proposals centered on the role of Parliament, primarily its constitutional obligation to hold the President accountable.
- Prosecutions:“[T]hat various implicated individuals be investigated further and possibly prosecuted for their involvement in state capture, mostly concerning charges of fraud, corruption, money laundering, contravention of the Public Finance Management Act (PFMA), the Prevention and Combating of Corrupt Activities Act (PRECCA) and Prevention of Organised Crime Act (POCA), and racketeering.”
- State-owned enterprises:“[T]hat some SOEs and the National Prosecuting Authority’s (NPA) Asset Forfeiture Unit take steps to recover amounts paid to implicated parties as part of irregular and unlawful contracts. (…) [T]he establishment of a body tasked with the identification, recruitment and selection of SOE board members, Chief Executive Officers and Chief Financial Officers.”
According to Open Secrets, “The erosion of capacity, political will and morale at the NPA has become one of the most significant obstacles to accountability in South Africa. Even where other investigators and regulators in the state and civil society unearth evidence of criminality, these cases are transferred to the NPA and are not taken forward. It is imperative that all future leaders of the NPA are not only people of integrity, but more importantly that their appointment indicates commitment to an institution that will be shielded from political interference in the long term. Civil society should also demand a commitment from the NPA that it will pursue cases of economic crime from apartheid to the present day in a bid to tackle impunity.
- Direct election of the President:[T]hat consideration be given to changing South Africa’s electoral system to allow for the President to be directly elected by the people.”