Prof Dirk Kotzé
On 17 September, the Madlanga Commission reached the milestone of being in operation for exactly one year. At present, it intends to conclude its public hearings on 2 October and then proceed to prepare its final report.
During this one year, it has already submitted two interim reports to President Ramaphosa. During this year, numerous witnesses have appeared in court, Lt-Gen Feroz Khan has been removed from SAPS, and Andrea Johnson resigned as the IDAC head. Without doubt, the Commission’s impact is already tangible even before the final report.
What can be expected or what should be included in the final report?
Two categories of recommendations are most likely to be made. It is important to emphasise that a (judicial) commission of inquiry can only make recommendations to the President – its recommendations are not the same as a judicial judgement, and it has no powers of implementation. All of those are in the hands of the President.
The first category of recommendations will probably deal with individuals, including political figures, members of Parliament and officials in different state institutions, like SAPS, NPA, IDAC, IPID, the metro police services and others. Similar to the first interim report, we can expect persons to be identified by name in the commission’s conclusions and recommendations.
Also included in this category can be conclusions and recommendations about private persons, especially those involved in criminal activities, such as the Big 5 and criminal networks. Very important also in this category would be the Commission’s connecting the dots about the procedures or patterns followed by criminal groups in order to infiltrate public institutions and co-opt public officials into their activities. Recommendations on how to break this pattern will be very important.
The second category should be about institutional reforms. The current acting Minister of Police, Firoz Cachalia, has already made known his ideal of “resetting” the SAPS and for that reason he appointed a ministerial panel chaired by former SARS commissioner, Edward Kieswetter, to take it further.
Recently, the Commission heard evidence from two persons associated with the World Bank’s anti-corruption projects as well as Dr Mark Shaw of the Global Initiative Against Transnational Organised Crime. All of them concentrated on potential institutional reforms.
Given these inputs, one can deduce that the Commission is interested in formulating recommendations about institutional reforms in the public sector as counter-corruption measures. Yet such a focus should not play second fiddle to the conclusions about the personalities we have become familiar with on our TV screens.
The latest evidence presented to the Madlanga Commission proposed that South Africa should learn from international experiences. Dr Shaw referred to the steps taken against the Mafia in Italy as such a lesson, and especially the fact that public prosecutions must be centralised to protect prosecutors against threats.
The evidence by the World Bank consultants concentrated on two anti-corruption measures. The first one is possible disclosure procedures to be followed by senior public officials. These procedures concentrate on ethical standards, such as disclosing conflicts of interest and disclosure of personal financial income.
The second measure is vetting of senior staff members. It should apply to incumbents as well as new appointments and promotions of senior officials. Vetting is a complex matter, and all its different permutations have to be considered. One established point is that reliable vetting cannot be done internally, but must be an external procedure.
Shaw emphasised institutional reform as a non-negotiable agenda point for countering endemic corruption. His observation was that criminal networks do their planning on the basis of what they have identified as institutional vulnerabilities.
These networks discover the weak points in institutions like SAPS, IDAC or Crime Intelligence and then focus their infiltration or compromising strategies on them. He concluded that corruption problems will not disappear when the perpetrators have been removed.
The problem will continue until the institutional vulnerability has been resolved by institutional reforms. The removal of senior SAPS, metro police or IDAC officials will therefore, on its own, not solve the problem.
Looking back at the witnesses who appeared before the Madlanga Commission, one hopes that it will not stop at the point of seeing conclusions about these individuals and the institutions they have exploited, but that the evidence will also have a broader significance for the public sector and possible reforms. The following are a few such matters with wider implications.
The evidence presented early in the Commission's activities about who decided to disband the Political Killings Task Team (PKTT) raised in the process a constitutional matter about the relationship between the Executive (Minister) and senior Administration (National Commissioner or Director General).
It engages with a separation of powers principle that should apply across the public sector and in all three spheres of government. More legal or constitutional certainty about its interpretation is, however, required. This clarity will also be very important for an anti-corruption strategy.
The Commission exposed outsourcing of public services in the form of private contracts as one of the highest-risk institutional vulnerabilities in relation to corruption in South Africa. Whether it is Cat Matlala’s private security contracts with metros or health services for the SAPS, or Brown Mogotsi’s role as a match-maker, it creates opportunities for deals between public officials and private “enterprise”. It is imperative that procurement procedures be reformed in their entirety.
The appointment and promotion of senior public officials are also prone to exploitation by persons with criminal intentions. Though it will require several legislative (and even constitutional) amendments, human resource procedures will have to be reformed.
Given the fact that several public appointments already proceed through a parliamentary, public process, an independent one for other senior officials must also be considered.
If one looks closely at what the Madlanga Commission is in fact doing, it boils down to a process in which they demand accountability from public officials. That public accountability is the prerogative of the legislatures in all three spheres of government. In the process of the Commission’s hearings, it actually revealed what the parliamentary portfolio committees have not done.
Commissions of inquiry cannot regularly be convened to do this work. Therefore, as part of strengthening the portfolio committees, Parliament must either acquire an investigative capacity of its own to assist the portfolio and ethics committees, or it must have external access to such capability.
Finally, many of the witnesses at the Madlanga Commission have been incriminated, to a large degree, based on their WhatsApp messages. It supports the argument that digitalisation of all aspects of the criminal justice system is urgently required.
It will establish an indelible documentary trial record, will make the loss or manipulation of documents almost impossible and will record reliable evidence in all circumstances.
It is very much possible to concur with Dr Shaw that the current climate of political and public support for the Madlanga Commission must be exploited as soon as possible in support of the structural or institutional reforms mentioned here. That will entrench a lasting legacy for the Commission’s work.
* Kotzé is based at the Department of Political Sciences, Unisa.
** The views expressed do not necessarily reflect the views of the National Media Group.