DAVID LEWIS: Curb the president’s powers of appointment to avoid state capture in future

While state capture syndicates operated — and some undoubtedly continue to operate in various parts and tiers of government — the one most strongly associated with state capture was led by the family of former president Jacob Zuma and the three Gupta brothers. The exceptional reach and impact of this particular syndicate were rooted in the leading role played by the then president. 

Zuma’s principal contribution to the syndicate was disarmingly simple. He just abused his unusual powers of appointment and his considerable influence to secure the appointment of those who would do his bidding and advance the interests of the “Zupta” syndicate. This is referred to as “state capture” rather than common or garden “grand corruption” — which, for example, accurately describes the arms deal — because having placed people in key decision-making roles the flow of the proceeds of corruption was all but guaranteed, and the risky necessity to construct a new syndicate to effect each corrupt deal was obviated.

To gain this regularised and guaranteed access to the vast resources of the state, a senior political leader had to occupy a leading position in the syndicate. Who better than the head of state? To ensure the stability of the syndicate it was necessary to promote and protect the continued power of the leader of the political arm of the syndicate — hence the  interchangeability of “state capture” and “political corruption”.  

This was achieved in a variety of well-documented ways. A nefarious public relations firm, Bell Pottinger, was commissioned (and paid for by the Guptas) and tasked with constructing an alternative state capture narrative in which “white monopoly capital” was cast as the villain.  Zuma neutered the principal law enforcement agencies and functions, notably the National Prosecuting Authority, Hawks and crime intelligence by the simple expedient of using his unfettered powers of appointment to secure a compliant and compromised leadership of these key agencies. The SA Revenue Service suffered the same fate.

Zuma also had to be protected from the vagaries of ANC elections, with vast mountains of cash allegedly deployed to buy the leadership of the party, from the branches to the top leadership of the provinces and members of the national leadership structures. When the end of Zuma’s second and final term as head of state loomed, an elaborate and costly campaign was put in place to secure a compliant successor.

The business strategy was devised by the Guptas. Their targets were the procurement budgets of the large state-owned enterprises, notably Transnet, Eskom, Denel and SAA as well as the heavily regulated mining sector. Here again Zuma deployed his unfettered powers of appointment to the cabinet to put in place compliant and compromised ministers, particularly in those portfolios that furthered the aims of the syndicate.

How else can one account for the appointment of Mosebenzi Zwane as mineral resources minister and the hapless Lynne Brown to the ministry of public enterprises? Indeed, it is persuasively alleged that the Guptas’ choice of the ministers in these portfolios was simply rubber-stamped by Zuma.

Interestingly, the only time the syndicate’s ministerial candidate was successfully challenged was when Des van Rooyen briefly ascended from nowhere to the finance ministry. In this instance, it was only the extremely negative reaction of the capital markets that compelled Zuma to remove Van Rooyen after he had enjoyed his 15 minutes of fame.

The selection of cabinet ministers is famously the prerogative of the president. It is everywhere dictated by considerations of patronage and competence. When the selection is excessively weighted in favour of patronage the only solution is public pressure or the removal of the president, Zuma’s ultimate fate.

Where the selection of senior public officials — directors-general of government departments and the heads, including the boards, of state-owned enterprises and public agencies — is concerned, all that is required to ensure the appointment of the right people is the application of standard human resources (HR) management criteria, with the added requirement of maximum transparency befitting the appointment of a public official. This should dictate the immediate removal of the president’s unfettered power to appoint key public figures such as the police commissioner, the national director of public prosecutions and the SA Revenue Service commissioner.

Corruption Watch has long championed the application of published merit-based criteria in the selection processes of senior public officials. It has also advocated strongly in favour of transparency — the publication of the contending candidates’ CVs and televised public hearings for the short-listing and ultimate selection processes. Of course, it is always possible for the selection committee to privilege form over content in the application of these principles.  

I vividly recall the selection of the public protector in 2016. Under pressure from Corruption Watch the CVs of the candidates were published and vetted, but when it came to the shortlisting process, members of the various political parties represented on the parliamentary selection committee simply shouted out the names of their favoured candidates, with no consideration given to the merit-based criteria. And so we landed up with Busisiwe Mkhwebane, a heavily politicised appointee who oversaw the near destruction of the institution. 

In the current process of selecting members of the Commission for Gender Equality the parliamentary committee adhered to the form of transparency, but the publicly released CVs were so heavily redacted and the time frames for public comment so truncated as to make a cynical mockery of the principle of public participation.

Political parties, including the majority party, are entitled to nominate candidates who adhere to their broad principles and policies (which is why the furore surrounding “cadre deployment” is something of a red herring).  These principles may include a strong adherence to the principle of demographic diversity in public appointments. But those responsible for the ultimate identification of the best candidate should never be entitled to ignore publicly stated merit-based criteria. I refuse to believe that adherence to the policies of the government of the day and to the principle of demographic diversity precludes the appointment of competent, honest candidates.

The Zondo commission has recommended the adoption of Corruption Watch’s selection criteria in the appointment of senior public officials and board members of state-owned enterprises. Chief justice Raymond Zondo has taken these a step further and recommended the establishment of a “standing appointment and oversight committee” responsible for a range of senior appointments. This should be given serious consideration. I envisage the appointment of a pool of senior human resources (HR) practitioners whose members form the core of the various selection committees, with sector experts and senior parliamentarians or a minister co-opted onto these committees where necessary. 

An engineer, no matter how brilliant, is unlikely to be co-opted onto the committee selecting the director-general of the department of arts & culture, for instance, but when selecting the head of, say, the Industrial Development Corporation, the HR practitioners would want to be supported by someone with expert knowledge of development finance. The committees should then be required to base their selection on publicly transparent merit-based criteria, and on adherence to the broad policies and principles of government, including demographic diversity.

This would go a long way towards thwarting further attempts at state capture.

• Lewis, a former trade unionist, academic, policy-maker, regulator and company board member, was a co-founder and director of Corruption Watch.