KARAM SINGH: Changing the graft landscape after 30 years of democratic decline

SA remains a constitutional democracy 30 years after the first democratic elections in 1994, and that is worth celebrating. However, the state of our democracy feels increasingly fraught and fragile, and deepening concerns over the effect of corruption continue to tarnish the landscape. 

I remember 1994 vividly because at the time I was a young campaign worker for the party of national liberation, fighting to win votes within the sceptical communities of the Western Cape, unsure and anxious about the future. It was inspiring to work beside leaders such as Dullah Omar and others from the liberation struggle who had a clear vision of what a postdemocratic society should look like.

That vision did not foresee mass looting of public resources by public officials in collusion with criminal syndicates. It did not foresee a broken public procurement system, nor did it envision systemic dysfunctionality of local government. It did not envision that some leaders could operate above the law with impunity.

The vision did find expression in the constitution, which made it a league leader globally on the issue of promotion and protection of human rights and, from a political-legal point of view, the justiciability of rights through the courts.

Early formal victories around housing in the Grootboom case and later in the Treatment Action Campaign antiretroviral case showed that the Constitutional Court was prepared to direct government regarding the high bar set by the constitution on the promotion, protection and realisation of rights.

The Glenister judgment some years later directed that SA requires a dedicated anticorruption capacity at a national level to uphold our obligations within the bill of rights and international law.   

Standing slipped

The fight against corruption and the realisation of rights have a symbiotic relationship. As we fail in the former we are left with a situation in which services are not delivered, communities remain underdeveloped, the economy stagnates and respect for the constitution diminishes.   

From the high-water mark of the constitution and some of these key decisions at the Constitutional Court it is fair to say that SA’s standing internationally and as it is assessed by the national polity has slipped. Recent corruption scandals, including those that flowed from state capture, situate SA as a place that facilitates money laundering on a mass scale, including significant illicit financial flows out of the country to offshore destinations, with low prospects of recovery let alone detection. 

We live in a world characterised increasingly by globally connected syndicates linked to criminal operations and collusion with public officials. While SA has moved out of an era of formal state capture, the worry is that the system remains fundamentally vulnerable to further such projects and grand corruption. Lack of accountability for the state capture culprits of the Zuma era further weakens confidence in the system.   

The recent International Court of Justice Gaza case reminded us that SA still has a role to play as a global advocate against apartheid and in favour of human rights, but government’s track record at home betrays the promise of the constitution regarding providing a better life for all and the full realisation of rights of the country’s own residents. 

With the release of the Corruption Perceptions Index (CPI) we have seen SA fall below the global average and drop two points to a record low score of 41. This places the country in a category identified by Transparency International as flawed democracies, and adds another black mark to SA’s global standing, after the dent to its reputation due to the 2023 greylisting by the Financial Action Task Force. It is concerning that SA is viewed this way, globally and increasingly at home, as we go into an election season.   

Critique of the CPI is always that it is a perceptions index and perceptions, especially globally, may be out of step with those at home and reality. Unfortunately, it is likely that if such a perceptions poll were to elicit internal opinion only, the picture may be even more negative. 

Precarious place

This raises the question: is it fair to characterise SA as a flawed or fragile democracy? How resilient do we feel as a society about the durability of the rule of law? Do we trust law enforcement and see its role and that of the criminal justice system as deterring corruption because criminal and civil accountability for wrongdoing characterise our system?

It is challenging when answering these questions to come up with a narrative that says we are heading in the right direction. With elections around the corner, SA is in a precarious place. Yet compared with others across the continent and world we can be reasonably confident that our system will produce substantially free and fair elections, as this has been a prominent feature of the democratic era. We can have some confidence that our election will not lead to a broken system or direct SA on a trajectory that is antidemocratic or authoritarian. 

If these assumptions are correct, we must seize the opportunities presented by elections and resultant establishment of a new administration, and ensure the anticorruption agenda that is so well articulated in the National Anti-Corruption Strategy (NACS) is fully implemented as a plan of action for the new government in the fight against corruption.    

The priorities include: 

• An enhanced and resourced whistle-blower promotion and projection system with appropriate institutional and financial support from government.
  
• The implementation of a transparent public procurement system with enhanced detection and enforcement capacity across the public sector, including local government.
  
• The establishment of a dedicated independent anticorruption agency based on international best practice in terms of forensic investigative capacity and an appropriately tailored mandate to deliver accountability in terms of the full might of the civil and criminal law — that is, asset recovery and prosecutions.
  
• The promotion of integrity across the public sector through initiatives including the regularisation of lifestyle audits. 

There are other recommendations in the NACS, with which the National Advisory Council Against Corruption is seized and around which we can focus our advocacy, engagement with the new government and public education in the year to come.   

As elections approach, a remaining concern is whether we have any confidence that our political parties are clean, that their funding is above board, and whether the influence of dirty money fundamentally taints our electoral system.

It is significant that unlike many countries we now have basic legislation requiring periodic funding disclosures from political parties. This is an area we must continue to monitor and strengthen as politicians will instinctively try to water it down by raising reporting threshold amounts and ensuring that existing loopholes are exploited. 

It is not all doom and gloom on the anticorruption horizon. There are numerous opportunities to change the landscape, including seeking to inspire the private sector to do more — especially the financial sector and the important role it must play in knowing its customers and detecting suspicious transactions. 

The notion of active citizenry alerts us that we all have a role to play in the fight against corruption. It is our duty to blow the whistle on corruption — even when it may be dangerous.

We will look to the new government to set the right tone from inception by cutting government waste and excesses such as the budgets for VIP protection. In the run-up to elections we must interrogate party commitments to fighting corruption and get assurances that the implementation of the NACS and Zondo commission recommendations become a government priority. 

Together we can change the landscape — many of the blueprints are already on the table. The future of our democratic health depends on reversing the decline and fulfilling the promise of the constitution and the liberation struggle.   

• Singh is Corruption Watch executive director.