Dangers of the Zondo Commission

 

Sceptics complain that the Zondo commission of inquiry into allegations of state capture, corruption and fraud in the public sector is a waste of time and money. It could turn out to be much worse than that.

President Cyril Ramaphosa’s New Dawn narrative can be sustained only by portraying the new ANC as distinct from the old. Unfortunately, the party recently elected a national executive committee at least as questionable in its probity and moral integrity as its predecessor.

Given impending national and provincial elections, Luthuli House has fallen back on familiar theatrics. Parliamentarians have been woken from their slumbers to exhale moral hot air over selected officials. In their “oversight” committees, ANC MPs have suddenly discovered obvious but previously overlooked truths.

What does a commission of inquiry add? It allows the president and his allies to pass responsibility for politically costly decisions to a judicial body. It helps protect the ANC from popular anger by pushing back the “time of reckoning” to 2020, or even 2021, by which time the Gupta family will be a distant memory.

Commissions of inquiry also insulate powerful politicians against prosecution by justifying deferral of prosecutions. Justice delayed means a comfortable retirement for most miscreants. Worse still, crooks are forced by a commission to testify under oath that they and others are innocent. This makes it all but impossible to turn offenders into state witnesses, because perjurers cannot later present credible testimony.

With the passing of time, the prospects of prosecuting the big fish will fade. Officials further down the food chain — those who put their signatures to documents or wrote compromising e-mails at the behest of their political principals — will take the rap (on the knuckles).

There may be ministerial scapegoats too, for example three or four fired ministers who have been unnaturally quiet in recent months. But it takes work to pin down politicians as actors who were demonstrably responsible for voluntary actions that made corruption possible.

A commission of inquiry instead tends to dwell on the general background conditions to any event. The terminology employed in the Zondo commission’s terms of reference is especially infelicitous, because the idea of “state capture” is open to myriad interpretations.

At a theoretical level, state capture has been explored by scholars of governance over the past two decades. But it has not yet proved to be a very illuminating concept. Corruption involves directly breaking the law, whereas state capture involves the (often legal) shaping of laws, regulations and procurement decisions to the benefit of private actors.

Scholars view state capture as a systemic phenomenon, in which members of political and business elites appropriate certain state functions to access resources. Unlike a near-equivalent term, “crony capitalism”, which turns our minds towards exactly who the cronies were and what they did, state capture evokes “a system”.

In a line of analysis popular among many South African intellectuals, the capitalist state is “always captured” by business. And state capture is indeed often alarmingly hard to separate from lobbying.

The commission is ably staffed and led. Such talented legal practitioners’ extended reflections on post-apartheid history, the nature of global capitalism and the relationships between corruption and state capture, will no doubt be illuminating.

But many citizens will hope the commission will focus primarily on the corrupt actions of political principals, on urgent referrals for criminal investigation and on the imperative that the commission’s work does not unwittingly impose constraints on future prosecutions.

• Butler teaches public policy at the University of Cape Town.

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