Expert’s responses analysis
There were mostly similar as well as a number of diversified opinions in the responses to questions structured in order to receive, assess, and absorb expert opinions of interviewees belonging to all three categories of the first leadership group of the new body in its ‘first stage’ of two years. The questions dealt with key issues of structures, processes, realities, and expectations associated with the body. There were mostly agreements in respect of key issues but also queries and additions based primarily on the deep knowledge of the interviewees as well as their viewpoints and beliefs guided by it.
In the preliminary introduction of the topic and the explanation of the structure of the open-ended questions to be answered the researcher had the opportunity to ask the prospective interviewees’ opinions on the conditions and realities of the anti-corruption agencies and the existing law enforcements in the country at present.
The general response was rooted on the belief that such agencies and anti-corruption bodies were an integral part of a corruption-ridden public system, a small part of which still ‘remember with nostalgia the Scorpions,’ possibly the only such system in the world that has faced the reality that every single Commissioner of police has been removed from his/her position facing charges for corruption. Such an undisputed fact points to the vital significance of senior appointments of well trained, highly educated, and ethical leadership.
Four of the interviewees (No 2, 4, 5 and 8) pinpointed to what they described as ‘complete lack of efforts to corrupt prevention’ in terms of what was described lack of clear cut scientific examination of anti-corruption personnel integrity tests through instruments such as lie-detectors and newly established testing tools, especially in key corruption-ridden or corruption- creating public sector functions such as supply chain management and procurement, risk management and internal audits amongst others.
Interestingly, similar positions have been expressed by a highly experienced and knowledgeable former head of the NPA (National Prosecuting Authority) who has publicly mentioned that ‘the focus in the country’s law enforcement entities had been on violent crimes and sexual offences’ due to the public outrage. ’Such a position, it was stated, points to the significance of the support of an anti-corruption agency that only focuses on anti-corruption, not rape or murder. The proposed anti-corruption agency on his part should have the “vital power” to allow answers to self-incriminating questions “like the Scorpions.”
Such important positions on the part of the retired anti-corruption leader were demystified as follows:
“If there is no cost to them changing their version when evidence comes up, it drags on and on. The Investigating Directorate does this, but its 30 or 40 people will not make a difference. Self-incriminating questions cannot be used against the confessor in his own trial but can be used against others.”
He also favoured a “proper whistle-blower mechanism” that fell under the control of retired Constitutional Court judges, as he believed that such a step would make whistle-blowers feel safe (Hofmeyr, 2021).
The gist of responses to the questions set appears below:
Question 1: The National Anti-Corruption Strategy has indicated that the number of persons in NACAC should be senior representatives from government, civil society and business, consisting of between seven (7) and ten (10) members. Do you consider the composition of the body appropriate and according to NACAC’s principles, duties and responsibilities? If NOT please state your reasons.
There was one interviewee who was from the beginning against the very existence of the proposed new body (Interviewee No 3).
The interviewee begun the describing the National Anti-Corruption Strategy 2020-2030 as a ‘detailed document rooted on good sense’ and an agreement with the ANC’s NEC urgent resolution in 2020 that ‘instructed’ the Cabinet to establish a single, permanent, and independent agency with the capacity to deal with corruption decisively. This ‘instruction’ was ‘echoed’ in the President’s announcement on February the 21st of the National Anti-Corruption Advisory Council. The interviewee’s belief that ‘the President has been ‘poorly advised’ by politicians who have no understanding or knowledge of the crucial significance in law of the thrust of the findings in the Glenister litigation case (Glenister 2 and 3) that are binding. It was stated that the findings of the case that was centred on the inadequacy of the Hawks were based on the fact that a statutory body as described in the Presidential State of the Nation Address cannot enjoy the legally required security of tenure of office. This means that the body is illegal and will face the fate of the Scorpions, an organisation that disbanded after the ex-President Jacob Zuma replaced then President Thabo Mbeki.
The interviewee’s position was clearly based on the belief that the new body described by the President in SONA will be immediately very vulnerable and will face the same ending as the Scorpions. This is, because it is not legally a Chapter 9 institution, an entity that is structurally and operationally independent, one that cannot be legally terminated by a simple majority. On the other hand, it was believed that a ‘real new Chapter 9 institution’ that has the mandate to investigate, prosecutor and answer to Parliament is needed.
There was a strong belief that the new independent anti-corruption body described the President was ‘unconstitutional’ and such a position was in fact a negation of the ANC’s National Executive Committee’s resolution in August 2020 as it was mostly in accordance with the Glenister 2 and 3 binding findings.
It was felt that the fact that the advisory body’s initial composition has not been announced by the President yet points to the reality of deep misunderstanding of the complexities of laws, corruption realities, as well as the Zondo Commission outcomes. Following SONA there was the expectation that the appointment of the members of the new body would be the first priority. The delay of such an appointment was described by the interviewee as a lack of planning and implementation of key decisions announced publicly which aim at ‘filling the gaps in the fight against corruption’ in South Africa. Such gaps can be only filled by a lawful anti-corruption advisory body that will enable a new successful path for the government. This could only be a body rooted on the clear findings of the Glenister 2 and 3 cases.
The introduction of such a body would be the beginning of a road leading the country far away from corruption and ‘state capture’ through carefully executed efficient steps against the corrupt elements throughout the public service and beyond.
There was a strong belief that the Democratic Alliance, through an alliance with non- governmental organisations was prepared to present private members’ bills supporting a new anti-corruption investigative body, while non-governmental organisations had already prepared in legally based plans for a ‘one-stop shop’ Chapter Nine organisation that when established would be able and capable to investigate and prosecute all forms of serious corruption at all societal levels. Finally, it was stated that for the new body to exist and operate ‘a new law needs to be passed’’.
This meant that given the ‘procrastination of the President’ to establish the new body a court case was prepared to have such a ‘plan’ nullified (Interviewee 3).
There was a general acceptance on the number of members elected by the President as the first leading group of the body (between seven and ten) and despite the almost general acceptance of the suggested sectoral representation there was a somewhat diversified opinion. Interviewee No 5 believed that a ‘community member’ should be included in the group and such a position was justified by the example of NEDLAC (the National Economic Development and Labour Council), where there is a community and a worker/labour union contingent. While the equal representation of the groups was generally agreed upon by the interviewees there was a belief that the diversification of the groups, especially those from the ranks of labour and civil society was important (Interviewees No 2, 4, 5 and 6, 7, and 8).
A critical issue raised by Interviewee No 1 initially and agreed upon by the majority of the rest was that the most essential element instrumental in the success of the body is that the chosen members have a developed understanding of the subject matter they will be dealing with. It was felt that knowledge that includes the internal workings and systems of public sector organisation, how corruption manifests itself within such organisations, as well as what is to be learnt from the international literature on corruption in the public sectors and the established best practices towards combating is essential. It was strongly felt that without such understanding and experience the NACAC would be ineffective - as previous anti-corruption initiatives have shown conclusively.
A number of interviewees indicated that given the existing realities evident within the political and organisational structures of the ruling party, the President’s selection of the body’s members from government should be based on clear criteria of credibility, honesty, existing historical background and serious knowledge of the realities, laws, rules, and regulations regarding corruption (Interviewees No 1,2, 4, 6 ,7). An interviewee emphasised the importance of the proposed number of the initial leadership core, especially in terms of the importance of labour representation. It was felt that more people in the leadership of NACAC ‘would spoil the broth as the saying goes’ (Interviewee No 8).
Question 2: It is stated in the Anti-Corruption Strategy Document that ‘This body will be responsible for the managing of the initial transitional matters of strategy implementation, including research, conceptual development and drafting of a proposal to Cabinet for the establishment of the overarching body’. Is it viable that all these matters of strategy implementation can be undertaken by the NACAC senior representatives? If not, what do you feel are the alternatives and the reasons for your response?
Given the knowledge of all interviewees, especially in relation to the SOUTH AFRICAN ANTI-CORRUPTION STRATEGY 2020-2030, it was not a surprise that the possibility that an appropriately staffed NACAC would be able to manage the necessary and successful implementation of the responsibilities stated in the Anti-Corruption Strategy Document was very viable at all levels.
Despite the general acceptance that the proposed planned and implemented new body could be capable in managing the necessary and successful implementation of the responsibilities as outlined in the Anti-Corruption Strategy Document it was strongly felt that there were a number of ‘particularly important’ prerequisites for such a success to become a reality:
The NACAC is given the necessary authority to issue relevant directives and oversee their implementation. Without such a step forward any hope for success is lost (Interviewees No 1, 5, and 7, 8).
That these instructions are regarded as mandatory (Interviewees No 1, 3, 4, 6 and 7).
That all Cabinet Ministers actively support the NACAC and its mandate (Interviewees No 1, 2, 4, 6 and 7).
That the Accounting Officers and Accounting Authorities (as per PFMA/MFMA) actively support and oversee NACAC directives – and must account for their effective implementation and ongoing application (Interviewees No 1, 4 and 7).
That the NACAC directives are incorporated within the internal control regime of each and every public sector organisation – including the PFMA/MFMA stipulated internal audit function, the risk management function and the laid down procurement practices (Interviewees No 1, 4, 5, and 7).
That every public official involved in the requirement as the above necessities outlined above must undergo serious essential education covering the nature of public sector corruption and the NACAC prescribed anti-corruption practices (Interviewees No 1, 4, and 7).
That the various members could introduce various strengths to the table and would not all, for example, have to be researchers although research is an inevitable element of the body. This means that NACAC senior representatives could need to have subcommittees for some of the work as not all elements or decisions are research orientated and might be strong on a particular strategy element but not all of it. It was felt that there could not be expectations for each member to be conversant in all aspects of the corruption realities, meaning that such undertakings would be outsourced to specialised, ad hoc committees (Interviewee No 8).
A number of such statements were seen as important in the context of future challenges facing the key operations of the new body and its members as two interviewees (No 4 and 6) pinpointed the undoubted fact that the forthcoming report emanating from the Zondo Commission of Inquiry into State Capture would open new avenues of challenges at all levels leading to new relations and actions undertaken by anti-corruption agencies. Such new decisions and outcomes were also described as opening new paths in the relations between the new body with organisations such as the South African Revenue Services (SARS) and the Special Investigation Unit (SIU) that have been decisive in their road to new, forward-looking, and positive directions (Interviewees No 2, 5 and 8).
There could be the possibilities of difficulties in future relations leading to the necessity of fresh paths of collaboration between the new body’s leadership with group/s of politicians as well the leaderships of central, provincial and district municipal leaderships associated with corruption still under investigation as well as state-owned companies such as the Airports Company South Africa, Transnet, Denel, and ESCOM. These realities demand unity of purpose, common understanding of existing realities and openness as vital ingredients of success (Interviewees No 3 and 6).
Question 3: It is stated that ‘The NACAC must be supported by a full-time dedicated secretariat to facilitate any practical arrangements, to consolidate and record its work and reports, and to ensure that it can deliver on its mandate’. How important is the composition of such a body and what skills, knowledge, and experience and sector background (public or private) the potential secretariat members should possess. Provide reasons.
It was widely acknowledged by the interviewees that the challenges associated with NACAC’s planning and operations as described in the Anti-Corruption Strategy document will be extremely difficult because of the vast expansion and complex composition and dimensions of a public sector that is characterised by the existence, structures and functions of separate institutions and entities. Bearing in mind the reality that NACAC has the responsibility to deal with each one of them equally and comprehensively, it is inevitable that the establishment of a supportive secretariat is crucial to the fulfilment of its mandate (Interviewees No 1, 5, and 8). While the NACAC leadership should be the “brains trust” of the body, members of the secretariat should be attuned to the subject matter and goals of the NACAC to constructively carry out the instructions of the body – especially as it will be the main daily conduit of communications between the NACAC, anti-corruption bodies, Government Departments, Public Enterprises etc. This would require the secretariat members to possess a good understanding of the internal workings and the legal frameworks of all these organisations – as well as all the report writing, meeting organising and other administrative abilities that would be necessary for the comprehensive and successful operational duties and responsibilities.
While it has been widely accepted that strong organisational skills and meticulous treatment of existing technical and other existing challenges and problems within the entity, it was felt that that research capacity and skills experience would be beneficial at this this level especially when dealing with confidential information (Interviewees No 2,4,6 and 7).
These realities mean that from the beginning the NACAC leadership should recruit highly qualified staff, with skills that are the foundation of future success. It needs to be noted that the commitment to effectiveness of the leadership functions in the process of fighting corruption should be integrated into the duties and responsibilities of the secretariat that could be diversified in terms of operations as follows:
The key duties and responsibilities of a secretariat involve a good number of individuals executing daily administrative tasks for an organization, mainly but not exclusively the handling human resources and personnel issues; the organisational finances; practical arrangements for the meetings; planning, implementing, and maintaining a forward plan of agenda items and liaising with the Chair to prepare agendas, and preparing, checking, and issuing accurate minutes. Such a group of professionals needs to be practitioners with a wide variety of qualities associated with the individual’s positions, duties and responsibilities. The combination of hard and soft skills in terms of qualities include deep knowledge of the incumbents’ duties, responsibilities as well as the subject/s associated with the operational roles, such as high technological skills, and deep understanding of the issues related to the communication channels of all anti-corruption agencies, authorities, and state institutions at all levels (Interviewees No 1, 3, 6 and 8).
It was felt that the members of the Secretariat could become important in the effort to upgrade existing realities both within government departments and entities as well as upgrading the knowledge of anti-corruption agencies staff in issues as important as an advanced understanding of the Treasury rules and regulations in regard of public procurement, through a careful dissection of first operational stages of the processes involved in supply chain management. Such a process could be based on setting standards and regulations in regard to the procurement and disposal activities of Procuring and Disposing Entities (PDEs) such as Government ministries, District Municipalities, Local Municipalities, and all other public bodies engaged in the procurement and disposal activities. Such processes and mechanisms comprise of compliance inspections of PDEs in terms of establishing whether the legally based structures of all relevant contract and procurement committees and their composition are functional, and that the disposal units are in place and functional and according to the rules, laws and regulations. Such a process compliance inspection could lead to the identification of structural and/or functional weaknesses, challenges and problems that could ultimately lead to further investigation. Such initiatives will make a real positive difference in performance at many organizational levels (Interviewee No 5).
In order to dissect the real significance of the secretariat’s understanding of the realities and dynamics facing anti-corruption agencies, an interviewee set up the example of the relationships of ministers associated with such institutions. This was done through the utilisation of the position and attitudes of the Department of Justice leadership, the National Director of Public Prosecutions (NDPP) and the financial independence of the NPA. It was stated that existing relations between these state institutions in regard to NPA’s financial position are in need to be solved, as the existing situation does not allow the entity to pursue meaningful prosecutions. This means that the secretariat employees need to understand the administrative and financial condition of anti-corruption agencies as well all state institutions in general in order to be able to fulfil their duties and responsibilities. It was felt strongly that as the communication with all anti-corruption bodies is considered of paramount importance, both the leadership and the secretariat should plan, design, and implement strategies and tactics as the first key priority (Interviewee No 3).
Question 4: It is stated that in terms of accountability and reporting that is recommended NACAC should report to the President and its reports tabled in Parliament. According to your own understanding, experience and knowledge does such a reality mean that possible debates and majority decisions can become instrumental in changing or/and modifying existing decisions of NACAC? Can you provide the reasons and your own ideas on such a possibility?
The difficulty of this question that can be justified as legally and politically challenging attracted only two responses from the interviewees. The fact that both interviewees who tackled the issue have experiences both in government institutions, academia and research at a number of levels, indicate both the significance and dilemmas associated with the challenges associated with such decisions. The first position based on the interviewee’s experience both within government institutions, legislative roles, academic research and teaching and political oversight is rooted on the belief that it would be important for NACAC to be given scope within its prescribed mandate to make changes to its decisions should this be seen as necessary to further improve the effectiveness of its anti-corruption efforts. It was felt strongly that such changes should always be made within existing administrative laws and not in conflict with executive directives. It was felt strongly that it would be advisable that the stance of the Cabinet, Parliament, the Accounting Officers, the Accountant General and the Auditor General should be invited and taken into account prior to any significant changes being proposed. Depending on the legal mandate of the NACAC and the degree of independence it is given, it could be subjected to Executive and Parliamentary prescribed changes. However, it was strongly felt that such impositions are not likely (Interviewee No 1).
On the other hand, Interviewee No 8 felt that given the importance of NACAC as evident in both the Presidential announcement as well as the content of the Anti-Corruption Strategy 2020-2030, it was felt that new and innovative rules and/or regulations should be structured from the relevant bodies so that the possibility of confusion, misunderstandings that could lead to political and/or legalistic dilemmas could be avoided. The interviewee felt that the final decision would depend on the level of the debates and their constructive nature. Decisions, it was said, should be commonly agreed upon rooted on the common belief that the best interests of the country are of paramount importance (Interviewee No 8).
Question 5: It is stated that ‘a transitional interactive strategic relationship will have to be maintained with the Anti-Corruption Task Team (ACTT) and all law enforcement agencies. Similarly, the work of the NACACS steering committee and NACS reference group should be incorporated into the interim advisory body’. Which section of the Advisory Council do you feel will maintain such relationships, the 7 to 10 of senior representatives from government, civil society and business or by the full-time dedicated secretariat to facilitate any practical arrangements, to consolidate and record its work and reports, and to ensure that it can deliver on its mandate. Provide the reasons for your answer.
The responses can be characterised as similar in most cases, but with a small number of diversions that need to be explored for comments. The general agreement was related to the common belief that any relationship of NAPAC with anti-corruption bodies and other state institutions should be well defined. It is believed that in such relationships the significance of the ‘detailed realities’ is of paramount importance, a fact that will lead to the avoidance of repetitions of past experiences. There was an agreement amongst most interviewees that it was the responsibility of the 7 to 10-member Advisory Council body to communicate with other bodies its policy and action, which will also be presented to the President and Parliament. The member of the Secretariat facilitates such communications at the administrative level. There were also a small number of different positions on the issue.
It was mentioned, however, that experiences of conflicting responsibilities and authorities between various bodies have been instrumental in undermining the effectiveness of the overall anti-corruption intentions of the Government at many levels. This means that the best way forward depends clearly on formalised areas of responsibility and authority which all work within a single coherent anti-corruption/strategy and action plan. It was felt that such a need does not exist at present (Interviewees No 1, 4, and 6).
The role of the Secretariat and its knowledgeable staff was said to be a key in creating an environment leading to success. Hence the body needs to be enabled to play a key role in providing the functions and processes of an ‘educational enforcement mechanism’ that could prove instrumental in the fight against corruption in terms of dissecting procurement audits within both government entities as well as the anti-corruption agencies.
This is because audit reports throughout the years have been very important sources in analysing the functionalities and dysfunctionalities of procurement and risk management structures and functions as well the relationships between politicians, administrators, and business operators. This means that in the final analysis the comprehensive examination of specified disposal or procurement cases that have given wide negative publicity to the people, a fact leading to public controversy, lack of trust, suspicion of corruption or malpractice leads to well planned, investigation of the relevant anti-corruption agencies. Such an understanding and analysis within this context leads to a belief that at a time when suspicion of a corrupt act in public supply chain and procurement areas are reported to the appropriate anti-corruption authorities, the rule of law demands criminal investigation and prosecution with integrity. In such cases the investigative powers leading to prosecution are in need of capability and excellence on the part of the state employees responsible to deal with such issues and challenges (Interviewee No 5).
Such a position by the one interviewee was supported by a business person whose opinion was based on the fact that the realities of corruption and anti-corruption have not slowed down, especially during the period of the Covid-19 pandemic and the continuous Personal Protective Equipment (PPE) corruption had devastating effects on the lives of millions of the poorest of the poor throughout South Africans. This reality was perpetrated for months despite the fact that the Special Investigating Unit was seriously activated, and a large number of such cases were investigated, and culprits were discovered and punished. Such anti-corruption initiatives were also active through the Fusion Centre (Interviewee No 6).
On the other hand, there was a belief that the ACT has not proven much success in matters relating to their core activities, while the same applies to the division and duplication among the law enforcement agencies. This was said, to leads to the conclusion that in the end, there is the need for a process leading to substantial transformation within the parameters of the Criminal Justice Cluster. Once such an effort succeeds there is an open opportunity for all stakeholders and role players to begin a constructive and useful debate in respect of all important matters in the fight against corruption at all levels. In the end, it was believed, the responsibility lies with the leadership of the NACAC Advisory Council while the Secretariat will mostly provide professional and support services. The NACS Reference group at least represents all sectors involved in the fight against corruption (Interviewee No 7).
Interviewee No 8 believed that the Secretariat in collaboration and direct communication with the main body would provide the ‘guidance of how issues would be resolved after following the administrative processes’ that include direct communications with all government clusters, the DPSA and the National Treasury. The final decision, it was believed, rested with the President and the Department of Justice.
Question 6: It is proposed in the National Strategy document that their term of office should be two years’ maximum or until the overarching body is established and operational. Do you feel that the term is well thought given the existing circumstances? Please justify the answer.
There were two basic positions regarding this question with 3 interviewees stating that given the existing circumstances it was extremely difficult for them to comment on the issue. Three interviewees (No 1, No 5 and No 6) believed that those two years should be an adequate period for the overarching body to establish the necessary functionality and to go through the learning curve in order for it to establish an adequate modus operandi for the permanent body (i.e., phase 2). For the interim body to extend beyond two years would lead to the loss of necessary urgency and impetus of the NACAC initiative.
Two interviewees, however, who based their opinion on what they called ‘a clear understanding of the Anti-Corruption Strategy 2020-2030’ (Interviewees No 2 and No 4), believed that the realities facing South Africa, Africa and the world during the Covid 19 pandemic have led to devastating human, social and health challenges. Such realities, it was believed, have led them to the conclusion that the present and future decisive battles against corruption can only be led and guided by groups of political leaders, politicians, administrators and future leaders and employees of NACAC who themselves are honest, committed, transparent, independent-minded, well - educated and trained specialists in a number of scientific disciplines associated with corruption in all its sides and angles. Their belief was even if the leadership and the Secretariat of the new body were widely accepted because of their own credentials, history and background, the dynamics, realities, challenges, complications, and existing circumstances are so diverse and multi- dimensional that this period is not enough for the completion of the target. It was felt that the term is most likely too short given the fact of all the existence of the technicalities involved and especially the realities of the existing bureaucratic system in which this body will function. It can also be seen with Councillors in local government-they barely have their internal aspects sorted, started with work (especially when taking over from another political party) and then their time has expired (Interviewee No 7).
Interviewee No 8 believed that the success or failure of such a plan could depend on the reality of setting up the appropriate aims and objectives as well a ‘business plan’ consisting of the realities of the mandate, the roles, structures and membership of the body, the existing and future resources, the priorities, the performance measures and annual targets,the functionalities of the systems, audit realities, risk assessment and mitigation, policy and priorities agendas.
Question 7: It is stated that in terms of budget and resourcing and given the fact that the NACAC will exist for a maximum of two years, this structure can explore the use of funds from the Criminal Asset Recovery Accounts. Do you think that such a possibility exists? Provide the reasons for your answer. A proposed alternative is welcome.
It was stated that this proposed source of funding for the NACAC is certainly worth exploring.It was felt that a legal opinion should be sought as to the authority of National Treasury to redirect the distribution of these funds.Failing this, it should be possible to convince the Minister of Finance that funding of the NACAC (and its Secretariat) should produce a considerable return by way of reduced corruption i.e., reduced loss of public funds in Public Sector institutions – which in turn justifies its funding (Interviewee No 1).
It was felt that such a decision that could lead to a reality in the end of the process will literally depend on all of the costs that the Council will incur.While the allocation of a budget during the period of the operations could be considered a ‘done deal’, additional funds could come from the Criminal Asset Recovery Accounts. However, it was believed, one should keep in mind what the Criminal Asset Recovery Accounts are actually supposed to do with for example the recovered funds. If the Advisory Council should find their own financial means it will not work (Interviewee 7).
Question 8: What do you consider the best ways and channels used by the various anti-corruption agencies to coordinate and interact?
This was basically a ‘general question’ set with the hope that the knowledge of the interviewees even from a variety of different angles would or could provide new knowledge or original ideas and alternatives suited to the new entity.
The majority of interviewees (Interviewees No 1, 2, 4, 5,6 and 8) mentioned that this was a ‘very difficult question’ for a number of reasons, the most important been the multiplicity of anti-corruption laws, rules, regulations and anti-corruption bodies as well as what was described as the difficulty of South African people, including members of Parliament and senior public servants at all government levels to really know and understand of specific duties and responsibilities of each of these bodies. The name of the Scorpions that do not really exist anymore cropped up a number of times as an almost ‘generic’ belief emerged that ‘perhaps a new body can be the only carefully selected conclusion.’ The new body NACAC was mentioned by four of the respondents as a possibility, although it was stated that knowing the problems and challenges facing the political realities associated with such decisions, a final answer was difficult (No 4, 5,6 and 7).
Interestingly a similar position to a point, albeit with an addition, was provided by one of the most distinguished international corruption and anti-corruption researcher Professor Drago Kos, who is the Chairperson of the OECD Working Group on Bribery in International Business Transactions, as well as the co-chair of Mena – the OECD Business Integrity Network, and a member of International Anti-Corruption Advisory Board (IACAB), among others. He questioned whether South Africa has an anti-corruption fatigue because of the fact that the country has 14 anti-corruption agencies. He pointed out that although political will and the right personnel are key to success, any new proposed entity would also need clearly defined powers and resources.
Because of these realities, it was stated, ‘South Africa does not need an agency number 15’ (Kos 2021).
An almost similar position was proposed by Interviewee No. 7 as follows:
“I have always thought that, considering the least corrupt countries in the world, that the South African system has too many pieces of legislation and various bodies. My first suggestion would be to streamline these and then, basically on a similar basis to the intergovernmental relations framework, coordinate, and work together. It would be best to have ONE central reporting point (where there would not be any undue influence) and where information can be compared, verified, and acted on.”
One interviewee with attention to detail indicated that a ‘new, fairly radical approach’ might be needed based on the successes of both international, but also African governments. His point was based on all countries’ choice, including South Africa, what is more important in the fight against corruption, punishment or prevention? He provided the examples of South Africa and Botswana. The point was that the South African people and government have been facing the fight against corruption been only successful when the corrupt are arrested and punished in accordance with the corrupt acts, while the prevention initiatives were considered weak or non- existent. The examples of the Hawks, the National Prosecutor and the SIU were mentioned, and the question arose how their successes, their functions and the reasons of successes or failures were communicated to the people who could learn. The conclusion emanating from such realities pointed to the possibility or probability of a new trend that has been now considered as ‘the foundation’ of anti-corruption success, diagnosis, thorough investigation, widespread education, effectiveness. New operational dynamics planned, structured and implemented through a deep study of the best practices across the world (Interviewee No 8).
Conclusions and recommendations
The key question marks in the minds of anti-corruption leaders, activists, researchers, throughout the public and the private sectors, civil society and the country’s people at large has been revolving since the evening of the 21st of February 2021 around the proposed development of a new anti-corruption entity, the National Anti-Corruption Advisory Council.
This is due to the fact that South Africa has 14 fully operational anti-corruption agencies and bodies it was inevitable that serious research was needed in order to assess whether the existing realities were in need of a ‘a gap analysis’ able to assess the necessity of an additional entity /entity, its nature, structures, functions and future responsibilities, planning and implementation imperatives and above it its benefit. This meant that the benefits and/or challenges of a new agency and its leading/guiding/ organising /supervising role, in short its ‘operational mode’ should be clearly identified and detailed as most cases at such new entities tend to be multi-layered and complex.
Key questions are developing while the processes, realities, future structures, leaderships, relationships, co-operations, planning for efficiency and effectiveness and possible challenges and problems are unfolding. Debates and decisions have continued or will continue on the issue even during a period when even the real need for such an initiative is urgent, mainly because of the fact that there is a multiplicity of anti-corruption bodies and a widely acknowledged solid anti-corruption legislation, rules, and regulations.
Those who have questioned and debated the need of a new institution have used legalistic, legal, financial, functional/structural, personal/professional knowledge and experience and comparisons associated with the effectiveness, successes, or failures of the country’s existing anti-corruption institutions. Such debates can only be based on comparisons, empirical evidence, analysis and dissection of existing realities, relationships, planning, leadership, functions, structures, success, and failures as well as their foundations. It is such a thoughtful analysis that can lead the government and society at large to trust or not such entities and identify the existing gaps that can move the anti-corruption struggles to the future.
The research upon which the present document is based utilised primary and secondary sources in South Africa and internationally and included the analysis of the fundamental structures and functions of three successful anti-corruption bodies in African states that incorporate education at all societal levels as integral components of societies based on ethics.
The key findings pinpointed the fact that the two basic foundations of a successful anti-corruption agency or council, are strong political will and well trained, highly educated and ethical personnel. It was agreed that there could be no successful fight against corruption without the strong support of society, communities and the government and all its institutions. This means that the combination of a political will and the appropriate and careful selection of new people in the proposed agency who undergo regular integrity testing and lifestyle audits can lead to success.
Within this context a careful analysis of the structures, functions, processes, relationships, mechanisms, leadership, political will, independence, priorities, challenges, and problems at all operational and institutional levels can be described as an important lesson for the future. The ethical culture through education to public service personnel at all levels as well as wider society is included in this effort.
Such a team with the characteristics as described above, comprising of a variety of committed members can be instrumental in creating the foundations of a common group understanding, cohesion, commitment and dedication based on ethics that can play an important role not only exposing, but also through planning, designing, preparing, and opening the appropriate path forward. Such a path is the way forward in the process of defeating the culture, planning and actions related to corruption in the public and private sectors and society at large. This is a process leading to the destruction of grand and petty corruption, tackled by a team that can become the key ingredient leading to the transformation, reformation, and re-shaping of an already advanced and multiple administration of justice against corruption, a multi-faced crime against South Africa and its people. Corruption is not only a national threat, but also the root of a daily refutation of the country’s Constitutional aspirations and the vision of the National Development Plan.
We need to have a second legal opinion included to either validate this or venture an alternative position. Should there be an alternative position, then we make the point thatthe issue be workshopped by the legal fraternity before finalising legislation because it needs to stay out of the courts.
A highly interesting position regarding the functions of the new council in terms of the ‘non-trial resolutions’ (NTRs) has appeared recently, a reality that has been described by international research of anti-corruption as a ‘possibility of been critical to the country’s proposed anti-corruption council’, despite the indisputable fact that there would be resistance, mainly because of the harsh reality that South Africa has been stripped of an estimated trillion rand as a result of graft.
Within this context an expert researcher on the issue Dr Abiola Makinwa, MICA, a Principal Lecturer in Commercial Law/Anti-Corruption Law, and Policy at the Law Department in The Hague University of Applied Sciences, has indicated that ‘traditional criminal prosecutions are time-consuming and susceptible to lack of political will and the influence of elites. The sentence was completed with the belief that ‘even when in a traditional court prosecution is successful, it may fail to take the money out of the crime, so the poverty trap continues.’
Inevitably such statements could sound and/or considered as both ‘generic’ and ‘ideological’ in nature but they are founded on scientific analysis and dissection of a multiplicity of legal and court reports internationally and in Africa. It has been shown empirically that throughout the world in the case of global powerful companies, out-of-court settlements would often take place. As official reports have shown leniency has been granted ‘upon the extent to which the company self-reports on acts of corruption and foreign bribery that an anti-corruption agency would not have discovered on its own.
It was thought that as ‘non-trial resolutions’ could be thought to be and escribed as the ‘new kids on the block’, and were being used successfully globally, an analysis of their processes could be useful for the new entity to study (Makinwa, A., 2021a; Makinwa, A., 2021b).
The success of NACAC can only become a reality under seriously and meticulously planned and implemented strategic, tactical and action steps that enable the creation of transparency and accountability. These attitudes and behaviour can guarantee the prevention of corruption risks in the public and the private sectors beginning with the careful and well-researched improvements in public finance, including serious attendance to supply chain and procurement realities at all government levels, political and private sector corruption, attention to corruption risks in all parastatals, as well as the police, intelligence, defences, and the health sectors.
One of the key steps leading to the success of NACAC is the creation and actions of an Inter-Agency Coordinating Council (IACC) organising the inter-agency sharing of strategic intelligence with the active participation of the police and national intelligence, and all anti-corruption agencies themselves. The effective cross-agency cooperation should be based on sufficient authority and resources, capacity and political backing to perform its mandates. (Koranteng, 2020).
Two Progress Reports per financial year will be instrumental in streamlining the monitoring process with the main aim to assess the appropriate planning, designing and implementation process of all 14 anti-corruption entities and the priority areas identified in the National Anti-Corruption Strategy 2020-2030 the existing Action Plans. Such a report will be the basis of identifying the achieved outcomes, the existing and future as well as existing challenges and gaps (Quah, 2015).
The relationship between the Monitoring Tool and the Progress Report will include the following realities: The Monitoring Tool identifies the targets, activities, the responsible agency, specific timeframes, partner/s and budget. It should be filled twice a year by the responsible agencies, including the non-governmental organisations who could be participants.
The ratings take two stages of assessments of the activities undertaken:
1. Stage 1: Assessment Rating:
1.1. activity is implemented to completion
1.2. activity implemented to a large extend
1.3. activity implemented only partially and
activity not implemented at all.
2. Stage 2: Status Assessment Rating:
2.1. no finalisation in the implementation process
2.2. implementation is ongoing till completion
2.3. partial or complete suspension of implementation
2.4. termination or finalisation of implementation.
Closure of the two stages.
3. Stage 3: Report and Process
3.1. Stage 3.1: Progress report and Monitoring Tool:
3.2. Final assessment is made by Secretariat and Progress Report is prepared
3.3. Progress Report is submitted to the ACC and adopted
4. Stage 4: Monitoring Report
4.1. The Report will be prepared annually by the ACC Secretariat so that the assessment of the implementation processes of the Action Plan activities and achieved results can be prepared
4.2. The Report will be based on the Progress Reports and Monitoring Tool submitted by the agencies that have the key responsibility biannually; consideration to the ratings will be paid attention to and studied thoroughly
4.3. Monitoring Report will be submitted to the ACC for adoption, to the President and Parliament. (Recanatini, 2011)
5. Stage 5. Evaluation Report
5.1. The Evaluation Report’s most important objective is the assessment of the achieved results prioritising the levels of efficiency, effectiveness, as well as the thorough analysis of the existing situation, the identification of problems, gaps, and challenges in the Action Plan implementation process.
5.2. The Evaluation Report will be prepared once in two years.
5.3. The Assessment of local and international organisation, international ratings, assessment of international and local organisations, research-based, official documents and relevant publications, in-depth interviews, meetings, and debates with representatives from responsible agencies, NGOs or experts will be used in this process.
5.4. The Evaluation Report will be submitted to the ACC, NACAC, the South African Parliament and the President (UNDP United Nations Development Programme 2011).
The planning, development and implementation of the Monitoring and Evaluation Framework is the foundation upon which NACAC will be enabled will to integrate effectiveness in the overall management framework, a positive way forward to success.
In the process of seeking continuous success in the fight against corruption, NACAC’s leadership and Secretariat should see as one of the key priorities from the beginning the creation, development, and continuation of a set of objectives, well-thought, comprehensive and reliable indicators enabling the assessment and measurement levels as the most important guide to the fulfilment pf the entity’s aims and objectives.
Given the existing Pan-African guidelines, laws, rules, regulations, and memoranda of anti-corruption agreements the participation of all organisations and entities the direct and continuous communication with key anti-corruption agencies and organisations is compulsory including the African Development Bank, the African Union Advisory Board on Corruption, the anti-corruption bodies of Sub-Saharan and Southern African countries and the United Nations Development Programme (UNDP). Common meetings, debates, exchange of ideas, conferences, and regular communication are or could be serious contributors in the development of effectiveness indicator/s. The key institution in such processes is the African Development Bank whose leadership is considered vital in the development and continuation of an African common effectiveness agenda (OECD 2017; NCPA 2019).
NACAC in collaboration with all key anti-corruption agencies are the foundations of the developmental path leading to strategies and tactics opening the paths of improved collaboration and coordination among all law enforcement agencies at country level and at regional level through multilateral cooperation. Such initiatives can be achieved through the introduction of regular meetings and follow-ups that are instrumental in ensuring one of the most important tools in understanding the dynamics of corruption and its types through the sharing of experiences and best practices against them. Contact with regional organisations and networks including civil society entities lead to expanded and useful relations and exchanges of research, ideas, realities, and knowledge and are instrumental in enriching new planning developments and ways forward to increasing innovation and effectiveness at all levels (World Economic Forum 2018; UNODC 2019).
In fact, one of the interviewees who considered himself very lucky to be a participant in regional conference and an integral part of the processes leading to formal resolutions after crucial debates, indicated that as NACAC will be an integral part of the African Union Summit, the SADC (Southern African Development Community) Summit and the Conference of States Parties to the United Nations Convention against Corruption (UNCAC), the possibilities for success and effectiveness multiply.
The creation of a new establishment like NACAC will inevitably create the hopes and aspirations for a new entity enabled to achieve results where others have failed and to meet all expectations raised by the country’s senior political and administrative leadership. It is within this context that it is the sheer responsibility of the leadership and Secretariat of the agency not only to achieve the effectiveness expected through its functions, but also the processes of evaluation that is the assessment of the processes and outcomes at all levels of institutional operations. The outcomes of such an exercise are rooted on the comprehensive pre-execution method of the measurements of achievements leading to excellence against goals, aims, objectives, milestones, and objectives. The processes leading to unsuccessful outcomes to be thoroughly researched in the effort to analyse and dissect the reasons which determine the causes and effects of the failure of operations, as well the policy implementation and tactics in terms of effective outcomes. Thus, eradicating corruption remains a very difficult and complicated challenge despite all sophisticated means provided by the state finance but can nevertheless be brought under control (Barrett, et.al 2020:75-76; Camperle, 2018:158-159).
The existing realities associated with countries throughout the world that are not as corrupt as the vast majority such as Singapore, New Zealand, Sweden, or Finland that are on the top of the widely acknowledged Transparency International Corruption Perceptions Index (CPI), a reality pointing to the truth that despite the success against corruption at least a minimal percentage of it will exist always.
To be ‘thoroughly effective’ in the fight against corruption is always considered a very important achievement because everything in life relies on existing comparisons. This is due to the fact that the lack of objectivity in comparisons has its own boundaries when it comes to functional, organisational, and institutional effectiveness in the fight against corruption (Schütte, 2017).
This means that it is relatively easy to compare countries in relation to their own economic and financial development, because such analyses and dissection are directly related with issues that can be scientifically calculated such as a country’s Gross National Product, growth rate realities or per capita income. ‘Successes within the parameters and the purpose of this study related directly and indirectly with NAPAC can be considered as ‘synonymous with effectiveness,’ a reality of the present and the future destined to be a new struggle for those involved (Kuris, 2015:127).
However, it needs to be said that while effectiveness indicators are synonymous with realities and parameters that pinpoint success or/and the extent to which the expected outcomes or pre-determined goals have been reached, such success is difficult if not impossible to achieve without strong and uncompromising political will steeped in honest and ethical leadership and the well-selected, honest, ethical, and trained personnel at all operational levels.
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This report has been published by the Inclusive Society Institute
The Inclusive Society Institute (ISI) is an autonomous and independent institution that functions independently from any other entity. It is founded for the purpose of supporting and further deepening multi-party democracy. The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values. In South Africa, ISI’s ideological positioning is aligned with that of the current ruling party and others in broader society with similar ideals.
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