Publication: Cape Times Issued: Date: 2004-07-28 Reporter: Judith February

A Litmus Test for SA Democracy



Cape Times

Date 2004-07-28


Judith February

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In 2001, the Institute for Democracy in South Africa (Idasa) said in its Interim Report on the arms deal that the way in which South Africa chose to deal with the allegations of corruption arising out of the deal would be a litmus test for our democracy. This has proved to be the case.

The allegations of corruption into the arms deal have placed pressure on the institutions established to promote and protect constitutional democracy in South Africa: the Public Protector, the Auditor-General, Parliament, its Standing Committee on Public Accounts and, recently, the National Directorate of Public Prosecutions (NDPP).

This week the head of the NDPP, Bulelani Ngcuka, resigned. This follows months of speculation regarding his position.

The scandal began in 2001 with the Joint Investigative Team's (JIT) report into the arms deal. One of the key findings of the JIT report was that there was a conflict of interest with regard to the role played by the chief of acquisitions at the Defence Department, Chippy Shaik, by virtue of his brother's interests in the Thomson Group (now Thales) and ADS, which benefited from the multi-billion rand deal.

Pursuant to this, Chippy was disciplined and his brother Schabir became the subject of investigation by the Scorpions. At the time there were vague rumours about the latter's relationship with Deputy President Jacob Zuma. Schabir has subsequently been charged with, inter alia, fraud and corruption. The charge sheet against him, however, mentions Zuma almost as many times.

So, prosecutorially and politically, it was a difficult call for Ngcuka to have made. In the now well-known statement of last year, Ngcuka said that while there was prima facie evidence against Zuma, there was not sufficient evidence for a "winnable case". This controversial statement led then to both the Public Protector and the Vadi committee having to deal with the matter in Parliament.

The drama reached its climax this week with Ngcuka's resignation - a move that has now prompted the inevitable "was he pushed or did he jump" question.

It is hardly likely that the public will ever know conclusively. But in matters like these, it is the public perception that counts most. It is crucial to the efficacy of institutions that the public perceive them to be impartial, independent and robust.

Ngcuka's successor will need to restore public confidence in the independence of the NDPP.

In this, Ngcuka's resignation is a setback, particularly since the Schabir Shaik trial, on which Ngcuka pinned so much of his robustness and reputation, has not yet happened.

The momentum and continuity of Ngcuka's pursuit of the matter must be maintained and the trial brought to its logical conclusion. For this case has, in the collective public mind, come to represent the degree to which the NDPP exercises its independence.

The broader question to be asked is whether it is practically possible to ensure that institutions of democracy are insulated from political pressures. Democracies are only as strong as the individual institutions of which they are made. And institutions are only as strong as their ability to deal with their most serious political challenge.

As was seen during the Public Accounts Committee deliberations on the arms deal, political pressures can have the effect of undermining the work of otherwise effective institutions. While difficult, insulating the Public Accounts Committee from political pressure may be easier than attempting to insulate an institution like the NDPP.

Ngcuka should not only be remembered for his role in investigating the arms deal allegations. Since 1998, he has shown himself to be effective and efficient while heading up the directorate.

This despite many who said that as an ANC "insider" he would not be able to do his job without compromising constitutional values.

The trial of Tony Yengeni, another casualty of the arms deal, illustrates Ngcuka's commitment to combating corruption, even where it involved high-profile politicians. The NDPP also has in place a competent staff whose positions will no doubt need to be consolidated in the months ahead.

So, while the individual heading up the institution remains key, building strong democratic institutions is also about separating the individual from the organisations they head up. The indicator of success is building capacity for independence and impartiality within the institution, regardless of the leader.

Having said that, however, leadership will be axiomatic in the months ahead. Whoever takes the position will need to act in a robust, independent and impartial manner.

Section 9 of the National Prosecuting Authority Act of 1998 requires, inter alia, that the person appointed be a "fit and proper person, with due regard to his/her experience, conscientiousness and integrity", and be admitted to practise law in the Republic. Perhaps, though, recent events have shown that anyone taking up the position needs to have sufficient political clout to navigate sometimes murky waters of prosecuting corruption wherever it may be found. Whoever the person is will need not only legal but also considerable political nous.

February is the head of the Political Information and Monitoring Service at the Institute for Democracy in South Africa (Idasa).

With acknowledgements to Judith February and the Cape Times.