Address by the Public Protector Adv. Busisiwe Mkhwebane during the Annual UNASA Public Lecture on Monday, August 24, 2020

Programme Facilitator
UNASA Chairperson, Mr. Wandile Msomi;
Hon. Vuyolethu Zungula;
Distinguished guests;
Ladies and gentlemen

Good morning,

Let me start by thanking UNASA and the Nelson Mandela Bay University for the invite to play a part in this important dialogue. It is indeed an honour and privilege to be a participant, let alone be entrusted with responsibility to lead the discussions.

You have asked that I deal with the question: Should corruption be considered a crime against humanity? This is a very important but difficult question to answer. However, I will attempt to find the answer.

It comes against the backdrop of widespread public anger over alleged corruption pertaining to the procurement of Personal Protective Equipment (PPE). Week in and week out we read alarming allegations of corrupt tenders occasioned by the need to save lives against COVID-19.

So enormous is the problem that it has even captured international attention. World Health Organisation Director-General Tedros Adhanom Ghebreyesus labelled what is happening conduct tantamount to “murder” while answering questions about alleged graft here in South Africa.

What has fuelled public anger is the apparent heartlessness of those who are alleged to be involved. At a time when the nation is under attack from this silent killer, with many of our families, colleagues and friends having perished and many more fighting for their lives in hospital intensive care units, these unscrupulous business people and their collaborators unashamedly see an opportunity to pillage.

Of course, in all these cases, corruption has not yet been proven. Thus far, we have seen the Special Investigating Unit (SIU) securing through the Special Tribunal the freezing funds contained in the bank accounts of about 40 companies that are allegedly involved in questionable tenders in Gauteng.

The public anger against corruption has been bubbling under for quite some time. What we have seen in recent weeks is a culmination of the anger that has been building up from the pre-COVID-19 times.

According to Transparency International, corruption “erodes trust, weakens democracy, hampers economic development and further exacerbates inequality, poverty, social division and the environmental crisis”.

It says that the costs of corruption can be political, social, environmental and economic. In this regard, freedom, rule of law, citizens’ participation and trust in government, healthy environment and a sustainable future as well as opportunities to build and grow wealth are negatively impacted by corruption.

These and other factors may have played a central role in giving rise to the question: Should corruption be considered a crime against humanity?

To do justice to this question, the starting point should be the legal definitions of both a “Crime against Humanity” and corruption.

Let us start with “Crime against Humanity”. What does it mean?

The Rome Statute of the International Criminal Court, in paragraph 1 of Article 7, lists a number of offenses and states that the perpetuation of any of those offenses as part of a widespread or systemic attack directed against any civilian population, with the knowledge of the attack, can be defined as a Crime against Humanity.

Those offenses are:
a. Murder;
b. Extermination;
c. Enslavement;
d. Deportation or forcible transfer of population;
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
f. Torture;
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
h. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
i. Enforced disappearance of persons;
j. The crime of apartheid;
k. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Importantly, paragraph 2 of the statute provides that, for the purpose of paragraph 1, the ‘attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack.

In other words, for these offenses to count as crimes against humanity, there must be a state or organisational policy sanctioning such transgressions.

Hold that thought as we turn our attention to the legal definition of corruption.

What is meant by “corruption”?

A lot of the time, in South Africa, we hasten to label, incorrectly, any malady that we come across as “corruption”. We often refer wrongly to irregular, fruitless or wasteful expenditure or maladministration in the public sector as corruption. And yet the Prevention and Combatting of Corrupt Activities Act (PCCAA), in terms of which my office has the power to investigate corruption, defines corruption for us.

The definition is quite long and verbose. However, in essence, the PCCAA defines corruption as involving the influencing of a party by another to make a dishonest decision for gratification. This definition is similar to one by Transparency International, according to which corruption is “the abuse of entrusted power for private gain”.

For instance, a motorist who commits a traffic offense and pays a traffic officer a bribe (offered or solicited) to avoid a penalty is guilty of corruption and so is the traffic officer involved. Similarly, a businessman who pays a kickback or “facilitation fee” (offered or solicited) to influence the awarding of a tender is guilty of corruption just as the recipient of the kickback or facilitation fee is.

I emphasise the guilt of both the payer of the bribe and the recipient because corruption is a two-way street. There is the corruptor and there is the corrupted. Both these players perpetuate this crime.

South African legal framework to fight corruption

As a country we have a fairly strong safety net to cushion us from corruption. Leading the way is the Constitution of the Republic, particularly sections 16 (Freedom of expressing including freedom of the press), 84 (Powers of the President to appoint Commissions of Inquiry) 96 (Conduct of National Executive), 127 (Powers of Premiers to appoint Commissions of Inquiry), 136 (Conduct of Provincial Executive), 179 (the Prosecuting Authority), 182 (the Public Protector), 188 (the Auditor-General), 195 (Basic values and principles governing the public administration) and 217 (Public procurement), among others.

And there is the law: PCCAA (makes corruption an offense), Prevention of Organised Crime Act (self-explanatory), Protected Disclosures Act (encourages whistle-blowing), Witness Protection Act (self-explanatory), Financial Intelligence Centre Act (combatting money laundering and identification of proceeds of unlawful activities), Public Finance Management Act (effective and efficient use of resources), Municipal Finance Management Act (same as PFMA), Promotion of Access to Information Act (entrenches transparency) and the Promotion of Administrative Justice Act (for transparency and just/fair administration).

Institutions tasked with fighting corruption

To complement this elaborate legal framework, several institutions are established by the Constitution and statute to support efforts to fight corruption. Apart from obvious forums such as the judiciary, Parliament, the Prosecution Authority including the Asset Forfeiture Unit and the Witness Protection Unit, and the police including the Directorate for Priority Crime Investigation, there is the Public Protector (investigation of maladministration and corruption), the Auditor-General, the SIU, Commissions of Inquiry (although they exist for a fixed period) and the Anti-Corruption Coordinating Committee under the Department of Public Service and Administration.

In addition to these, a free press plays a critical role in shining the spotlight on all the shady events that take place under the cover of darkness. The news reports I referred to earlier bear testimony to this and a lot of the alleged rot which has been exposed in news reports helped the SIU with leads.

Policy

At policy level, government recognises that “[c]corruption undermines good governance, which includes sound institutions and the effective operation of government in South Africa” and that “[t]he country needs an anti-corruption system that makes public servants accountable, protects whistle-blowers and closely monitors procurement”. This is spelt out in Chapter 14 of the National Development Plan.

The NDP recognises law such as PCCAA and the Protected Disclosures Act as central to the combatting of corruption. It also recognise the Public Protector and the SIU as key players in the fight against corruption. It goes further to stress the point that such institutions ought to be “adequately funded and staffed and free from interference”.

Examples of notable cases of proven corruption in post-apartheid South Africa?

The criticism often levelled against the National Prosecuting Authority is that there is a low rate of successful prosecutions where high profile figures are involved. Except for the case of the late former national police commissioner Jackie Selebi, who was convicted in 2010 for taking bribes from drug trafficker, Glen Aggliotti and that of former Northern Cape MEC, John Block, who was convicted and sentenced to 15 years in jail by the high court in Kimberley in 2016 for corruption and money laundering, no other case involving a big name comes to mind.

A lot of the notable cases of alleged corruption are still before the courts and other forums, and thus have yet to be proven. This includes the Steinhoff fraud case, which has been described as the biggest corporate scandal in the country to date. As much as R20 billion rand in government pensioners’ money invested in Steinhoff through the Public Investment Corporation was lost.

But there are many other cases which have been tackled by other forums such as collusion cases involving the fixing of the price of bread by companies such as Tiger Brands. In addition, construction companies such as Aveng and Murray and Roberts, Group Five, WBHO were found to have colluded in the construction of stadia ahead of the 2010 FIFA World Cup. In the case of all these companies, collusion was proven and the Competition Commission imposed hefty fines.

What has been the cost of corruption in South Africa?

Total consolidated public procurement spending as a share of GDP in South Africa is expected to amount to R1.95 trillion in 2020/21, R2.04 trillion in 2021/22 and R2.14 trillion in 2022/23. The bulk of spending is allocated to learning and culture (R396.4 billion), social development (R309.5 billion) and health (R229.7 billion). In 2019, consolidated government spending reached a historic high of 36 per cent of GDP.
Statistics from the Public Service Commission show that public sector fraud cost the government close to R1-billion rand in 2011/2012: an increase from an estimated R130.6-million in the 2006/2007 financial year.

According to Global Financial Integrity, South Africa had suffered an illegal outflow of R185-billion due to corruption in the public sector between 1994 and 2008.

Mr. Willie Hofmeyr, then head of the Special Investigating Unit (SIU) told South Africa’s Parliament that between R25-billion and R30-billion of government’s annual procurement budget alone was lost to corruption, incompetence and negligence.

But, generally speaking, corruption steals from the poor. In the public sector, the poor looks to government to provide good quality services. However, more often than not, the poor get short-changed.

For instance, I recently gave the Municipal Manager of the Mahikeng Local Municipality 45 days within which to provide my office with an action plan for the completion a road construction project which was left unfinished nearly a decade ago and yet the contractor was paid R4.4m for the job.

This followed my office’s investigation of allegations that the municipality has, since August 2011, failed to complete the construction of an access road from Kaalpan to Nooitgedacht villages from gravel to tar.

I found that the erstwhile Head of the Department of Roads, Mr. AP Kembo, certified that the account was correct, that the service was rendered and that the charges were fair and reasonable.

I found that the community of Kaalpan has suffered prejudice as a result of the conduct of the municipality. The incomplete road is prone to flooding in rainy seasons. This posed a risk to the community and had the potential to cause damage to vehicles making use of the road.

I must emphasise that I did not make any findings of corruption. However, the evidence I found was so overwhelming that I directed the Municipal Manager to report the activities of officials who inspected the road and authorized that the contractor be paid while the road was incomplete to the DPCI.

In another case, in 2017, I found evidence of widespread irregular, fruitless and wasteful expenditure in the procurement of goods and services following my investigation of alleged misappropriation of public funds, improper conduct and maladministration by the Eastern Cape Provincial Government (ECPG) and several other organs of state in connection with expenditure incurred for the memorial and funeral services of the late former President Nelson Mandela. I found that such expenditure failed to meet the test of fairness, equity, transparency, competitiveness and cost-effectiveness.
Among other things, I found that the ECPG improperly diverted public funds amounting to R300 million from the Eastern Cape Development Corporation’s (ECDC) social infrastructure delivery programme towards the memorial and funeral services. The ECDC lost more than R22 million, which was originally appropriated for the acceleration of social infrastructure development in the province.

These are but a few examples of cases in which corruption or, at the very least, maladministration, steals from the poor. Whenever the resources that are meant for development – be it building of a school, healthcare clinic, a road of even PPE – the poor lose out.

This brings me to the big question.

Should or can corruption in South Africa be considered a Crime against Humanity?

Do people in the private or public sector engage in corrupt activities? Yes!
Has this corruption robbed or was it to the detriment of the civilian population? Yes!
Does this make corruption a crime against humanity? No!

For corruption in this country to be considered a Crime against Humanity, it will have to be state or organisation-sanctioned in line with paragraph 2 of Article 7 of the Rome Statute of the International Criminal Court.

As indicated earlier, that paragraph states that an “‘attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack”.

A simple example of this is apartheid, which was a policy of the erstwhile National Party government. A slew of laws were enacted one after the other to entrench this policy, which was later considered a Crime against Humanity.

We have already established that, the same cannot be said about corruption. It is not the policy of the post-apartheid, democratic government. In fact, as indicated, anti-corruption is government policy as can be gleaned from Chapter 14 of the NDP.

This is not to suggest that corruption should be taken lightly. Of course there must be a serious repercussions for the corrupt. They must be prosecuted, there must be convictions and the guilty must languish in jail. This goes without saying.

If corruption in South Africa does not qualify to be considered a Crime against Humanity, what must be done to bolster efforts to root out this malady?

We have laws and institutions. The problem is at the level of implementation. Often investigations have serious shortcomings, leading to unsuccessful prosecutions. Sometimes the cases don’t even get to court.

We also need to look into the protection and incentivising of whistle-blowers. Currently, it does not appear as though they enjoy adequate protection. A lot of them blow the whistle at their own peril – with possible suspensions, loss of their jobs or even attempts on their lives.

Thank you.

Adv. Busisiwe Mkhwebane
Public Protector of South Africa