Has our democracy been derailed by state capture?
And if it has, can it be put back on track, and how?
“Has the democratic project envisaged by our constitution been derailed?”
The head of the state capture commission’s legal team, advocate Paul Pretorius, raised this question in his presentation at the start of public hearings on Monday.He said this was the broader question signified by the terms of reference defining the work of the inquiry.
If the democratic project was derailed, the commission needed to answer whether it could be put back on track, and how, said Pretorius.
That is a tall order for a commission that has to wade through a mountain of evidence, examine numerous reports on investigations already conducted into state capture, interrogate a former president on the possible breach of his oath of office, and find a way to drag the fugitive Gupta family back to the country to answer the allegations against them.For many South Africans observing the commission, the concern is whether this inquiry will lead to people being held to account for the mass plunder of the state.
Deputy Chief Justice Raymond Zondo, who chairs the commission, said previously that the inquiry would cost the taxpayer R230m in the first six months alone.
With the inquiry expected to take up to two years, the total cost will be immense. It is appropriate, therefore, to determine at the outset what the point is and why the country needs to go through this process.
In his presentation, Pretorius spelled out what evidence the legal team intends to lead, including allegations of the Guptas’ involvement in the appointment of ministers, the awarding of state contracts favouring their businesses, and the knowledge and involvement of former president Jacob Zuma.
Pretorius also set out a series of interesting questions that give dimension to the phenomenon of state capture.
Among these are:
Was what occurred “a series of random and disconnected acts, or was it an organised and comprehensive manifestation of state capture”?
Was there “a deliberate weakening of constitutional government and a repurposing of constitutional state structures”?
Was there a deliberate attempt to shift political decision-making away from constitutional bodies?
Was there a systematic undermining of the country’s laws and principles?
Pretorius said the commission might also have to address to what extent prevailing laws and policies allowed the redirection of state funds and resources.
So it would seem that we are getting much more than we bargained for since the inquiry is not just about what the Guptas did, and the extent of the collusion with their political enablers and officials in state-owned entities.
It seems not even the governing party anticipated the deeper questions the commission will probe. If the commission follows the path that Pretorius spelled out, some serious questions will be posed about the ANC’s leadership abilities and accountability processes.
The weakening of government and repurposing of the state happened on the ANC’s watch, and the alarm bells had been ringing for years without any intervention from the party.
But the ANC seems to have a narrow reading of the purpose of the inquiry.In a statement on Monday, the ANC said the commission would assist “to ensure that where wrongdoing was done, appropriate action is taken and people are held accountable”.
From the experience of previous inquiries, the powers of the commission leaders are limited once the process is complete and they cannot ensure that their recommendations are acted on and people are held accountable.
That is up to the president, the police and the National Prosecuting Authority.
Even though the Gupta spell might seem to be broken, we are yet to see the criminal justice system becoming functional and the perpetrators of state capture being prosecuted.
The ANC has urged its members and others who are summoned before the commission to offer their full cooperation “so that the country can deal with this difficult chapter”.
Hopefully there will not be deliberate stalling and interruptions to frustrate the commission’s work.
It will be interesting to see how the ANC contends with the work of the commission as it examines whether the democratic project went off the rails, and whether it will accept responsibility for what went wrong.
The constitution, the laws of the country and the evidence presented to the commission by National Treasury official Willie Mathebula, show that rules do exist. Therefore, there has to be political accountability for the wilful flouting of the legal framework to give the Guptas carte blanche access to the state.Pretorius pointed out that state capture is not unique to SA and has manifested in many countries, particularly “democracies in transition”.
“Its prevalence and the apparent ease with which it appears in other democracies may sharpen our own vigilance in South Africa.”
One of the main purposes of a public inquiry was to “restore public trust and confidence in government”, said Pretorius.
The occurrence of state capture has severely damaged the image of government and the presidency, disillusioned many people, and made us despair about the state of politics. It showed how many people are willing to sell their souls and how those who bucked the trend got punished.
There is a lot of cynicism about the state capture commission, partly because of the lack of action after previous inquiries, and also because of its length and the costs involved.
But perhaps we should not write it off yet.
In the absence of any other process to determine how our constitutional democracy was perverted and things went so horribly wrong, the Zondo commission might turn out to be a valuable discovery process.
Hopefully, it could also point out what can be done to rescue our country from the infestation of corruption and help us find our way again...