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State capture is the buzz term in South Africa these days, thanks to explosive allegations that have erupted around President Jacob Zuma and the Indian Gupta family, who seem to have the keys to the South African government.
While the Guptas grab the headlines, for sensational shenanigans like landing a commercial planes carrying wedding guests at an armed forces air base, there’s a more ominous feature to state capture: the use of the criminal justice system to maintain a grip on political power. Dirk Kotze, a political scientist, explains how Zuma as well as former president Thabo Mbeki understand the benefits of harnessing institutions.
In Zuma’s case, the pattern goes something like this: uncover skeletons in the adversary’s closet – and if there aren’t any, build some up; get the law enforcers to talk about criminal charges being pursued against the adversary; get law enforcers to back down after you get your way.
Kotze’s analysis is a reminder why the National Prosecuting Authority’s boss Shaun Abrahams needs to be removed from his post if there is any hope of bringing to an end the mayhem that is characterising South African politics and damaging the country’s reputation among international investors.
It’s also going to be difficult to pursue crime charges against the corrupt while the criminal justice system is pliant in the wrong hands. – Jackie Cameron
By Dirk Kotze*
The withdrawal of charges against South Africa’s Finance Minister Pravin Gordhan by the country’s National Prosecuting Authority brings to mind events in 2008 when a judge quashed corruption charges against current President Jacob Zuma.
In his judgment Judge Chris Nicholson found that then President Thabo Mbeki had used state institutions to execute a political strategy to get rid of Zuma.
The judge quashed the charges of corruption, money laundering and fraud against Zuma, removing a major obstacle to his becoming president of the country.
Now, as then, state institutions – in particular the criminal justice system – are being abused in internal power struggles within the governing African National Congress (ANC) and the government. Zuma’s political survival is a core ingredient in both.
But he may have run out of road. Against the backdrop of the ANC’s mounting appreciation of its recent electoral losses, this could be the year that determines his immediate future.
But much more than the president’s future is at stake. The most significant long-term consequence of the machinations against Gordhan is the institutional damage caused to the priority crimes investigating unit of the police, the Hawks, and the country’s National Prosecuting Authority.
Their credibility in the public eye is at an all-time low. While the courts are being used by opposition parties and civil society to challenge abuses, the criminal justice system is being used by members of the government to protect their interests. This might in fact be the real “state capture” rather than crony relationships between businessmen and government officials.
How did it come to this?
Gunning for Gordhan
Gordhan’s woes began in earnest in February when the Hawks demanded his response to 27 questions about the erstwhile investigative unit at South African Revenue Services (SARS).
The questions centred around allegations that the SARS unit was engaged in rogue activities. Gordhan was the head of the revenue service at the time.
What followed over the next few months was a game of cat and mouse between the prosecuting authority and Gordhan. On May 20 the head of the Hawks, Lieutenant-General Berning Ntlemeza, confirmed that Gordhan was not a suspect in their investigation. His statement came as market sentiment towards South Africa intensified, threatening a downgrade of the country’s sovereign rating.
The game ended, however, on August 25 when the Hawks summoned Gordhan to their offices to sign a warning statement. He refused.
On October 11 he was summoned to appear in court. The summons was the fourth time this year that Gordhan had been confronted by either the Hawks or the National Prosecuting Authority.
Is there a pattern in these events?
I believe there is. And it has to do with the country’s National Treasury exercising its mandated independence. Efforts to thwart it began with the firing of then Finance Minister Nhlanhla Nene in December 2015. Subsequently, a crisis developed each time the Treasury intervened in the management of state-owned enterprises such as South African Airways, the electricity utility Eskom or the South African Broadcasting Corporation.
The question of Treasury doing its job – part of which is to ensure that taxpayers’ money is spent well and honestly – has also been inextricably tied up with the Gupta family’s patronage relations with Zuma. The country seems to have found itself in crisis mode whenever this relationship has come under the spotlight.
The most startling incident included a statement by Deputy Finance Minister Mcebisi Jonas that he had been approached by members of the Gupta family and offered the job of finance minister. This was while Nene was still in the post.
The Guptas’ contracts with Eskom about coal supplies and ownership of a mine also deepened the view that the Treasury was the only state institution which could arrest these developments, counter the patronage plague and reign in the Gupta business spree in state enterprises.
Gordhan appeared as the personification of the move to counter Zuma’s and Guptas’ designs on Treasury and a bulwark against fiscal ill-discipline, mismanagement of the state businesses. South Africa found itself in an unusual situation: a government minister had become the main counterbalance for the president.
Zuma’s strategy
Zuma’s apparent survival strategy in most instances is to look for a skeletons in the closet. In Gordhan’s case, he thought he’d found one in the allegations that SARS engaged in illegal intelligence activities, on Gordhan’s watch.
The strategy appears to work this way: whenever Treasury opposes a plan by Zuma, his allies in state companies and the Guptas the Hawks respond by making it known that they have resumed their SARS investigation. Then, once the issue has been resolved, as when Treasury relented and agreed to provide a loan guarantee for South African Airways, the Hawks investigation goes quiet.
This strategy reached a critical point when former Public Protector Thuli Madonsela indicated that her report into allegations that the Guptas had captured the state was ready for release.
The furore coincided with the Constitutional Court’s refusal to grant the National Prosecuting Authority the right to appeal against the “spy tapes” judgment, raising the possibility that Zuma could once again face charges related to allegations of corruption that were dismissed in 2008.
These two developments posed a real threat to Zuma. He had to do something. So, the resuscitation of charges against Gordhan in the hope that the fear of losing his position as finance minister would neutralise him.
State capture by the presidents?
The use of the National Prosecuting Authority and the police in ANC presidential and succession struggles has a decade-long history. What’s been different in the Zuma era is that a symbiosis has developed between the Hawks and the National Prosecuting Authority. This political contamination in their ranks is illustrated by the controversies around senior figures such as Glynnis Breytenbach, Johan Booysen, Anwa Dramat and Nomgcobo Jiba.
Pressing ahead with charges against Gordhan made one conclusion possible: Zuma had ultimately captured the Hawks and National Prosecuting Authority for his own political survival.
Abrahams’ withdrawal of the charges against Gordhan has strengthened Gordhan’s position immeasurably. And charging him again would create more risks for the National Prosecuting Authority. With the latest withdrawal Zuma has lost his bargaining chip against Gordhan. But that’s not to say that the game is over.
- Dirk Kotze, is Professor in Political Science, University of South Africa. This article was originally published on The Conversation.
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