December 17, 2017

Parliament tries its hand at a full-scale investigation into state capture

It’s a first for Parliament. Never before has a parliamentary committee had to conduct what amounts to a full-scale commission of inquiry.

Yet, that is exactly what the Portfolio Committee on Public Enterprises has found itself doing, and one has to wonder what Parliament had in mind when House Chairperson Cedric Frolick wrote letters to four committees singling them out to conduct Parliament’s very own state capture inquiry.

This came at a time when President Zuma was fully preoccupied with the need to prevent the recommendation by former Public Protector Thuli Madonsela for a commission of inquiry headed by a judge selected by the Chief Justice himself. Given the evidence that such an inquiry could turn up, the President had to find a way to say no, without being seen to be doing exactly that.

Was this perhaps Parliament’s unique way of solving his problem? Four separate committee inquiries was certainly an innovative way of implying presidential endorsement of an inquiry, while making fairly sure it was unlikely to succeed.

Was a four-committee inquiry going to be the answer to Zuma's problems?

Parliamentary committees are seriously under resourced, and have been from before the current fiscal belt-tightening. Vacancies among research, legal and administrative staff have left gaping holes in the institution’s capacity. Despite having full powers of subpoena, committee recommendations have to undertake a protracted route through both Parliament’s chambers before being considered enforceable and there is no guarantee that they will ever find their way to the National Prosecuting Authority.

Apart from law-making, committees are responsible for oversight of the executive and calling it to account, serving also as forums for citizens to participate in that. They are called the “engines” of Parliament because they are expected to drive the parliamentary process. But, to belabour the metaphor, without fuel the entire democratic process stalls.

House chairperson Frolick’s written instruction to the designated committees ‑ Home Affairs, Mineral Resources, Public Enterprises and Transport – were to engage with the allegations of state capture “within the parameters of the Assembly Rules governing the business of committees and consistent with the constitutionally enshrined oversight function of Parliament”.

This came nowhere near a legally constituted official commission of inquiry? Four months later the Home Affairs Committee has done nothing at all, the Mineral Resources’s investigation has so far been a stop-start affair that has not gone beyond a couple of meetings, and Transport appears to have veered entirely off track, leaving it to civil society to investigate illicit dealings involving PRASA.

But the Portfolio Committee on Public Enterprises may be just what South Africa needs to win back some public confidence in Parliament’s political will and ability to conduct effective oversight.

The usual parliamentary practise under the circumstances would surely have been the establishment of an Ad Hoc Committee into State Capture, which is what the official opposition repeatedly requested. Recently these have proved very effective and have delivered results, in the full glare of the public. The Ad Hoc Committee on the SABC Board Inquiry produced a fully functioning interim SABC Board that wasted no time in discrediting and removing Zuma proxies. The Ad Hoc Committee on the Funding of Political Parties delivered an excellent draft bill in record time, meeting Parliament’s deadline, while also proving to be a text-book example of active public participation.

The Acting Chairperson of the Public Enterprises Committee, who found herself in the unenviable position of inheriting this investigation when time was already running out for the year’s committee programme, also made the unarguable point that an Ad Hoc Committee would be the obvious option because it is provided with dedicated resources. It could also combine the work of four committees into one.

The proposal for a broader Ad Hoc Committee was put to the Chief Whips’ Forum for discussion, and ignored, which amounts to ignoring the opinion of 12 other parties representing millions of voters.

Written appeals were made to the House Chairperson and the Speaker of Parliament, but it took them so long to respond that the opposition was understandably becoming suspicious that this was nothing but an attempt to delay, and possibly avoid, the investigation altogether.

It was also unclear by what authority the House Chairperson had issued his instruction as his authority is limited to “implement[ing] policy or guidelines on the scheduling and co-ordination of meetings of all committees”. Committees of the National Assembly do not require an official go-ahead. They may initiate probes themselves or can be instructed to do so by the House, but the House Chairperson does not have that authority.

Frolick was unperturbed, His intention was clear and he wrote to the chairpersons requesting their “immediate engagement with the concerned ministers to ensure that Parliament gets to the bottom of the allegations”. No deadline was set. Frolick asked only that the four committees report their recommendations to the House urgently.

Yet by this point the Gupta Leaks had made it clear that more than four ministers were involved. The entire executive had to be held to account, including most importantly President Jacob Zuma, whose relationship with the Gupta family was at the very nexus of the state capture allegations.

It did begin to look as if Parliament was side-stepping the allegation of state capture, possibly intending to pass the buck to minor players, even junior department officials, while leaving the state-owned entities (SOEs) untouched and letting senior members of the Executive off the hook.

What about the departments of Finance, Cooperative Governance and Traditional Affairs, and Communications? For example, the probe in its current form cannot investigate allegations that former Minister of Communications Faith Muthambi sent confidential information on cabinet meetings to the Guptas.

How will this “probe” deal with suggestions that the Guptas appeared to be influencing Cabinet appointments. Is this parliamentary probe anything more than a damage control exercise? Are hearings in four seemingly arbitrarily-selected committees going to be able to wipe out the scourge of state capture?

So far, the only committee to respond to Frolick’s instruction, apart from a brief appearance of the Minister at the Mineral Resources Committee, has been Public Enterprises, but even that got off to a slow start, with on-off meetings and the Minister of Public

Enterprises, Lynne Brown, announcing that she intended holding her own inquiry.

Especially dispiriting was the negative response from the House Chairperson and Speaker of the National Assembly to the request from the Portfolio Committee on Public Enterprises for additional researchers and legal staff, and most importantly the assistance of Advocate Ntuthuzelo Vanara, Senior Legal Adviser at Parliament and SABC Ad Hoc Committee evidence leader. He was busy, they said, as Registrar of Members’ Interests. It took a lot of convincing until someone eventually agreed that this inquiry took precedence.

The Committee faced a daunting task. As Acting Chair Zukiswa Rantho pointed out, it was the first time that a Committee had been involved in such an investigation. She said at the time: “This Committee has [been given] the same resources as any other committee of Parliament, but because we have this huge job we need more resources. We need experts, people who deal with finances, people who deal with technical issues of law that we as parliamentarians don’t know.”

The outcome looked unpromising, especially as the months passed with no action. But what that didn’t take into account, however, was the fighting spirit of Rantho and her Committee. She galvanised her team with a moving speech in which she promised to work “ungodly hours” to “save our country [by making] sure our government is accountable”.

Party political differences have been put aside in this Committee, according to Rantho, as Members have agreed to work as a team in order to “not fail the nation... The Committee needed to have the inquiry, regardless of who did not want it”.

The Inquiry began at last on 17 October, and the rest is history. Or it will become a part of our history when the time comes to write it. As the nation learned of the billions drained from the state coffers to enrich a few, it also learned of how civil society can be effectively mobilised against corruption and how some representatives, including from the ANC, could show themselves determined to tackle state corruption.

Pro bono legal services were offered from leading solicitors, research capacity was mobilised from outside Parliament and public interest and support has grown massively. A citizen movement is gathering momentum and joining forces to support what Rantho promised would be the task of this Committee – to “save our country”.

But the whole matter remains rather messy. DA committee member Natasha Mazzone has reported that she has been threatened and intimidated. Her office was ransacked and her car followed. The DA now wants protection for its members of the Committee.

News emerged that State Security Minister, Bogani Bongo, tried to bribe the inquiry’s evidence leader to shut the process down. This led to some ANC Members calling for a police investigation into this allegation, while other ANC MPs demanded an audience with National Speaker Baleka Mbete to demand the opportunity to defend their peer, Bongo.

While the State Security Minister may end up being the subject of a police bribery investigation, the best Parliament’s ethics committee can offer is an inquiry into whether Bongo should be sanctioned as a Member of Parliament.

Black First Land First could not resist joining the fray, and sent its own letter demanding an end to the inquiry. At about the same time a cabal of ANC members demanded that the investigation be withdrawn, appealing directly to Luthuli House. In an unprecedented move they openly challenged their own Chief Whip Jackson Mthembu in an awkward public spat during a caucus meeting.

The struggle to release evidence leader Vanara to play his role brought him up against ugly accusations that his “manner and style of conducting the leading of evidence “are not constitutional. The Minister herself accused him of being unfair, and on behalf of the Department of Public Enterprises the State Attorney threatened to report Vanara to the Bar Council for unprofessionalism and failing to uphold the Constitution.

Parliament took legal advice from Adv Wim Trengrove who advised that the committee was acting fully in accordance with the Constitution. Members rallied to Vanara’s defence with the ANC’s Mondli Gungubele saying it was “embarrassing” that the State Attorney did not seem to have grasped the powers of Parliament. Nevertheless Vanara now has his own bodyguards.

Deputy Minister of Public Enterprises Ben Martins made comments about the Commission being a kangaroo court and accused Vanara of being unfair. This prompted ANC Whip Jackson to declare that he was convinced that the inquiry was being conducted fairly and in accordance with the legal requirements.

Meanwhile chairperson Rantho’s 17-year-old son was accosted by several men who told him “Your mother is making our lives difficult”. This comes after her husband was followed a few months earlier by men in a car near their Aliwal North home.

Complaints have been filed with the Speaker of Parliament demanding that Parliament fulfil its duty to protect its staff. Police will be called in to provide protection while a “threat assessment” is conducted.

Parliament's spokesperson, Moloto Mothopo said: “Any form of intimidation is a criminal offence in terms of the powers and privileges act and the perpetrators may be arrested and spend time in prison, so usually, when the Speaker gets these kinds of concerns she takes it very seriously.”

“Usually”? Let’s hope this is one of those times that she chooses to take it seriously.

The evidence from the State Enterprise Committee has so far been jaw-droppingly startling. Perhaps it’s a good thing that only one committee so far has shown itself willing to comply with its mandate to investigate state capture.

In an attempt to make sense of it all, a diary has been compiled of Parliament’s Inquiry into State Capture recording the unfolding of events so far.

Moira Levy

Last modified on Sunday, 03 December 2017 17:03

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