We are in a moment which requires a willingness to re-examine and rethink some basic assumptions about the functioning of democratic societies in a globalised capitalist system which have been beyond question and scrutiny over the last 30 years. 

Such an openness of mind might well depend on whether our somewhat disparate efforts at a “refounding” and restructuring our democratic republic succeeds, or alternatively, whether we continue downward on the current dismal trajectory.

Three decades after South Africa’s democratic transition, we are at an inflection point – or perhaps even a moment of rupture, which contains within it the possibilities of both decline and renewal. 

Our democratic institutions and transformative aspirations face two serious threats: entrenched political corruption leading to elements of state failure, and deepening income and wealth inequality which many regard as being inconsistent with democracy’s egalitarian promise.

South Africa exemplifies trends towards democratic dysfunction, not in the form yet of growing authoritarianism, but rather of decay and incapacity evident in many countries both in the global North and South. 

What accounts for this pattern of degeneration of democracy?

Democracy everywhere is damaged by the epidemic of corrupt and self- serving leaders. 

Whether such political vices are inscribed in the crooked timber of humanity, and whether greed is also incentivised by the utilitarian criteria of monetary success in the current iteration of a market society – what Francis Fukuyama, who triumphantly announced the end of history some decades ago, now denounces as an aberrant, extreme form of economic liberalism turning democracy into a “Greedocracy” – is an important question to debate as we seek to renew the moral, cultural, material and institutional foundations of our democratic republic.

As we do so, we must rebuild our commitment to the cultivation of civic virtue, the pursuit of the common good and the constitutional protections of the rule of law, since experience has taught us that the “sins of incumbency” to which we are all prone requires that we shore up the ramparts of probity against our baser inclinations.

The original constitutional settlement, in a moment of high-minded ideals, may perhaps not have paid sufficient attention to the risk of political degeneration, and constitutional texts adopted in such moments – however prescient – do not by themselves guarantee good behaviour by political leaders in the presence of power and all its temptations, especially in a market society such as ours.

Why is political corruption a threat to democracy? 

How we answer this question depends on how we define corruption. It should not be assumed that the concept is self-evident and that we are all in agreement. It is essential to debate what is meant so that we can build the social consensus which is essential to effective and consistent collective action against corruption.

Various familiar forms of dishonest conduct worthy of condemnation occur every day at all levels of society in all kinds of private institutions and at all levels of the public service. But this is not the kind of corruption revealed by the Zondo Commission that has so scandalised us.

It is rather political corruption by persons in high office, elected to govern or appointed to senior positions in the public service, upon whose conduct and probity the proper functioning of our democratic institutions and the wellbeing of our society depends.

Persons who are elected to high office in a representative democracy are required to act faithfully at all times in the interests of the people and never in the interests of themselves as an elected caste of wannabe oligarchs and plutocrats. 

Visit Daily Maverick’s home page for more news, analysis and investigations

They should also never place themselves in a relationship of dependence on private economic interests or allow such interests to capture the democratic process for their own selfish ends.

When our representatives do so, they are acting in a way that is corrupt because such self-dealing conduct is inconsistent with the basic moral premises of our representative institutions based on popular consent and political equality, and therefore does great harm to the body politic. 

No relationship of trust between citizens and their representatives can be maintained under such circumstances.

And nominally democratic political processes, which are captured by vested interests, will not produce decisions and outcomes which are in the public interest. The inevitable result is the loss of public trust in their leaders and the atrophy of our democratic institutions.

Those appointed to senior positions in the public service to pay pensions, administer our schools and hospitals, and to procure goods like medicines and textbooks, to manage our railway system, ports, and electricity grids efficiently, are required to carry out their public duties in accordance with the law and for no ulterior purpose. 

When such powers are exercised with ulterior purposes at the behest of friends, family and business collaborators, or on the instructions of a self-serving minister, such powers are being exercised in a way that is illegal and corrupt.

It should be clear that in connecting the concept of “corruption” with the functioning of our democratic institutions and the administrative state, I take a broad view of conduct that should be condemned as corrupt. 

It is certainly not limited to what is sometimes called “quid pro quo” corruption (i.e. the direct exchange of a bribe with intent to secure a specific benefit, like kickback arrangements between government officials and contractors).

This kind of corruption is clearly indictable as a criminal offence, but it will often be difficult for the most competent prosecutors to prove, with the result that the guilty will often escape justice. At least some of the Bosasa bribes appear to fall into this category.

But the facts revealed by the Zondo Commission about Bosasa’s modus operandi, and the web of relationships established with politicians, can leave no one in any doubt that it created a fraudulent scheme of influence-peddling to secure the lion’s share of contracts in the Department of Correctional Services, even if it  turns out that it may not be possible to prove “quid pro quos” and kickbacks in each individual case.

Influence-peddling corrupts our democratic institutions even if the elements of a specific crime are not all present or provable in a court of law.

“Corruption” is not limited to blatant bribes and theft from the public purse. It encompasses many situations where politicians and public institutions serve private interests at public expense. That is why we need to establish ethical standards for those who are elected to represent us, apart from and in addition to the criminal law.

Those who have been following the so called step-aside debate in the governing party will understand that this simple proposition is one apparently fraught with difficulty and controversy among some of this generation of politicians, who are apparently unable to recognise conflicts of interest between their public duties and private interests – between the pursuit of the public good and rent-seeking malfeasance.

We need to institutionalise an integrity agenda to establish enforceable standards for all public officials and those who seek to do business with the state or improperly influence its decisions or the policy outcomes of the democratic process. 

This should include disclosure requirements and prophylactic rules governing “gifts”, for instance, enforced by an independent agency or ombud.

The current parliamentary system is inadequate because the responsible officials are parliamentary employees who are not sufficiently insulated from political pressures and are not adequately resourced.

In the wake of State Capture and the revelations of the Zondo Commission, we certainly need expedited prosecutions. 

So, we must rebuild investigative and prosecutorial capabilities which self-evidently were consciously dismantled to facilitate State Capture.

Experience has also taught us that where high-level wrongdoing is concerned, additional safeguards are required over and above the current constitutional provisions to ensure that prosecutions are instituted without fear or favour, and that dishonest politicians are not able to use their power or popularity to insulate themselves from accountability.

We are not the first jurisdiction to face this imperative, since experience has taught us that wherever there is power, there is also the risk of its abuse. Good power and bad power apparently always co-exist.

One possibility may be to consider a statute making provision for the appointment of Special Prosecutors, subject to some judicial supervision, to investigate credible evidence of an abuse of power in high office along the lines provided for by the Ethics in Government Act, which was enacted in the US in 1978 in response to the Watergate scandal.

However, when one has regard to the nature of political corruption, and corruption in general, it should also be clear that criminal law is poorly designed to reach all corrupt acts for reasons explored above. 

The Zondo Commission has also revealed how corruption became entrenched over time in many state apparatuses and the interface with the private sector, and involved multiple highly placed and well-resourced actors engaged in a pattern of systematic abuse.

What other measures are required to fight corruption effectively and proactively in addition to prosecution of individuals after the fact?

We may well need, in addition, to establish an agency independent of the executive branch that can actively engage the public. Mobilising public awareness and action is going to be crucial in the fight against corruption. 

The agency must also be equipped with effective investigative and enforcement powers as well as forensic auditing capabilities to act proactively where there is credible evidence of corruption in public institutions like hospitals, government departments, local authorities and so forth.

The rationale for the “all-of-society” comprehensive approach envisaged by the National Anti-Corruption Strategy adopted by the Cabinet should now be clear. It has six pillars, which include the promotion of an active citizenry, the professionalisation of the public service, risk management in organisations, the establishment of dedicated anti-corruption agencies, whistle-blower protection and procurement reform.

Implementation of the strategy over time is going to require determination, courage and political will.

Nothing less than the future of our democracy and our ability to tackle our many developmental, long-term and strategic challenges in an uncertain world is at stake. DM