Feasibility, Structure, and Functioning of the Proposed National Anti-Corruption Advisory Council

Report into the Feasibility, Structure, and Functioning of the Proposed National Anti-Corruption Advisory Council: Striving for a Corruption-Free South Africa

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Copyright © 2022 Inclusive Society Institute PO Box 12609 Mill Street Cape Town 8010 South Africa 235-515 NPO

All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means without the permission in writing from the Inclusive Society Institute.

DISCLAIMER

Views expressed in this report do not necessarily represent the views of the Inclusive Society Institute or those of their respective Board or Council members, the Stellenbosch University, or the Stellenbosch University School of Public Leadership.

JULY 2022

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Contents LIST OF ABBREVIATIONS ……………………………………………………………………………..…………………………………. 3 LIST OF CONTRIBUTORS …………………………………………………………………………………………………………………. 4 ABSTRACT .…………………………………………………………………………………………………………………………………….. 5 ABOUT THE INCLUSIVE SOCIETY INSTITUTE (ISI) …………………..…………………………………………………………. 6 ABOUT THE STELLENBOSCH UNIVERSITY AND THE SCHOOL OF PUBLIC LEADERSHIP (SPL) ………………… 6 STELLENBOSCH UNIVERSITY (SU) ……………………………………………………………………………………………………. 6 SCHOOL OF PUBLIC LEADERSHIP (SPL) …………………………………………………………………………………………….. 7 THEME 1: PRELIMINARY LITERATURE REVIEW AND INSIGHTS …………………………………………………………. 9 INTRODUCTION AND CONTEXTUAL OVERVIEW: SETTING THE SCENE ……………………………………………………………………… 9 CONCEPTUALISING CORRUPTION IN CONTEXT: TYPOLOGIES, FORMS, AND ACTS OF CORRUPTION ………………………… 10 AFRICAN ANTI-CORRUPTION ADVISORY BODIES: COMPARATIVE PERSPECTIVE ……………………………………………………… 13 RWANDA …………………………………………………………………………..……………………………………………………………………………… 14 SEYCHELLES ………………………………………………………………………………………………………………………………………………………. 17 BOTSWANA ………………………………………………………………………………………………………………………………………………………. 19 CONCLUSION …………………………………………………………………………………………………………………………………………………………. 22

THEME 2: RESEARCH METHOD, FINDINGS, AND ANALYSES ……………………………………………………………… 24 BRIEF OVERVIEW OF METHODOLOGICAL APPROACH, STRATEGY, AND SAMPLING …………………………………………………. 24 SUMMARY OF RESEARCH FINDINGS AND ANALYSES ………………………………………………………………………………………………. 24 CONCLUSION …………………………………………………………………………………………………………………………………………………………. 29

THEME 3: NACAC IN PRACTICE ……………………………………………………………………………………………………….. 31 NACAC COMPOSITION AND STAFF SELECTION CRITERIA ………………………………………………………………………………………… 31 NACAC’S AUTHORITY, MANDATE, AND RESPONSIBILITIES ……………………………………………………………………………………… 33 DESIGN AND FUNCTION OF A COORDINATING BODY ……………………………………………………………………………………………… 34 RESOURCES AND CAPACITY NEEDS ………………………………………………………………………………………………………………………… 36 CONCLUSION …………………………………………………………………………………………………………………………………………………………. 38

EXPERTS’ RESPONSES ANALYSIS …………………………………………………………………….………………………………. 40 CONCLUSIONS AND RECOMMENDATIONS ……………………………………………………………………………………… 56 CONCLUSION …………………………………………………………………………………………………………………………………………………………. 62

REFERENCE LIST ……………………………………………………………………………………………………..……………………… 64

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List of Abbreviations ACCERUS

Anti-corruption Centre for Education and Research of Stellenbosch University

ACCS

Anti-Corruption Commission of Seychelles

ACTT

Anti-Corruption Task Team

APRM

African Peer Review Mechanism

CECA

Corruption and Economic Crime Act 29, 2018

CPI

Corruption Perceptions Index

DCEC

Directorate on Corruption and Economic Crime

GSCID

Governance, State Capacity and Institutional Development Cluster

IACAB

International Anti-Corruption Advisory Board

ICC

Inter-Agency Coordinating Council

ISI

Inclusive Society Institute

ICTS

International Cooperation, Trade and Security Cluster

JCPS

Justice, Crime Prevention and Security Cluster

MFMA

Municipal Finance Management Act 56 of 2003

NACF

National Anti-Corruption Forum

NACS

National Anti-Corruption Strategy

NDPP

National Director of Public Prosecutions

NEDLAC

National Economic Development and Labour Council

NPA

National Prosecuting Authority

NRF

National Research Foundation

PDE

Procuring and Disposing Entities

PFMA

Public Finance Management Act 1 of 1999

PPE

Personal Protective Equipment

SADC

Southern African Development Community

SARS

South African Revenue Service

SDGs

Sustainable Development Goals

SONA

State of the Nation Address

SPL

School of Public Leadership

SIU

Special Investigating Unit

SU

Stellenbosch University

UN

United Nations

UNCAC

United Nations Convention against Corruption

UNDP

United Nations Development Programme

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List of Contributors The Inclusive Society Institute (ISI) in partnership with the Stellenbosch University School of Public Leadership (SPL) hosted a High-Level Dialogue on the Establishment of a National AntiCorruption Agency for South Africa, on 19 October 2021. This dialogue aimed to give direction to the research to be undertaken by the ISI and the Stellenbosch University School of Public Leadership.

The following experts contributed to the main aim of the dialogue and, in a larger sense, the direction of the feasibility research report:

Mr Daryl Swanepoel

Prof Zwelinzima Ndevu

Prof Evangelos Mantzaris

Inclusive Society Institute (ISI)

Stellenbosch University

Stellenbosch University

School of Public Leadership (SPL)

School of Public Leadership (SPL)

Prof Geo Quinot

Prof Hanns Bossert

Mr Johnny Douglas

Stellenbosch University

Academica University of Applied

Stellenbosch University

African Procurement Law Unit

Sciences – Netherlands

School of Public Leadership (SPL)

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KEY WORDS: -

Corruption

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South Africa

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National Anti-Corruption Advisory Council for South Africa; South African Anti-Corruption Strategy 2020-2030

Abstract In his State of the Nation Address on 11 February 2021, the President of the Republic of South Africa announced the establishment of a National Anti-Corruption Advisory Council (NACAC) for South Africa. The establishment of NACAC confirms South Africa’s commitment to the implementation of the United Nations’ Sustainable Development Goals (SDGs), Goal 16, which aims for peace, justice and strong institutions.

This report attempts to investigate the feasibility and possible structures of the proposed National Anti-Corruption Advisory Council for South Africa. The first section of the report compares and draws lessons from three African countries internationally recognised to be amongst the least corrupt in the world. It considers the structure and operation of their anti-corruption institutions and includes an assessment of their effectiveness in combating corruption.

In the second section, the findings of the qualitative research conducted, which considered South Africa’s unique socio-political context, are presented. Eight expert leaders based in the public sector, business community, and civil society were purposely sampled to participate in openended interviews based on key issues related to the structures, processes, realities, and expectations of the proposed new body.

Finally, section three presents an informed attempt to chart what NACAC could look like after considering the research findings and best practices from the case studies found on the African continent. It unpacks the practical steps that need to be taken to implement a fully functioning and successful anti-corruption institution that is fit-for-purpose for the South African context.

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About the Inclusive Society Institute (ISI) The Inclusive Society Institute (ISI) is an autonomous and self-standing institution that functions independently from any other entity. It was founded for the purpose of supporting and further deepening multi-party democracy.

The ISI’s work is motivated by its desire to achieve non-racialism, non-sexism, social justice and cohesion, economic development and equality in South Africa, through a value system that embodies the social and national democratic principles associated with a developmental state. It recognises that a well-functioning democracy requires well-functioning political formations that are suitably equipped and capacitated. It further acknowledges that South Africa is inextricably linked to the ever-transforming and interdependent global world, which necessitates international and multilateral cooperation. As such, the ISI also seeks to achieve its ideals at a global level through cooperation with like-minded parties and organs of civil society who share its basic values.

About the Stellenbosch University and the School of Public Leadership (SPL) - Stellenbosch University (SU) Stellenbosch University (SU) is home to an academic community of 29 000 students (including 4 000 foreign students from 100 countries) as well as 3 000 permanent staff members (including 1 000 academics) on five campuses. The historical oak-lined university town, which lies amongst the Boland Mountains in the Winelands of the Western Cape, creates a unique campus atmosphere, attracting local and foreign students alike. On the main campus, paved walkways wind between campus buildings – some dating from previous centuries; others just a few years old. Architecture from various eras attests to the sound academic foundation and establishment of an institution of excellence. This, together with the scenic beauty of the area and state-of-theart, environmentally friendly facilities and technology, as well as visionary thinking about the creation of a sustainable 21st-century institution, makes for the unique character of Stellenbosch University.

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- School of Public Leadership (SPL) The Stellenbosch University, through the School of Public Leadership (SPL), is a leader in learning for sustainable African and global futures. The SPL is unique in the South African context with its combination of Public Governance, Environment and Sustainability as strategic focal points. These three foci also provide the rationale for the three postgraduate programmes in Public Policy and Management, Environmental Management, and Sustainable Development. SPL’s business vision and mission, with “Learning for sustainable African futures” as its slogan, can best be understood and summarised as serving public value in an African context.

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THEME 1: Preliminary literature review and insights Introduction and Contextual Overview: Setting the Scene In his delivery of the 2021 State of the Nation Address (SONA), President Cyril Ramaphosa identified the government’s focus as concentrating on four pillars decisively dealing with Covid19, job creation and inclusive financial growth, acceleration of the country’s economic recovery, and the fight against corruption. It became evident in the speech that the fight against corruption is instrumental in achieving the success of the other fundamentals and its realisation at all levels is the key to government’s efforts to revive hope to the people for a better future.

His brave acceptance of the fact that the government’s reputation has been dented for years because of widespread corruption at all government and societal levels, led to the announcement of what has been described as a new feasible step forward in the fight against extensive corruption within the public sector ranks.

As the Honourable President Mr Cyril Ramaphosa stated: “We will shortly be appointing the members of the National Anti-Corruption Advisory Council, which is a multi-sectoral body that will oversee the initial implementation of the strategy and the establishment of an independent statutory anti-corruption body that reports to Parliament.”

The indication and belief that such a fight against corruption could only be successful when the whole of society becomes an integral, collective part of the effort leading to a strengthened rule of law, was at the heart of the President’s speech. It was stated that the processes of increasing accountability amongst senior government leaders would be rubber-stamped immediately through the signing of a performance agreement with all ministers before the end of February, a measure that would reach the country’s public.

In the announcement of the new National Anti-Corruption Advisory Council, it was characterised as a multi-sectoral body that will oversee the initial implementation of the strategy and establishment of an independent statutory anti-corruption body that reports to Parliament. This was followed by the promise that well planned and decisive investigative action would be undertaken against corruption in the procurement processes and outcomes of Covid-19-based

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goods and services. The beginning of such an anti-corruption journey was initiated by the authorisation of the SIU (Special Investigating Unit) to commence with and complete the investigations of all allegations and evidence of unlawful conduct that took place at all levels of Covid-19 supply chain and procurement structures and processes – by all government spheres and state bodies – during the national state of disaster. It was officially stated at the time, during SONA, that the SIU had finalised investigations into 164 contracts with a total value of R3.5-billion (Ramaphosa, 2021).

These initiatives were supported by the creation of a fusion centre, where representatives of all key law enforcement agencies gather, debate, and share information and resources. It was shown that the establishment has been successful in the fight against corruption, as it has delivered a large number of court cases and achieved the preservation and recovery of millions of Rands in public funds.

Beyond this, South Africa as a signatory to intercontinental treaties and conventions on societal aspirations – such as Goal #16 of the Sustainable Development Goals (SDGs) of the United Nations (UN), and continental conventions such as the African Charter on Values and Principles of Public Service and Administration – is bound to continually improve its anti-corruption efforts to achieve the planning, designing, and implementation of an honest, transparent, and good governance ethos in running its state affairs.

Conceptualising Corruption in Context: Typologies, Forms, and Acts of Corruption Though the phenomenon of corruption is as old as human history, it only received attention after a few years into the democratic dispensation – understandably so, as South Africa was managing the bigger political project of democratic transition and the change of power. The Department of Public Service and Administration (DPSA, 2002) was the first government department to initiate an anti-corruption strategy. Within it, a number of corrupt acts were identified as types and manifestations of illegal actions (abuse of power and privileged information/insider trading; bribery, conflict of interest; embezzlement; extortion; favouritism; fraud and nepotism). Since then, numerous efforts have been coordinated to rid the country of corruption. Amongst others,

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a series of reports from the empirical research conducted by the Public Service Commission (PSC, 2008; 2011a) entitled The Most Common Manifestations of Corruption were published.

The findings included: •

Abuse of government resources

•

Appointment irregularities

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Criminal conduct

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Fraud and bribery

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Identity document fraud

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Mismanagement of government funds

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Procurement irregularities

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Reconstruction and Development Programme (RDP) housing irregularities

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Gross negligence

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Misappropriation, theft, and financial mismanagement; and

•

Social grant fraud.

The foregoing list is a stark reminder that corruption is multifaceted in nature. It therefore needs to be dissected if it is to be understood to its core. In the process of continuous empirical research on the subject matter for over a decade, the Anti-Corruption Centre for Education and Research at Stellenbosch University (ACCERUS) has developed a wide range of both specific and ‘general/collective’ types of ‘common’ and ‘sophisticated’ corrupt acts as listed below: •

Asset misappropriation is associated with theft that comprises a variety of actions such as extraction from cash deposits; asset purchases; theft of tangible assets; cash on hand, from cash deposits received; transactions in foreign currencies; unrecorded cash transactions; inventory and other assets (e.g., stocks); use of organisation’s equipment (or staff); asset transfers; inventory schemes and movement of assets for private purposes.

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Bribery is one of the world’s most common and serious forms of corruption and is pervasive – in both big and small acts – in the public sector. While it is probably most prevalent in the supply chain and procurement process transactions, it is in fact also found in many other areas of corruption in the public sector (MBPC, 2016). It entails an act or

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attempt, by way of a gift of money or other inducements, to dishonestly persuade someone (or a group of persons) to act in one’s favour.

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Bureaucratic corruption is an act associated with public servants who operate at various organisational and professional levels and abuse their positions for their own personal benefit (Gans-Morse et al., 2018:173-174), or that of their associates, without overt gifting.

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Computer/IT fraud/corruption (cyber-crime) is a generic concept used to describe criminal activities carried out by means of computers or the Internet.

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Creditors’ corruption is consisted of, amongst others, double billing; fraudulent disbursements/payments; overpayments; shell companies; fraudulent credit notes; mispricing; and false refunds (Leuthner, 2016).

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Debtors’ corruption acts are related to discounts; false invoices; payment diversions; sales schemes; unrecorded or under-recorded sales; invoice kickbacks; refunds and credit notes; a variety of bribes and short deliveries (Gilander & Neselevska, 2017).

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Economic and financial corruption cover a wide spectrum of offenses, inter alia, financial crimes committed by banks, insurance companies, tax evasion, illicit capital havens, money laundering, as well crimes committed by public officials (such as bribery, embezzlement, traffic of influences, etc.) either to benefit unduly personally, or benefit organisations.

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Employee-related fraud/corruption is characterised by a wide variety of acts such as irregular loans; fake educational qualifications; payroll/remuneration schemes; irregular bonuses; falsified curriculum vitae; irregular promotions and bonuses; duplicated reimbursements; department credit cards for personal use; falsified wages; nepotism; fictitious expenses; patronage use; fraudulent travel and subsidy claims; backdating salary increases; a variety of misrepresentations of relevant personal information; illegal gratuities and expense reimbursement schemes (Woods & Mantzaris, 2012).

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Grand corruption occurs at the highest levels of political and administrative leadership and management as well as groups who, in most, if not all cases, use the privileged information at their disposal to take advantage of the laws, rules, and regulations gaps and anti-corruption agencies’ lack of capacity, weaknesses, and structural and functional inadequacies (Bauhr & Charron, 2017:416-417).

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Management fraud is perpetrated by a wide range of managers who become directly and indirectly involved with most, if not all, acts of corruption mentioned above purely by

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having both access to information and power to act and influence the course of events to their favour. Such fraud is also synonymous with “fraudulent financial statements” (Mbaku, 2007).

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Petty corruption is generally associated with corrupt practices by lower- and middle-grade public servants who, in most instances, deal with the public on a daily basis (also described as ‘survival corruption’) (Stahl et al., 2017(a)).

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Political corruption, inevitably the most debated corruption reality in South Africa, Africa and globally, is associated with politicians’ greed, avarice, irregular and illegal actions at various levels of position and authority, from the president to a municipal councillor.

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Principal-agent-type corruption is the idea, planning and implementation of actions which provide an opportunity for ‘middlemen’/‘agents’ to facilitate deals/transactions in the public service terrain. The employed agent can either be an internal or external party to the entity but will naturally have the power to sway influence (GAB | the Global Anticorruption Blog, 2015).

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Procurement fraud is related to a very wide range of manipulated, inter alia, “preferred and ghost service providers” to direct the procurement processes toward a pre-emptive conclusion; many forms of bribery through mediators; violation of “preferential procurement” and falsified “broad-based black economic empowerment” arrangements; fictitious quotes and invoices; ghost suppliers and purchasing schemes (Mantzaris, 2014(a); Mantzaris, 2014(b)).

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“Quiet” service has been described as a low-level form of corruption under circumstances where public servants fail to deliver the service they are paid to deliver, such as medical doctors’ or nurses’ absenteeism or drugs embezzlement from public hospitals (U4, 2017).

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Systemic corruption is rooted in inadequacies, weaknesses, and state institutions’ incapacity of organisational systems, structures, and processes. In most instances, it is encouraged by the lack of transparency, integrity, accountability, and acts of impunity as well as authoritarian and/or monopolistic power relations (Laver, 2014). It is synonymous with state capture.

African Anti-Corruption Advisory Bodies: Comparative Perspective In an effort to learn from existing bodies of research and work done in the anti-corruption domain, three African countries that are internationally recognised to be amongst the least corrupt in the

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world and on the African continent, have been purposively selected as case studies from which to compare and draw lessons that could inform the proposed NACAC. These countries are Rwanda, Seychelles, and Botswana.

RWANDA The Rwanda Anti-Corruption Advisory Council was established in 2014 and has played an important role in the fight against corruption in the country. The Council comprises the Chief Ombudsman (the Chairperson), Director

General

of

National

Intelligence and Security Service, Minister of Local Government and Justice, two Ombudsman Deputies, the Inspector General of Rwanda National Police, Vice President of the Supreme Court, Prosecutor General, State Finance Auditor General, Executive Secretary of Rwanda Public Procurement Authority, representatives of the Civil Society Platform, and the Chief Executive of the Private Sector Federation.

The Rwanda Anti-Corruption Advisory Council was initially based on a continuous initiative communication campaign led by senior ministers, the country’s ombudsman, and highly placed officials. The campaign covered the entire country and was reported daily on radio, television, and social media. Furthermore, all the Council members communicated daily with the media, private sector, and civil society, convincing them to become active against corruption and mobilise their communities and constituencies to grow to be an integral part of the effort. The Council operates at National level but is also decentralised at District, Sector, and Cell levels (Government of Rwanda, N.d.).

These significant initiatives took place in the country at a time when it was already considered amongst the least corrupt globally. In the 2014 Transparency International Corruption Perceptions Index (CPI), Rwanda was one of Africa’s five least corrupt nations. Consequently, 97.3

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per cent of the population expressed confidence in the government’s efforts to fight corruption, according to the 2014 Rwanda Bribery Index, which was conducted by Transparency International Rwanda chapter (Transparency International Rwanda, 2014).

In the Transparency International CPI, Rwanda had a score of 54, ranking as the third-least corrupt country in Africa. The country’s prosecutor general at the time revealed that the prosecution office had filed 155 cases of corruption in courts, of the 225 cases reported in the fiscal year 20132014. The Transparency International 2020 results showed that the country’s score increased from 53 to 54 percent, which placed it at 49th on the global ranking (from 51st in 2019), retaining the lead in the East-African region as the least corrupt (Transparency International, 2020).

The country’s civil society leadership was encouraged to cooperate with the Council in an effort to sensitise the general public towards the consequences of corruption, and research and reports of corruption to the police, National Public Prosecution Authority, and the Office of the Ombudsman. The Council’s key responsibilities at the national level include: research and reports/opinions on strategies against corruption; thorough study and research of all reports that emanate from anti-corruption institutions and recommendations to advance the fight against corruption; maintain continuous channels of information exchange on corruption between institutions; research, assess, and evaluate all reports that emanate from organisations regarding corruption in Rwanda and recommendations that are based on their positions, planning, and implementation of all processes resulting in the approval and publication of an annual report of the achievements in the fight against corruption in Rwanda (Sebudubudu, Khatib & Bozzini, 2017).

Members of the National Advisory Council meet on a quarterly basis and report directly to the President of the Republic, and present copies of all meetings, discussions, and decisions to Parliament, the Supreme Court, and the Cabinet. The Council’s Technical Committee comprises technicians from institutions led by members of the Advisory Council at the national level. The Office of the Ombudsman is responsible for the Advisory Council Secretariat at the national level.

Thus, in its structure, the Secretary of the National Advisory Council fights corruption and injustice. International comparative research has conclusively revealed that the success of Rwanda’s government against corruption cannot be underestimated and the key reasons for such

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a reality lies in the government’s anti-corruption initiatives, plans, and action at all levels (BaezCamargo et al., 2017; Sebudubudu, Khatib & Bozzini, 2017).

Baez-Camargo and Tharcisse (2018:26) recently postulated that empirical research and evidence overwhelmingly suggests that petty corruption as a normalised practice has been eliminated in Rwanda. Such observations highlight the fact that Rwanda’s trajectory is being widely and globally recognised. Moreover, the country is on par with a very small number which have achieved a substantial reduction in levels of corruption in the last 30-40 years (Mungiu-Pippidi & Hartmann, 2019). In fact, empirical research has further conclusively shown that in less than 20 years of high levels of corruption, Rwanda has achieved successes and brought the country on par with ‘middle income’ countries.

During this 20-year period, the anti-corruption efforts concentrated on the reduction of administrative corruption – the primary terrain of the scourge in a society struggling to overcome a destructive genocide and civil war of major proportions. The success achieved under a seriously coordinated effort has been instrumental in increasing the developmental levels of the economy and the country’s fiscal stability. Such a success against a grave economic and social pandemic does not imply that administrative corruption does not exist at all. However, the relentless advancements at all levels (careful investigations, persistent public servants training, community communication and support structures, committed alliances with civil society, highly skilled anticorruption methods, and punishment of the guilty) has moved the country’s public sector forward.

Rwanda’s law-abiding public sector, which is rooted in solid and diversified legislation, is the reward of a journey along an arduous road. Internationally, it is recognised as a significant developmental achievement which can be utilised as a guide going forward for countries facing substantial struggles in their efforts to defeat corruption. For this aspiration to be realisable for many countries, the fight against corruption can only succeed through honesty, accountability, transparency, education, effectiveness and efficiency, strong public sector authority and competency, and cooperation, synergy and a persuasive understanding between public and private sectors, civil society, and all sectors of the country’s population (World Bank, 2020).

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SEYCHELLES The Advisory Council of the AntiCorruption Commission of Seychelles was established in 2016 and comprises four members. Its primary aim is to oversee the Commission’s administrative policy and review provisions of laws contributing

to

the

prevention

of

corruption. The Council has the authority to investigate, detect, and inhibit corrupt practices and, according to its founding law, it is a neutral, independent, and self-governing entity, which is not subject to the direction or control of any person or authority.

The body also makes recommendations to the President for effective implementation of existing and new legislation. The founding four members of the Council were appointed following a thorough and detailed interview process. The new group members of the Council were announced in September 2021 (Sedrick, 2021).

The Advisory Council derives its work from its independent ability to investigate, detect, and inhibit corrupt practices. The work encompasses a wide variety of multi-dimensional research initiatives and direct assistance at all levels of operations undertaken by the primary anticorruption body; the Anti-Corruption Commission of Seychelles (ACCS), which was also established under the Anti-Corruption Act in 2016.

In this process, the Council is responsible to provide research, analysis, and recommendations which facilitate the Commission’s functions, processes, and operations in terms of: •

Filing cases on the basis of enquiry or investigation

•

Conducting investigation of offences

•

Conducting cases

•

Performing functions assigned to the Commission by the existing Acts

•

Holding enquiry into allegations of corruption

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Reviewing and recognising laws for the prevention of corruption and submitting recommendations to the Commission

•

Raising awareness and promoting the values of honesty and integrity amongst all communities, with a view to prevent corruption

•

Organising seminars, symposiums, and workshops on the subjects falling within the Commission’s functions and duties

•

Identifying causes of corruption in the context of the country’s socio-economic conditions

•

Determining the procedures of enquiry, investigation, and filing of cases

•

Investigating a public officer’s conduct that the Commission has reasonable grounds to believe is connected with corrupt practices

•

Coordinating and cooperating with other institutions authorised to investigate, prosecute, prevent, and combat corrupt practices

•

Guiding implementation of an integrated approach leading to the eradication of corruption

•

Consulting, cooperating, and exchanging information with appropriate bodies internationally that are authorised to conduct inquiries or investigations in relation to corruption

•

Adopting and strengthening mechanisms for educating the public to respect the public good and public interest

•

Developing educational and other programmes in collaboration with the media

•

Promoting an environment for upholding ethics in governance; and

•

Disseminating information and sensitising the public about the negative effects of corruption.

Members of the Advisory Council travel regularly to attend international conferences that address anti-corruption state issues, to network, draw insights, and share knowledge. Furthermore, their strategy and tactics, in terms of examination of complaints and evidence in their duties, have been described as slow, complex, and meticulous, leading to an appropriate assessment for submission to the main body. Though it has been mentioned that such a process has been successful, on occasion, external pressures exert a strong influence, resulting in fear of failure.

By ensuring appropriate procedures are adhered to despite pressures, at the end of the process the evidence is often much stronger. This goes beyond the national context. Following the correct

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international protocols has been described as the best guarantor of being on the correct path towards the next stage of an investigation. One of the body’s acknowledged achievements has been the launching and development of a comprehensive educational and awareness campaign to rally society behind the efforts. Such initiatives have a direct multidimensional impact on all sectors of the country, including the youth, civil society, private sector, and the public sector.

Utilisation of all media to strengthen public relations in order to educate the public about corruption has been considered successful. One of the leading factors that contributed to this success is the active cooperation, coordination, and synergy of the Advisory Council with all the government departments, entities, independent bodies as well as civil society and the private sector. It is believed that the country’s existing legislation provides sufficient opportunities and access to authority for members of the Council when the need arises, to scrutinise confidential agreements as well as records, books, reports, returns, and other documents that relate to the work of any public or private body (U4, 2020).

Seychelles has a score of 66 and is in position 27 on the Transparency International Corruption Perceptions Index 2021 – and is recorded as the number one least corrupt African country.

BOTSWANA The Directorate on Corruption and Economic Crime (DCEC), the most important anti-corruption body

in

Botswana,

bears

similarities with the future South African National Anti-Corruption Advisory Council, as it also initially begun as an advisory state entity before a fullyfledged body with necessary institutional authority. It was established in 1994 to combat corruption through thoroughly researched investigations, prevention, and education. The entity operates under the President's

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Office and is not formally independent; though its staff are subject to public service regulations and independent of citizen oversight committees (Isbell, 2017).

Its founding was based on a government decision to turn the tide, described as a very decisive moment by observers, following a well-publicised series of high-level corruption events in the country, which had a reputation for solid governance. The events created a public outcry amongst Botswana’s citizenry to the point where it was impossible not to act. The outcries coincided with the outcomes of the 1994 Corruption and Economic Crime Act (CECA), which re-categorised new forms of corruption, and passed most of the anti-corruption responsibility to the new DCEC from the hands of the country’s police force (Isbell, 2017).

An analysis of the Directorate’s anti-corruption philosophy has revealed that the unit, since its establishment and inauguration, has morphed into a highly efficient institution with mixed results.

The educational programmes have reached the country’s population, including those in the farflung corners of the rural lands, while its investigative efforts are widely criticised for a number of reasons after high-profile corruption cases were unsuccessfully prosecuted in court – as opposed to the successes involving petty corruption. This is attributed to the fact that prosecution evidence presented was purely based on advice without rigorous legal analysis, and that the entity was, in its ‘first level’ phase, seriously understaffed. The subsequent legislative reforms – transformation of the entity’s role which began in 2010 and beyond – changed the institution’s path to anticorruption success (Kuris, 2013).

At first the key responsibilities of the DCEC were related to the promotion of ethical behaviour in public service organisations based on codes of conduct, maintenance of transparency, rule of law, and good governance at all levels of corruption prevention interventions. They were later expanded to encompass wide-ranging responsibilities, duties, powers, and operational independence. These were concentrated on three key strategies: investigation, prevention, and public education. Its members had the power to search, extradite suspects, seize, and freeze assets, arrest, confiscate travel documents, and recommend prosecutions to the Directorate of Public Prosecutions, which controlled all prosecutions (Nwokorie & Viinamäki, 2017).

As time passed, these initiatives proved instrumental and decisive in the fight against corruption because of the close relations of the body with a wide variety of stakeholders won through the

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activities of the DCEC leadership. This fact of a societal united front proved to be a key element as NGOs, community watchdog bodies, whistle-blowers in both the public and the private sectors, and citizens became allies of the state institution; assisted by a number of specialist anticorruption units set up in all ministries involved with preliminary investigations of possible offences in their domains (Sebudubudu, 2003:126-127).

In the latter years of the 21st century, international organisations considered DCEC to be the best anti-corruption agency in Africa. It was successful in both the prevention, education as well as positive outcome in the alliance with all anti-corruption state institutions to strengthen accountability and transparency in the country. One of the differences between the Botswana anti-corruption public leaders and those in many African countries has been the open and transparent connection and collaboration with intellectual and research-based think tanks such as BIDPA (Botswana Institute for Development Policy Analysis), instrumental in the designing and development of a national anti-corruption policy framework (Kuris, 2013).

The planning and implementation of its three-pronged strategy starts with the prevention of corruption, which is preceded by a process of thorough investigation of existing loopholes and their detection; investigation of suspicious transactions and economic crimes at all levels; and finally, the file/s submission to the DPP when sufficient and irrefutable evidence has been collected. Public education is a complementary strategy but is as vital as the others. To achieve these, the DCEC has been well-resourced and works meticulously with all judicial institutions (Jones, 2017:213-214).

The organisation’s new staff develops extra skills and expertise through highly recognised training courses, and performance management training through highly qualified "performance improvement coordinators”, including the Basel Institute of Governance. The latter institute developed an internal training framework and new investigative manual, as well as regular classes for all investigators. Its performance indicators included several investigations; launched a number of completed investigations; ratio of number of investigations to numbers of staff; as well as conviction rate and levels of implementation of recommendations derived from preventive work and public opinion surveys (Sebudubudu, 2003:130).

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Much significance is given to assignment studies that deal with existing systems and procedures and their weaknesses in terms of systems and processes. The DCEC has been instrumental in promoting an anti-corruption culture in all state agencies – due to many of its officers having been seconded to other ministries in their effort to establish “corruption prevention committees” – as well as all oversight bodies operating in the President’s Office, including the Procurement Department and the State Auditor, Customs, Ombudsman, Immigration Department, Police Service, and international organisations such as Interpol (Anti-Corruption Authorities, 2020).

Conclusion The above case studies provide an opportunity for comparative analysis and learning. However, South Africa, like any people, is unique in some respects and therefore differences are bound to exist that have a bearing on how anti-corruption in South Africa works, and the realities informing it. As a result, while drawing lessons about best practices from the above is essential, it will be short-sighted not to consider the socio-political context that characterises South Africa. The following research findings and discussion accounts for this complementary element to ensure that the formation and functioning of NACAC is based on a solid structural and operational foundation. That is fit-for-purpose for the South African context.

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THEME 2: Research method, findings and analyses Brief Overview of Methodological Approach, Strategy, and Sampling A total of ten (10) expert leaders based in the public sector, business community, and civil society were purposely sampled to participate in the qualitative interviews. Two (2) declined the offer due to prior commitments that were unworkable with the interview scheduling irrespective of the researcher’s attempts to reschedule. Therefore, eight (8) leaders responded to the set standard open-ended questions that were based on key issues related to the structures, processes, realities, and expectations of the new body: NACAC. To ensure anonymity, as agreed upon by the researcher and the expert leaders, no names are used to attribute views expressed, to any of the leaders. Instead, numbers (1 to 8) have been assigned to each interview participant as follows: •

Expert Leader 1: Retired Senior Member of Chapter 9 Institution, Cape Town.

•

Expert Leader 2: Senior Researcher, NGO, Durban.

•

Expert Leader 3: Senior Researcher, NGO, Cape Town.

•

Expert Leader 4: Senior Public Servant, Provincial Government, KwaZulu-Natal.

•

Expert Leader 5: Senior Public Servant, Chapter 9 Institution, Gauteng.

•

Expert Leader 6: Businessperson, KwaZulu-Natal and Gauteng.

•

Expert Leader 7: Senior Academic Researcher, Gauteng.

•

Expert Leader 8: Senior Administrator, Provincial Government, Gauteng.

Summary of Research Findings and Analyses A preliminary briefing took place as a means to confirm that the expert leaders are sensitised to the envisioned NACAC and recent developments in the subject matter, in addition to their existing in-depth knowledge. As it would later emerge, while there is consensus on a few issues, equally, questions and opinions are divergent on other issues of interest. For example, while it is debatable that some anti-corruption agencies and bodies are riddled with corrupt elements that undermine the fight against corruption, there is consensus on “Scorpions’ days when corruption was certain to have repercussions.”

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Four of the leaders (number 2, 4, 5, and 8) highlighted the complete lack of effort to put in place and use scientific integrity pre-screening processes to maximise prospects of ensuring that the top leadership of anti-corruption bodies comprises competent and ethical leaders, especially in the supply-chain and procurement management, investigations and prosecution services, internal audits, and risk management offices. These offices are integral to the integrity of the anticorruption bodies’ ability to function effectively and efficiently and to build public trust – without which it will be virtually impossible to mobilise stakeholders in anti-corruption efforts.

Interestingly, leader 3 suggested that NACAC could face the same fate as the Scorpions, as it may neither enjoy sufficient legal status nor guarantee security of tenure of office. He further opined: “It is consistent with the ANC’s NEC decision in 2020 to establish a single, permanent, and independent agency with the capacity to deal with corruption decisively. When one considers the Glenister litigation cases, it suggests that poor political advice was rendered without significant acknowledgement of the thrust of the findings.”

Amongst other factors, incapacity and illegality could see the agency dissipating, unless duly addressed from inception. This means that, for the new body to exist and operate, it is inescapable that a new law will have to be enacted and passed – a process that is unpredictable. He points to the strong belief that, with support from civil society and the business community, the Democratic Alliance is prepared to present a ‘Private Members Bill’ that could compete with the plans, and the growing ‘look to private prosecution’ view expressed by some – including Eskom’s leadership recently – when there are delays and failures in the state’s anti-corruption agencies.

Legitimacy, representability, and trust are intricately linked and crucial to the success of NACAC. This is according to expert leader 5, who emphasised that the structure could assume the representative character of NEDLAC (the National Economic Development and Labour Council) to ensure that it mobilises all stakeholders of society against corruption. However, as she cautioned, members of the public need to feel a sense of institutional trust so that they can report, collaborate, and support it. Ideally, she elaborated, the proposed NACAC must have a witness protection programme that falls under the control of retired Constitutional Court judges who are no longer interested in political power. Besides, retired judges, especially of an apex court such

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as the Constitutional Court, command moral and ethical respect. It would, all matters considered, be likely that they will be trusted by many, if not all, stakeholders.

It is common cause that experience triumphs anything, in many fields. This is a reminder by leader 1, who noted the importance of ensuring that the selection of the NACAC body is more informed by meritocracy than anything else. In particular, according to him, “… the selected members [must] have a developed understanding of the subject matter [that] they will be dealing with.

Their knowledge and experience, beyond the technical, should include knowledge on internal workings and systems of public sector organisations, and how corruption manifests itself within the sector.”

In addition to the technical know-how and sectoral knowledge, there is consensus on a number of considerations that will ensure that NACAC succeeds in its mandate as per the National AntiCorruption Strategy (NACS) 2020-2030: •

NACAC is authorised to issue relevant directives and oversee their implementation.

Without such a drastic step forward, any hope for NACAC’s success would easily be inhibited by pedantic bureaucratic layers put down by those who do not want to account (leaders 1, 5, 7, and 8).

•

That these instructions are considered mandatory by the entire security cluster (leaders 1, 3, 4, 6, and 7).

•

That all Cabinet Ministers actively support NACAC and its mandate (leaders 1, 2, 4, 6, and 7).

•

That the Accounting Officers and Accounting Authorities (as per PFMA/MFMA) actively support and oversee NACAC directives – and account for the effective implementation and ongoing application (leaders 1, 4, and 7).

•

That NACAC directives are incorporated within the internal control regime of each, and every public sector organisation stipulated – including the PFMA/MFMA – internal audit function, the risk management function, and prescribed procurement practices (leaders 1, 4, 5, and 7).

•

That every public official involved in the running of the entity must undergo serious essential training, covering the nature of public sector corruption and NACAC prescribed anti-corruption practices (leaders 1, 4, and 7).

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•

That various members possessing different expertise and industry knowledge will add respective value to the body. This implies, for example, that NACAC senior representatives would need to establish and lead different subcommittees or working groups based on their skill sets and knowledge. It cannot be expected for each member to be conversant in all aspects of corruption.

Two of the expert leaders (4 and 6) highlighted the indisputable fact that the forthcoming report emanating from the Zondo Commission of Inquiry into State Capture would open additional avenues of challenges at all levels of the State and, possibly, result in new relations and actions undertaken by anti-corruption agencies. Such new decisions and outcomes were already described as opening novel paths in the relationship between the new body with organisations such as the South African Revenue Service (SARS) and Special Investigating Unit (SIU), as seen by the collaboration between the entities on a number of high-profile cases. Therefore, it is important for NACAC to not be rigidly formed in the beginning but rather to allow the structure to emerge and mature with time in the first two to three years of its operation (added leaders 2 and 5).

It was widely acknowledged by some of the leaders (3 and 6) that the challenges associated with NACAC’s planning and operations as described in the NACS will be extremely difficult, due to the vast expansion and complex composition and dimensions of a public sector characterised by structures and functions of separate autonomous institutions across the three spheres.

Considering that NACAC has the responsibility to deal with each one of these equally and comprehensively, it is a foregone conclusion that the establishment of a supportive Secretariat is crucial for it to fulfil its mandate (leaders 1, 5, and 8).

While the NACAC leadership should be the “brains trust” of the body, members of the Secretariat should be attuned to the subject matter and goals of the NACAC to constructively execute the instructions of the body and manage the daily operations. This would require the Secretariat members to possess a sound understanding of the internal workings and legal frameworks of all state institutions as well as report writing, events and meetings management, and other administrative abilities that would be necessary for the comprehensive and successful operational duties and responsibilities needed. For instance, one expert leader (3) referred to their knowledge

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of how the interplay between the National Prosecuting Authority and Department of Justice’s leadership limits resources to restrict meaningful prosecution in certain cases.

South African government and state machinery is characterised by fragments. Leaders 1, 4, and 6 warned that the configuration of NACAC should not carry the same fragmented character, because there is great potential for conflicting responsibilities and duplication of areas of competencies. This could stifle the effectiveness of the overall anti-corruption intentions of the government at many levels, as observed from some of the challenges encountered by the AntiCorruption Task Team. This implies that clear formalised areas of responsibility and authority that exist within a single coherent anti-corruption strategy and action plan are crucial to its success.

There were reservations regarding the proposed term of office for the interim body, which is two years, by some of the participants. Leaders 1, 5, and 6 were concerned that with a change of leadership soon after its establishment, NACAC could lose momentum and the necessary sense of urgency. Furthermore, as expert leader 7 added, corruption is a multifaceted phenomenon to be unravelled within a short space of time. The intricate details of grand corruption, as revealed, for example, at the Commission of Inquiry into State Capture, and complex vast networks to disentangle take a great deal of time and resources.

Resourcing, staffing, and financing of NACAC was also a common theme. Given the shrinking tax base due to unemployment and a stagnant economic growth rate amidst expanding service delivery mandates, leader 7 recommends that, to supplement operational budget, the body could use additional funds from the Criminal Asset Recovery Accounts to ensure that it has enough funds to meet its financial needs, including hiring of competent staff and the ability to retain them, especially in the investigating unit and the Secretariat.

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Conclusion The above findings bring a few salient factors to light that must be taken into consideration when formalising NACAC. While it is generally accepted that it is impossible to attend to all issues raised by the expert leaders at once, it is worth sieving through them and deciding on the critical ones, those which have the potential to direct the structure, operation, and mandate of the body to ensure that it is fit-for-purpose at inception stage. The following section gives a detailed overview of how the researcher, in consultation with the reference group from the School of Public Leadership and Inclusive Society Institute, understands NACAC as conceived by the NACS document.

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THEME 3: NACAC in practice This section represents an informed attempt to chart what NACAC could look like after considering the research findings (theme 2) and best practices from the case studies found on the African continent (theme 1).

The establishment of the National Anti-Corruption Advisory Council is the beginning of a two-year process, leading to the creation of a permanent entity that will lead the fight against corruption in South Africa. This process concentrates on, particularly, the management of the initial transitional matters of the new permanent organisation that will later emerge. The key mandate of NACAC is strategy implementation of research and conceptual development, culminating in a draft proposal for Cabinet that will ultimately inform the establishment of the overarching body.

The foundation upon which the new body is built should be informed by a sound legal basis governing the institution, which should elaborate especially on financial, personnel, procedural, and operational issues related to the agency. Preparation of internal organisational structures and regulations including the internal code of conduct; initiating the process of recruitment of staff; working out internal administrative, operational, and reporting procedures, and establishing manageable work plans and benchmarks to assess progress should form part of the initial stage.

NACAC Composition and Staff Selection Criteria During the first transitional period, between 7 and 10 senior representatives from government, the private sector, and civil society appointed by the President will comprise the body, and they will be supported by a full-time dedicated Secretariat. Government Minister/s who have participated in the Clusters of Directors General and Clusters of Ministers established by the Presidency in line with Section 85 of the Constitution of the Republic are considered to be the appropriate government representatives to be prioritised to represent government. This is because they have sufficient experience and knowledge of issues associated with coordination and integration of government priorities and programmes, the study and processing of Cabinet memoranda, draft bills, policies, documents, and strategic decisions for consideration and approval by Cabinet. The incumbents of the Governance, State Capacity, and Institutional Development Cluster (GSCID); Justice, Crime Prevention and Security Cluster (JCPS); or the

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International Cooperation, Trade and Security Cluster (ICTS) could be candidates to represent the government.

The National Anti-Corruption Forum (NACF) – a coalition formed by the government, business, and civil society sectors – could potentially serve as a ready-forum from which to choose nongovernmental representatives, as it already serves as a forum to discuss corruption challenges. It could be considered along with NEDLAC. Other civil society and organised interest bodies such as Business Unity South Africa offer third-level options.

In terms of civil society organisations, the existence of a wide variety and diversified anticorruption entities makes the choice challenging on a number of levels, but inevitably a critical, open, and democratically undertaken debate can lead to an appropriate decision. If the government needs to tap into existing structures, the National Development Commission, and National Governing Council on APRM (African Peer Review Mechanism), for example, offers access to a wide range of civil society bodies at an apex level.

In terms of the Secretariat, the key elements for selection should prioritise the knowledge and understanding that exists within all relationships NACAC has with other anti-corruption bodies.

The Secretariat members employed after a successful transparent and participatory interview will be well educated, skilful, and capable employees executing daily administrative tasks for the organisation. The existence of soft and hard skills is to be supplemented with important professional aspects such as technological knowledge, systems design, and database management, South Africa’s anti-corruption legislation, rules and regulations, and agreements with African and international bodies.

The importance of NACAC means that members of the Secretariat should be attuned to the subject matter and goals of the body so as to constructively carry out the instructions of the organisation – especially as it will be the main daily conduit of communications between NACAC and government departments, anti-corruption bodies, public enterprises, etc. This would require that the Secretariat has a good understanding of the internal workings and the legal frameworks of all these organisations – as well as all the report writing, meeting organising, and other administrative abilities that would be necessary to achieve day-to-day operational goals.

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NACAC’s Authority, Mandate, and Responsibilities NACAC derives its key primary mandate from the fact that it is the entity that oversees the processes, structures, plans, and implementation of the National Anti-Corruption Strategy and all anti-corruption programmes as envisioned by NACS. In this process, NACAC could then become an organisation that periodically reviews the NACS; and could call for public hearings and/or submissions and recommend changes to Parliament if and when deemed necessary. That is, the body will have the power, authority, influence, and responsibility to ensure cooperation, coordination, synergy, monitoring, and evaluation of all anti-corruption projects and programmes in all societal sectors, including compliance with all international and multilateral institutions and conventions.

The research, policy formulation, and advisory roles are integral to the existence of the entity.

Research activities on anti-corruption led to the creation and development of new knowledge that is instrumental to the processes of analysing and dissecting operational, regulatory, and legislative inadequacies and devising proposals of relevant interventions. Such initiatives and outcomes give rise to the formulation of new initiatives, measures, and policies aimed at preventing corruption.

While in the process of researching the necessity and/or suitability of a single anti-corruption agency, the management of stakeholder relations and partnerships – their engagement and development – ultimately generates a deeper understanding of sectoral and industry forum coordination. Within such a functional and structural reality, hosting regular anti-corruption summits amongst representatives of all anti-corruption bodies becomes inevitable, as such undertakings could prompt further development of relevant interfaces or engagement mechanisms.

Therefore, one of the key responsibilities of NACAC is the continuous liaison and collaboration with other anti-corruption agencies and bodies, including but not limited to constitutional institutions such as Chapter Nine institutions and the Public Service Commission, law enforcement agencies, the NPA, the SIU, the intelligence services, specialised units in departments, and any coordinating mechanism for reactive and law-enforcement activities (currently the ACTT).

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Within the same operational terrain, the importance of highlighting failure or any undue, unconstitutional, political, and/or other interference in the operation of these bodies and bringing it to the attention of Parliament, cannot be overstated. In fact, calling attention to deficiencies related to capacitation, impediments, funding, and resources for anti-corruption bodies is a significant functional objective. It is necessary for NACAC to prioritise raising the alarm on any unethical or integrity-deficient conduct of the head or senior management of any anti-corruption body, as an early warning system for attempts at state capture or any action that could result in state capture.

Design and function of a coordinating body Anti-corruption agencies in South Africa are poorly coordinated due to overlapping mandates, diversity, and institutional lack of clarity. NACAC can achieve effective inter-agency cooperation as a coordinating body through sufficient capacity, resources, authority, and political will. A number of well-defined measures could create effective cross-agency cooperation, which might lead to proactive information and communication, joint training initiatives, and evaluating and monitoring the planning processes and implementation of anti-corruption efforts by the existing bodies.

In many countries, the effective coordination of anti-corruption work is greatly undermined by the failure to consider cooperation issues from the design stage of the anti-corruption institutional arrangements. This results in inadequate or non-existent coordination mechanisms that lack resources, capacity, and political backing. Empirical research has shown that on many occasions coordination of anti-corruption bodies is weak and inconsistent, even non-existent.

Although the mandates of such bodies are defined by laws, rules, and regulations, these entities exist more on paper than in practice and therefore lack a pro-active approach, powers, and political leverage to act in a way that enables them to fulfil their mandates efficiently. Political and legal support across the board is a necessity if NACAC is to succeed in effectively implementing inter-agency cooperation (U4, 2005).

Immediate and continuous planning, together with operational and political attention, is required from the onset. Coordination issues need to be debated and planned from the design stage of the anti-corruption policy making. In addition, integration in the overall anti-corruption architecture

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is important. A coordinating body’s success is based on a strong understanding of how and where the various mandates and responsibilities meet and interact. A new anti-corruption architecture enables the reallocation of responsibilities and roles whereby institutional hierarchies, mandates are clarified, and competencies are readjusted. This means that respective institutions are given clear lines of responsibility, as clear rules of engagement guide the collaboration and interaction of the existing bodies (Meagher, 2005).

Coordination can be the solution to the primary concern in the anti-corruption fight in South Africa, as research has shown inadequate networking between different entities with different tasks. At present, South Africa has fourteen anti-corruption bodies struggling to do their work.

The poor state of the economy, in part due to the continuing impact of COVID-19, and the reality of a continuous fiscal austerity calls for a prudent approach to the reform of the country’s regulatory landscape. Any reforms should be considered and decided upon based on maximum value on expenditure.

A suitable point of departure could be the adoption of a well-coordinated and networked approach that brings together the heads of all the existing entities. These include the Chapter Nine institutions mandated with anti-corruption work, including the Public Service Commission, all the law enforcement agencies in all their various forms and guises, and the intelligence sector.

Cross-cutting reforms – especially those associated with corruption and the anti-corruption fight – depend on valuable information and communication-sharing between the public and the implementing agencies in addition to access and dissemination of supporting anti-corruption documents and policies. The developments in information technology have opened increasing opportunities in this field and are instrumental in providing innovative tools to promote information and data-sharing across agencies.

The design and implementation of a systematic and proactive strategy of information-sharing amongst all agencies will be crucial to help build and sustain trusting relationships which will ultimately bring about longer-term cooperation. This means that NACAC is designed to take the lead in crucial information exchange as a strategy to gain the confidence of all other agencies (De Sousa, 2010).

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Resources and Capacity Needs The existing official National Anti-Corruption Strategy 2020-2030 states that, in terms of budget and resourcing, and given the fact that the NACAC will exist for a maximum of two years, this structure can explore the use of funds from the Criminal Asset Recovery Accounts. This is a separate account within the National Revenue Fund (NRF) into which property and monies are deposited after a judicial confiscation, forfeiture, or order – a process rooted in the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998). The hypothesis behind asset forfeiture legislation is that, by forfeiting or confiscating the proceeds or profits of crime, the incentive for committing specific crimes is reduced, while the state uses the proceeds to strengthen its anticorruption efforts.

It is important that a legal opinion should be sought as to the authority of the National Treasury to redirect the distribution of these funds. It is a natural cause that, if found to be legally permissible, funding of NACAC (and its Secretariat) could produce a considerable politico-societal return by way of reduced corruption – reduced loss of public funds in public sector institutions – which in turn further justifies its funding and increases the pool of resources government needs to deliver services.

Beyond resources, institutional capacities needed include: •

A Research and Policy Unit that is responsible for researching anti-corruption initiatives.

Its key responsibility is to facilitate and conduct research and analytical studies on issues pertaining to the development of anti-corruption initiatives locally, regionally, and internationally. While researchers employed in the unit can be directly involved in staff training throughout the anti-corruption institutional terrain, contacts, meetings, and digital conferences can connect the staff with colleagues and academic researchers on the African continent to exchange ideas, research, and insights. Potential staff members of such a unit should be university graduates with at least a master’s degree in the social, law or economic sciences, preferably with knowledge and/or exposure to anti-corruption realities. o The unit might be strengthened by the success of the innovative model currently being developed by the University of Pretoria together with the Presidency, which

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aspires to create a highly networked governance method that will link up existing researchers in a very lean organisational sense. Such thinking could influence the future development of the notion of applying higher levels of coordination and focus to the fight against corruption. Important to note is that the unit does not make recommendations. It presents its final reports to its leadership, its sister organisations, and finally to the anti-corruption bodies and the National Parliament.

•

A Project Management Office that will operationalise the existing policies, strategies, and procedures together with the existing multilateral initiatives on governance and anticorruption; identify the dynamics and realities for risk analysis and institutional assessments; governance and anti-corruption project design measures; supervision monitoring and evaluation, and similar operational matters.

•

An Education Office that will operate at two levels: the institutional and the public. The institutional level will focus on training all members of NACAC as well as those in all anticorruption agencies. This will involve an ‘induction training programme’ providing basic training to new employees, all of whom spend the first few months of their service in the Research and Policy Unit in order to improve their knowledge on corruption and anticorruption realities, investigations, successes, processes, structures, and challenges, before being considered for the final posting. The new recruits’ training could last at least a year, while the trainees work and learn at the Research and Policy Unit. During the process the courses include corruption prevention, communication skills, rules of evidence, law, computer forensics, financial investigation skills, and cognitive interview techniques, amongst others. Throughout the period of employment, the training continues at higher levels. The public pillar is for awareness campaigns and educational programmes in order to mobilise society in the fight against corruption.

•

A Whistle-blower Protection Unit that is responsible for considering the circumstances under which suspicions of wrongdoing can be reported inside and outside the organisation; has the knowledge and means to provide legal and physical protection to the whistle-blowers; ensures that the existing reporting channels, such as information hotlines, also exist for individuals working in the private sector, who are involved in the provision of local and regional public services; encourages positive attitudes towards whistle-blowing amongst citizens by promoting whistle-blowing policies and publicising post-reporting follow-ups, to ensure that individuals considering reporting suspected

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cases of wrongdoing have access to advice that is confidential and free of charge; forms part of external bodies such as NGOs and national associations; and introduces periodic assessments of the effectiveness of rules and regulations on the protection of whistleblowers.

•

The treatment of whistle-blowers in South Africa has led to proposals for a reform of the Protected Disclosure Act (PDA) after representative organisations of those who speak up voiced their frustrations. According to the organisations, the PDA does not protect whistle-blowers since whistle-blowing still leads to job losses. The value of whistleblowing for the public good has increased worldwide over the last 40 years. In many countries, both state and federal statutes have been put in place to protect whistleblowers from employers and institutions. This is a direct result of the fear public employees face when exposing corruption. New strict laws, rules, and regulations have been introduced worldwide to protect whistle-blowers, and so doing help the fight against corruption by encouraging more people to expose misconduct or illegal and dishonest activity (Lee & Kleiner, 2011:342).

A recommended amendment to the PDA is to afford the complete protection of all government employees and especially the whistle-blowers. The amendment should prohibit the government from taking any personnel action against an employee after they have disclosed information that they believe exposes gross mismanagement, corruption, waste of funds, or the abuse of authority.

Conclusion To gain protection from the amendment, a public employee needs to show that a protected disclosure was made, the nature of which the accused official was aware of, and that a connection exists between the retaliation from the official and the actions of the employee which induced the retaliation (US Department of Labour, N.d.).

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Expert’s responses analysis There were mostly similar as well as a number of diversified opinions in the responses to questions structured in order to receive, assess, and absorb expert opinions of interviewees belonging to all three categories of the first leadership group of the new body in its ‘first stage’ of two years. The questions dealt with key issues of structures, processes, realities, and expectations associated with the body. There were mostly agreements in respect of key issues but also queries and additions based primarily on the deep knowledge of the interviewees as well as their viewpoints and beliefs guided by it.

In the preliminary introduction of the topic and the explanation of the structure of the openended questions to be answered the researcher had the opportunity to ask the prospective interviewees’ opinions on the conditions and realities of the anti-corruption agencies and the existing law enforcements in the country at present.

The general response was rooted on the belief that such agencies and anti-corruption bodies were an integral part of a corruption-ridden public system, a small part of which still ‘remember with nostalgia the Scorpions,’ possibly the only such system in the world that has faced the reality that every single Commissioner of police has been removed from his/her position facing charges for corruption. Such an undisputed fact points to the vital significance of senior appointments of well trained, highly educated, and ethical leadership.

Four of the interviewees (No 2, 4, 5 and 8) pinpointed to what they described as ‘complete lack of efforts to corrupt prevention’ in terms of what was described

lack of clear cut scientific

examination of anti-corruption personnel integrity tests through instruments such as liedetectors and newly established testing tools, especially in key corruption-ridden or corruptioncreating public sector functions such as supply chain management and procurement, risk management and internal audits amongst others.

Interestingly, similar positions have been expressed by a highly experienced and knowledgeable former head of the NPA (National Prosecuting Authority) who has publicly mentioned that ‘the focus in the country’s law enforcement entities had been on violent crimes and sexual offences’ due to the public outrage.’ Such a position, it was stated, points to the significance of the support

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of an anti-corruption agency that only focuses on anti-corruption, not rape or murder. The proposed anti-corruption agency on his part should have the “vital power” to allow answers to self-incriminating questions “like the Scorpions.”

Such important positions on the part of the retired anti-corruption leader were demystified as follows:

“If there is no cost to them changing their version when evidence comes up, it drags on and on.

The Investigating Directorate does this, but its 30 or 40 people will not make a difference. Selfincriminating questions cannot be used against the confessor in his own trial but can be used against others.”

He also favoured a “proper whistle-blower mechanism” that fell under the control of retired Constitutional Court judges, as he believed that such a step would make whistle-blowers feel safe (Hofmeyr, 2021).

The gist of responses to the questions set appears below:

Question 1: The National Anti-Corruption Strategy has indicated that the number of persons in NACAC should be senior representatives from government, civil society and business, consisting of between seven (7) and ten (10) members. Do you consider the composition of the body appropriate and according to NACAC’s principles, duties and responsibilities? If NOT please state your reasons.

There was one interviewee who was from the beginning against the very existence of the proposed new body (Interviewee No 3).

The interviewee begun the describing the National Anti-Corruption Strategy 2020-2030 as a ‘detailed document rooted on good sense’ and an agreement with the ANC’s NEC urgent resolution in 2020 that ‘instructed’ the Cabinet to establish a single, permanent, and independent agency with the capacity to deal with corruption decisively. This ‘instruction’ was ‘echoed’ in the President’s announcement on February the 21st of the National Anti-Corruption Advisory Council.

The interviewee’s belief that ‘the President has been ‘poorly advised’ by politicians who have no

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understanding or knowledge of the crucial significance in law of the thrust of the findings in the Glenister litigation case (Glenister 2 and 3) that are binding. It was stated that the findings of the case that was centred on the inadequacy of the Hawks were based on the fact that a statutory body as described in the Presidential State of the Nation Address cannot enjoy the legally required security of tenure of office. This means that

the body is illegal and will face the fate of the

Scorpions, an organisation that disbanded after the ex-President Jacob Zuma replaced then President Thabo Mbeki.

The interviewee’s position was clearly based on the belief that the new body described by the President in SONA will be immediately very vulnerable and will face the same ending as the Scorpions. This is, because it is not legally a Chapter 9 institution, an entity that is structurally and operationally independent, one that cannot be legally terminated by a simple majority. On the other hand, it was believed that a ‘real new Chapter 9 institution’ that has the mandate to investigate, prosecutor and answer to Parliament is needed.

There was a strong belief that the new independent anti-corruption body described the President was ‘unconstitutional’ and such a position was in fact a negation of the ANC’s National Executive Committee’s resolution in August 2020 as it was mostly in accordance with the Glenister 2 and 3 binding findings.

It was felt that the fact that the advisory body’s initial composition has not been announced by the President yet points to the reality of deep misunderstanding of the complexities of laws, corruption realities, as well as the Zondo Commission outcomes. Following SONA there was the expectation that the appointment of the members of the new body would be the first priority.

The delay of such an appointment was described by the interviewee as a lack of planning and implementation of key decisions announced publicly which aim at ‘filling the gaps in the fight against corruption’ in South Africa. Such gaps can be only filled by a lawful anti-corruption advisory body that will enable a new successful path for the government. This could only be a body rooted on the clear findings of the Glenister 2 and 3 cases.

The introduction of such a body would be the beginning of a road leading the country far away from corruption and ‘state capture’ through carefully executed efficient steps against the corrupt elements throughout the public service and beyond.

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There was a strong belief that the Democratic Alliance, through an alliance with nongovernmental organisations was prepared to present private members’ bills supporting a new anti-corruption investigative body, while non-governmental organisations had already prepared in legally based plans for a ‘one-stop shop’ Chapter Nine organisation that when established would be able and capable to investigate and prosecute all forms of serious corruption at all societal levels. Finally, it was stated that for the new body to exist and operate ‘a new law needs to be passed’’.

This meant that given the ‘procrastination of the President’ to establish the new body a court case was prepared to have such a ‘plan’ nullified (Interviewee 3).

There was a general acceptance on the number of members elected by the President as the first leading group of the body (between seven and ten) and despite the almost general acceptance of the suggested sectoral representation there was a somewhat diversified opinion. Interviewee No 5 believed that a ‘community member’ should be included in the group and such a position was justified by the example of NEDLAC (the National Economic Development and Labour Council), where there is a community and a worker/labour union contingent. While the equal representation of the groups was generally agreed upon by the interviewees there was a belief that the diversification of the groups, especially those from the ranks of labour and civil society was important (Interviewees No 2, 4, 5 and 6, 7, and 8).

A critical issue raised by Interviewee No 1 initially and agreed upon by the majority of the rest was that the most essential element instrumental in the success of the body is that the chosen members have a developed understanding of the subject matter they will be dealing with. It was felt that knowledge that includes the internal workings and systems of public sector organisation, how corruption manifests itself within such organisations, as well as what is to be learnt from the international literature on corruption in the public sectors and the established best practices towards combating is essential. It was strongly felt that without such understanding and experience the NACAC would be ineffective - as previous anti-corruption initiatives have shown conclusively.

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A number of interviewees indicated that given the existing realities evident within the political and organisational structures of the ruling party, the President’s selection of the body’s members from government should be based on clear criteria of credibility, honesty, existing historical background and serious knowledge of the realities, laws, rules, and regulations regarding corruption (Interviewees No 1,2, 4, 6 ,7). An interviewee emphasised the importance of the proposed number of the initial leadership core, especially in terms of the importance of labour representation. It was felt that more people in the leadership of NACAC ‘would spoil the broth as the saying goes’ (Interviewee No 8).

Question 2: It is stated in the Anti-Corruption Strategy Document that ‘This body will be responsible for the managing of the initial transitional matters of strategy implementation, including research, conceptual development and drafting of a proposal to Cabinet for the establishment of the overarching body’. Is it viable that all these matters of strategy implementation can be undertaken by the NACAC senior representatives? If not, what do you feel are the alternatives and the reasons for your response?

Given the knowledge of all interviewees, especially in relation to the SOUTH AFRICAN ANTICORRUPTION STRATEGY 2020-2030, it was not a surprise that the

possibility that an

appropriately staffed NACAC would be able to manage the necessary and successful implementation of the responsibilities stated in the Anti-Corruption Strategy Document was very viable at all levels.

Despite the general acceptance that the proposed planned and implemented new body could be capable in managing the necessary and successful implementation of the responsibilities as outlined in the Anti-Corruption Strategy Document it was strongly felt that there were a number of ‘particularly important’ prerequisites for such a success to become a reality: •

The NACAC is given the necessary authority to issue relevant directives and oversee their implementation. Without such a step forward any hope for success is lost (Interviewees No 1, 5, and 7, 8).

•

That these instructions are regarded as mandatory (Interviewees No 1, 3, 4, 6 and 7).

•

That all Cabinet Ministers actively support the NACAC and its mandate (Interviewees No 1, 2, 4, 6 and 7).

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•

That the Accounting Officers and Accounting Authorities (as per PFMA/MFMA) actively support and oversee NACAC directives – and must account for their effective implementation and ongoing application (Interviewees No 1, 4 and 7).

•

That the NACAC directives are incorporated within the internal control regime of each and every public sector organisation – including the PFMA/MFMA stipulated internal audit function, the risk management function and the laid down procurement practices (Interviewees No 1, 4, 5, and 7).

•

That every public official involved in the requirement as the above necessities outlined above must undergo serious essential education covering the nature of public sector corruption and the NACAC prescribed anti-corruption practices (Interviewees No 1, 4, and 7).

•

That the various members could introduce various strengths to the table and would not all, for example, have to be researchers although research is an inevitable element of the body. This means that NACAC senior representatives could need to have subcommittees for some of the work as not all elements or decisions are research orientated and might be strong on a particular strategy element but not all of it. It was felt that there could not be expectations for each member to be conversant in all aspects of the corruption realities, meaning that such undertakings would be outsourced to specialised, ad hoc committees (Interviewee No 8).

A number of such statements were seen as important in the context of future challenges facing the key operations of the new body and its members as two interviewees (No 4 and 6) pinpointed the undoubted fact that the forthcoming report emanating from the Zondo Commission of Inquiry into State Capture would open new avenues of challenges at all levels leading to new relations and actions undertaken by anti-corruption agencies. Such new decisions and outcomes were also described as opening new paths in the relations between the new body with organisations such as the South African Revenue Services (SARS) and the Special Investigation Unit (SIU) that have been decisive in their road to new, forward-looking, and positive directions (Interviewees No 2, 5 and 8).

There could be the possibilities of difficulties in future relations leading to the necessity of fresh paths of collaboration between the new body’s leadership with group/s of politicians as well the leaderships of central, provincial and district municipal leaderships associated with corruption still

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under investigation as well as state-owned companies such as the Airports Company South Africa, Transnet, Denel, and ESCOM. These realities demand unity of purpose, common understanding of existing realities and openness as vital ingredients of success (Interviewees No 3 and 6).

Question 3: It is stated that ‘The NACAC must be supported by a full-time dedicated secretariat to facilitate any practical arrangements, to consolidate and record its work and reports, and to ensure that it can deliver on its mandate’. How important is the composition of such a body and what skills, knowledge, and experience and sector background (public or private) the potential secretariat members should possess. Provide reasons.

It was widely acknowledged by the interviewees that the challenges associated with NACAC’s planning and operations as described in the Anti-Corruption Strategy document will be extremely difficult because of the vast expansion and complex composition and dimensions of a public sector that is characterised by the existence, structures and functions of separate institutions and entities. Bearing in mind the reality that NACAC has the responsibility to deal with each one of them equally and comprehensively, it is inevitable that the establishment of a supportive secretariat is crucial to the fulfilment of its mandate (Interviewees No 1, 5, and 8). While the NACAC leadership should be the “brains trust” of the body, members of the secretariat should be attuned to the subject matter and goals of the NACAC to constructively carry out the instructions of the body – especially as it will be the main daily conduit of communications between the NACAC, anti-corruption bodies, Government Departments, Public Enterprises etc. This would require the secretariat members to possess a good understanding of the internal workings and the legal frameworks of all these organisations – as well as all the report writing, meeting organising and other administrative abilities that would be necessary for the comprehensive and successful operational duties and responsibilities.

While it has been widely accepted that strong organisational skills and meticulous treatment of existing technical and other existing challenges and problems within the entity, it was felt that that research capacity and skills experience would be beneficial at this this level especially when dealing with confidential information (Interviewees No 2,4,6 and 7).

These realities mean that from the beginning the NACAC leadership should recruit highly qualified staff, with skills that are the foundation of future success. It needs to be noted that the

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commitment to effectiveness of the leadership functions in the process of fighting corruption should be integrated into the duties and responsibilities of the secretariat that could be diversified in terms of operations as follows:

The key duties and responsibilities of a secretariat involve a good number of individuals executing daily administrative tasks for an organization, mainly but not exclusively the handling human resources and personnel issues; the organisational finances; practical arrangements for the meetings; planning, implementing, and maintaining a forward plan of agenda items and liaising with the Chair to prepare agendas, and preparing, checking, and issuing accurate minutes. Such a group of professionals needs to be practitioners with a wide variety of qualities associated with the individual’s positions, duties and responsibilities. The combination of hard and soft skills in terms of qualities include deep knowledge of the incumbents’ duties, responsibilities as well as the subject/s associated with the operational roles, such as high technological skills, and deep understanding of the issues related to the communication channels of all anti-corruption agencies, authorities, and state institutions at all levels (Interviewees No 1, 3, 6 and 8).

It was felt that the members of the Secretariat could become important in the effort to upgrade existing realities both within government departments and entities as well as upgrading the knowledge of anti-corruption agencies staff in issues as important as an advanced understanding of the Treasury rules and regulations in regard of public procurement, through a careful dissection of first operational stages of the processes involved in supply chain management. Such a process could be based on setting standards and regulations in regard to the procurement and disposal activities of Procuring and Disposing Entities (PDEs) such as Government ministries, District Municipalities, Local Municipalities, and all other public bodies engaged in the procurement and disposal activities. Such processes and mechanisms comprise of compliance inspections of PDEs in terms of establishing whether the legally based structures of all relevant contract and procurement committees and their composition are functional, and that the disposal units are in place and functional and according to the rules, laws and regulations. Such a process compliance inspection could lead to the identification of structural and/or functional weaknesses, challenges and problems that could ultimately lead to further investigation. Such initiatives will make a real positive difference in performance at many organizational levels (Interviewee No 5).

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In order to dissect the real significance of the secretariat’s understanding of the realities and dynamics facing anti-corruption agencies, an interviewee set up the example of the relationships of ministers associated with such institutions. This was done through the utilisation of the position and attitudes of the Department of Justice leadership, the National Director of Public Prosecutions (NDPP) and the financial independence of the NPA. It was stated that existing relations between these state institutions in regard to NPA’s financial position are in need to be solved, as the existing situation does not allow the entity to pursue meaningful prosecutions. This means that the secretariat employees need to understand the administrative and financial condition of anticorruption agencies as well all state institutions in general in order to be able to fulfil their duties and responsibilities. It was felt strongly that as the communication with all anti-corruption bodies is considered of paramount importance, both the leadership and the secretariat should plan, design, and implement strategies and tactics as the first key priority (Interviewee No 3).

Question 4: It is stated that in terms of accountability and reporting that is recommended NACAC should report to the President and its reports tabled in Parliament. According to your own understanding, experience and knowledge does such a reality mean that possible debates and majority decisions can become instrumental in changing or/and modifying existing decisions of NACAC? Can you provide the reasons and your own ideas on such a possibility?

The difficulty of this question that can be justified as legally and politically challenging attracted only two responses from the interviewees. The fact that both interviewees who tackled the issue have experiences both in government institutions, academia and research at a number of levels, indicate both the significance and dilemmas associated with the challenges associated with such decisions. The first position based on the interviewee’s experience both within government institutions, legislative roles, academic research and teaching and political oversight is rooted on the belief that it would be important for NACAC to be given scope within its prescribed mandate to make changes to its decisions should this be seen as necessary to further improve the effectiveness of its anti-corruption efforts. It was felt strongly that such changes should always be made within existing administrative laws and not in conflict with executive directives. It was felt strongly that it would be advisable that the stance of the Cabinet, Parliament, the Accounting Officers, the Accountant General and the Auditor General should be invited and taken into account prior to any significant changes being proposed. Depending on the legal mandate of the NACAC and the degree of independence it is given, it could be subjected to Executive and

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Parliamentary prescribed changes. However, it was strongly felt that such impositions are not likely (Interviewee No 1).

On the other hand, Interviewee No 8 felt that given the importance of NACAC as evident in both the Presidential announcement as well as the content of the Anti-Corruption Strategy 2020-2030, it was felt that new and innovative rules and/or regulations should be structured from the relevant bodies so that the possibility of confusion, misunderstandings that could lead to political and/or legalistic dilemmas could be avoided. The interviewee felt that the final decision would depend on the level of the debates and their constructive nature. Decisions, it was said, should be commonly agreed upon rooted on the common belief that the best interests of the country are of paramount importance (Interviewee No 8).

Question 5: It is stated that ‘a transitional interactive strategic relationship will have to be maintained with the Anti-Corruption Task Team (ACTT) and all law enforcement agencies.

Similarly, the work of the NACACS steering committee and NACS reference group should be incorporated into the interim advisory body’. Which section of the Advisory Council do you feel will maintain such relationships, the 7 to 10 of senior representatives from government, civil society and business or by the full-time dedicated secretariat to facilitate any practical arrangements, to consolidate and record its work and reports, and to ensure that it can deliver on its mandate. Provide the reasons for your answer.

The responses can be characterised as similar in most cases, but with a small number of diversions that need to be explored for comments. The general agreement was related to the common belief that any relationship of NAPAC with anti-corruption bodies and other state institutions should be well defined. It is believed that in such relationships the significance of the ‘detailed realities’ is of paramount importance, a fact that will lead to the avoidance of repetitions of past experiences.

There was an agreement amongst most interviewees that it was the responsibility of the 7 to 10member Advisory Council body to communicate with other bodies its policy and action, which will also be presented to the President and Parliament. The member of the Secretariat facilitates such communications at the administrative level. There were also a small number of different positions on the issue.

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It was mentioned, however, that experiences of conflicting responsibilities and authorities between various bodies have been instrumental in undermining the effectiveness of the overall anti-corruption intentions of the Government at many levels. This means that the best way forward depends clearly on formalised areas of responsibility and authority which all work within a single coherent anti-corruption/strategy and action plan. It was felt that such a need does not exist at present (Interviewees No 1, 4, and 6).

The role of the Secretariat and its knowledgeable staff was said to be a key in creating an environment leading to success. Hence the body needs to be enabled to play a key role in providing the functions and processes of an ‘educational enforcement mechanism’ that could prove instrumental in the fight against corruption in terms of dissecting procurement audits within both government entities as well as the anti-corruption agencies.

This is because audit reports throughout the years have been very important sources in analysing the functionalities and dysfunctionalities of procurement and risk management structures and functions as well the relationships between politicians, administrators, and business operators.

This means that in the final analysis the comprehensive examination of specified disposal or procurement cases that have given wide negative publicity to the people, a fact leading to public controversy, lack of trust, suspicion of corruption or malpractice leads to well planned, investigation of the relevant anti-corruption agencies. Such an understanding and analysis within this context leads to a belief that at a time when suspicion of a corrupt act in public supply chain and procurement areas are reported to the appropriate anti-corruption authorities, the rule of law demands criminal investigation and prosecution with integrity. In such cases the investigative powers leading to prosecution are in need of capability and excellence on the part of the state employees responsible to deal with such issues and challenges (Interviewee No 5).

Such a position by the one interviewee was supported by a business person whose opinion was based on the fact that the realities of corruption and anti-corruption have not slowed down, especially during the period of the Covid-19 pandemic and the continuous Personal Protective Equipment (PPE) corruption had devastating effects on the lives of millions of the poorest of the poor throughout South Africans. This reality was perpetrated for months despite the fact that the Special Investigating Unit was seriously activated, and a large number of such cases were

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investigated, and culprits were discovered and punished. Such anti-corruption initiatives were also active through the Fusion Centre (Interviewee No 6).

On the other hand, there was a belief that the ACT has not proven much success in matters relating to their core activities, while the same applies to the division and duplication among the law enforcement agencies. This was said, to leads to the conclusion that in the end, there is the need for a process leading to substantial transformation within the parameters of the Criminal Justice Cluster. Once such an effort succeeds there is an open opportunity for all stakeholders and role players to begin a constructive and useful debate in respect of all important matters in the fight against corruption at all levels. In the end, it was believed, the responsibility lies with the leadership of the NACAC Advisory Council while the Secretariat will mostly provide professional and support services. The NACS Reference group at least represents all sectors involved in the fight against corruption (Interviewee No 7).

Interviewee No 8 believed that the Secretariat in collaboration and direct communication with the main body would provide the ‘guidance of how issues would be resolved after following the administrative processes’ that include direct communications with all government clusters, the DPSA and the National Treasury. The final decision, it was believed, rested with the President and the Department of Justice.

Question 6: It is proposed in the National Strategy document that their term of office should be two years’ maximum or until the overarching body is established and operational. Do you feel that the term is well thought given the existing circumstances? Please justify the answer.

There were two basic positions regarding this question with 3 interviewees stating that given the existing circumstances it was extremely difficult for them to comment on the issue. Three interviewees (No 1, No 5 and No 6) believed that those two years should be an adequate period for the overarching body to establish the necessary functionality and to go through the learning curve in order for it to establish an adequate modus operandi for the permanent body (i.e., phase 2). For the interim body to extend beyond two years would lead to the loss of necessary urgency and impetus of the NACAC initiative.

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Two interviewees, however, who based their opinion on what they called ‘a clear understanding of the Anti-Corruption Strategy 2020-2030’ (Interviewees No 2 and No 4), believed that the realities facing South Africa, Africa and the world during the Covid 19 pandemic have led to devastating human, social and health challenges. Such realities, it was believed, have led them to the conclusion that the present and future decisive battles against corruption can only be led and guided by groups of political leaders, politicians, administrators and future leaders and employees of NACAC who themselves are honest, committed, transparent, independent-minded, well educated and trained specialists in a number of scientific disciplines associated with corruption in all its sides and angles. Their belief was even if the leadership and the Secretariat of the new body were widely accepted because of their own credentials, history and background, the dynamics, realities, challenges, complications, and existing circumstances are so diverse and multidimensional that this period is not enough for the completion of the target. It was felt that the term is most likely too short given the fact of all the existence of the technicalities involved and especially the realities of the existing bureaucratic system in which this body will function. It can also be seen with Councillors in local government-they barely have their internal aspects sorted, started with work (especially when taking over from another political party) and then their time has expired (Interviewee No 7).

Interviewee No 8 believed that the success or failure of such a plan could depend on the reality of setting up the appropriate aims and objectives as well a ‘business plan’ consisting of the realities of the mandate, the roles, structures and membership of the body, the existing and future resources, the priorities, the performance measures and annual targets, the functionalities of the systems, audit realities, risk assessment and mitigation, policy and priorities agendas.

Question 7: It is stated that in terms of budget and resourcing and given the fact that the NACAC will exist for a maximum of two years, this structure can explore the use of funds from the Criminal Asset Recovery Accounts. Do you think that such a possibility exists? Provide the reasons for your answer. A proposed alternative is welcome.

It was stated that this proposed source of funding for the NACAC is certainly worth exploring. It was felt that a legal opinion should be sought as to the authority of National Treasury to redirect the distribution of these funds. Failing this, it should be possible to convince the Minister of Finance that funding of the NACAC (and its Secretariat) should produce a considerable return by

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way of reduced corruption i.e., reduced loss of public funds in Public Sector institutions – which in turn justifies its funding (Interviewee No 1).

It was felt that such a decision that could lead to a reality in the end of the process will literally depend on all of the costs that the Council will incur. While the allocation of a budget during the period of the operations could be considered a ‘done deal’, additional funds could come from the Criminal Asset Recovery Accounts. However, it was believed, one should keep in mind what the Criminal Asset Recovery Accounts are actually supposed to do with for example the recovered funds. If the Advisory Council should find their own financial means it will not work (Interviewee 7).

Question 8: What do you consider the best ways and channels used by the various anticorruption agencies to coordinate and interact?

This was basically a ‘general question’ set with the hope that the knowledge of the interviewees even from a variety of different angles would or could provide new knowledge or original ideas and alternatives suited to the new entity.

The majority of interviewees (Interviewees No 1, 2, 4, 5,6 and 8) mentioned that this was a ‘very difficult question’ for a number of reasons, the most important been the multiplicity of anticorruption laws, rules, regulations and anti-corruption bodies as well as what was described as the difficulty of South African people, including members of Parliament and senior public servants at all government levels to really know and understand of specific duties and responsibilities of each of these bodies. The name of the Scorpions that do not really exist anymore cropped up a number of times as an almost ‘generic’ belief emerged that ‘perhaps a new body can be the only carefully selected conclusion.’ The new body NACAC was mentioned by four of the respondents as a possibility, although it was stated that knowing the problems and challenges facing the political realities associated with such decisions, a final answer was difficult (No 4, 5,6 and 7).

Interestingly a similar position to a point, albeit with an addition, was provided by one of the most distinguished international corruption and anti-corruption researcher Professor Drago Kos, who is the Chairperson of the OECD Working Group on Bribery in International Business Transactions, as well as the co-chair of Mena – the OECD Business Integrity Network, and a member of

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International Anti-Corruption Advisory Board (IACAB), among others. He questioned whether South Africa has an anti-corruption fatigue because of the fact that the country has 14 anticorruption agencies. He pointed out that although political will and the right personnel are key to success, any new proposed entity would also need clearly defined powers and resources.

Because of these realities, it was stated, ‘South Africa does not need an agency number 15’ (Kos 2021).

An almost similar position was proposed by Interviewee No. 7 as follows:

“I have always thought that, considering the least corrupt countries in the world, that the South African system has too many pieces of legislation and various bodies. My first suggestion would be to streamline these and then, basically on a similar basis to the intergovernmental relations framework, coordinate, and work together. It would be best to have ONE central reporting point (where there would not be any undue influence) and where information can be compared, verified, and acted on.”

One interviewee with attention to detail indicated that a ‘new, fairly radical approach’ might be needed based on the successes of both international, but also African governments. His point was based on all countries’ choice, including South Africa, what is more important in the fight against corruption, punishment or prevention? He provided the examples of South Africa and Botswana.

The point was that the South African people and government have been facing the fight against corruption been only successful when the corrupt are arrested and punished in accordance with the corrupt acts, while the prevention initiatives were considered weak or non- existent. The examples of the Hawks, the National Prosecutor and the SIU were mentioned, and the question arose how their successes, their functions and the reasons of successes or failures were communicated to the people who could learn. The conclusion emanating from such realities pointed to the possibility or probability of a new trend that has been now considered as ‘the foundation’ of anti-corruption success, diagnosis, thorough investigation, widespread education, effectiveness. New operational dynamics planned, structured and implemented through a deep study of the best practices across the world (Interviewee No 8).

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Conclusions and recommendations The key question marks in the minds of anti-corruption leaders, activists, researchers, throughout the public and the private sectors, civil society and the country’s people at large has been revolving since the evening of the 21st of February 2021 around the proposed development of a new anti-corruption entity, the National Anti-Corruption Advisory Council.

This is due to the fact that South Africa has 14 fully operational anti-corruption agencies and bodies it was inevitable that serious research was needed in order to assess whether the existing realities were in need of a ‘a gap analysis’ able to assess the necessity of an additional entity /entity, its nature, structures, functions and future responsibilities, planning and implementation imperatives and above it its benefit. This meant that the benefits and/or challenges of a new agency and its leading/guiding/ organising /supervising role, in short its ‘operational mode’ should be clearly identified and detailed as most cases at such new entities tend to be multi-layered and complex.

Key questions are developing while the processes, realities, future structures, leaderships, relationships, co-operations, planning for efficiency and effectiveness and possible challenges and problems are unfolding. Debates and decisions have continued or will continue on the issue even during a period when even the real need for such an initiative is urgent, mainly because of the fact that there is a multiplicity of anti-corruption bodies and a widely acknowledged solid anticorruption legislation, rules, and regulations.

Those who have questioned and debated the need of a new institution have used legalistic, legal, financial,

functional/structural,

personal/professional knowledge

and experience

and

comparisons associated with the effectiveness, successes, or failures of the country’s existing anti-corruption institutions. Such debates can only be based on comparisons, empirical evidence, analysis and dissection of existing realities, relationships, planning, leadership, functions, structures, success, and failures as well as their foundations. It is such a thoughtful analysis that can lead the government and society at large to trust or not such entities and identify the existing gaps that can move the anti-corruption struggles to the future.

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The research upon which the present document is based utilised primary and secondary sources in South Africa and internationally and included the analysis of the fundamental structures and functions of three successful anti-corruption bodies in African states that incorporate education at all societal levels as integral components of societies based on ethics.

The key findings pinpointed the fact that the two basic foundations of a successful anti-corruption agency or council, are strong political will and well trained, highly educated and ethical personnel.

It was agreed that there could be no successful fight against corruption without the strong support of society, communities and the government and all its institutions. This means that the combination of a political will and the appropriate and careful selection of new people in the proposed agency who undergo regular integrity testing and lifestyle audits can lead to success.

Within this context a careful analysis of the structures, functions, processes, relationships, mechanisms, leadership, political will, independence, priorities, challenges, and problems at all operational and institutional levels can be described as an important lesson for the future. The ethical culture through education to public service personnel at all levels as well as wider society is included in this effort.

Such a team with the characteristics as described above, comprising of a variety of committed members can be instrumental in creating the foundations of a common group understanding, cohesion, commitment and dedication based on ethics that can play an important role not only exposing, but also through planning, designing, preparing, and opening the appropriate path forward. Such a path is the way forward in the process of defeating the culture, planning and actions related to corruption in the public and private sectors and society at large. This is a process leading to the destruction of grand and petty corruption, tackled by a team that can become the key ingredient leading to the transformation, reformation, and re-shaping of an already advanced and multiple administration of justice against corruption, a multi-faced crime against South Africa and its people. Corruption is not only a national threat, but also the root of a daily refutation of the country’s Constitutional aspirations and the vision of the National Development Plan.

We need to have a second legal opinion included to either validate this or venture an alternative position. Should there be an alternative position, then we make the point that the issue be

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workshopped by the legal fraternity before finalising legislation because it needs to stay out of the courts.

A highly interesting position regarding the functions of the new council in terms of the ‘non-trial resolutions’ (NTRs) has appeared recently, a reality that has been described by international research of anti-corruption as a ‘possibility of been critical to the country’s proposed anticorruption council’, despite the indisputable fact that there would be resistance, mainly because of the harsh reality that South Africa has been stripped of an estimated trillion rand as a result of graft.

Within this context an expert researcher on the issue Dr Abiola Makinwa, MICA, a Principal Lecturer in Commercial Law/Anti-Corruption Law, and Policy at the Law Department in The Hague University of Applied Sciences, has indicated that ‘traditional criminal prosecutions are timeconsuming and susceptible to lack of political will and the influence of elites. The sentence was completed with the belief that ‘even when in a traditional court prosecution is successful, it may fail to take the money out of the crime, so the poverty trap continues.’

Inevitably such statements could sound and/or considered as both ‘generic’ and ‘ideological’ in nature but they are founded on scientific analysis and dissection of a multiplicity of legal and court reports internationally and in Africa. It has been shown empirically that throughout the world in the case of global powerful companies, out-of-court settlements would often take place. As official reports have shown leniency has been granted ‘upon the extent to which the company self-reports on acts of corruption and foreign bribery that an anti-corruption agency would not have discovered on its own.

It was thought that as ‘non-trial resolutions’ could be thought to be and escribed as the ‘new kids on the block’, and were being used successfully globally, an analysis of their processes could be useful for the new entity to study (Makinwa, A., 2021a; Makinwa, A., 2021b).

The success of NACAC can only become a reality under seriously and meticulously planned and implemented strategic, tactical and action steps that enable the creation of transparency and accountability. These attitudes and behaviour can guarantee the prevention of corruption risks in the public and the private sectors beginning with the careful and well-researched

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improvements in public finance, including serious attendance to supply chain and procurement realities at all government levels, political and private sector corruption, attention to corruption risks in all parastatals, as well as the police, intelligence, defences, and the health sectors.

One of the key steps leading to the success of NACAC is the creation and actions of an InterAgency Coordinating Council (IACC) organising the inter-agency sharing of strategic intelligence with the active participation of the police and national intelligence, and all anti-corruption agencies themselves. The effective cross-agency cooperation should be based on sufficient authority and resources, capacity and political backing to perform its mandates. (Koranteng, 2020).

Two Progress Reports per financial year will be instrumental in streamlining the monitoring process with the main aim to assess the appropriate planning, designing and implementation process of all 14 anti-corruption entities and the priority areas identified in the National AntiCorruption Strategy 2020-2030 the existing Action Plans. Such a report will be the basis of identifying the achieved outcomes, the existing and future as well as existing challenges and gaps (Quah, 2015).

The relationship between the Monitoring Tool and the Progress Report will include the following realities: The Monitoring Tool identifies the targets, activities, the responsible agency, specific timeframes, partner/s and budget. It should be filled twice a year by the responsible agencies, including the non-governmental organisations who could be participants.

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The ratings take two stages of assessments of the activities undertaken:

1. Stage 1: Assessment Rating:

2. Stage 2: Status Assessment Rating:

1.1. activity is implemented to completion

2.1. no finalisation in the implementation process

1.2. activity implemented to a large extend

2.2. implementation is ongoing till completion

1.3. activity implemented only partially and

2.3. partial or complete suspension of implementation

1.4. activity not implemented at all.

2.4. termination or finalisation of implementation.

Closure of the two stages.

3. Stage 3: Report and Process 3.1. Stage 3.1: Progress report and Monitoring Tool: 3.2. Final assessment is made by Secretariat and Progress Report is prepared

3.3. Progress Report is submitted to the ACC and adopted

4. Stage 4: Monitoring Report 4.1. The Report will be prepared annually by the ACC Secretariat so that the assessment of the implementation processes of the Action Plan activities and achieved results can be prepared 4.2. The Report will be based on the Progress Reports and Monitoring Tool submitted by the agencies that have the key responsibility biannually; consideration to the ratings will be paid attention to and studied thoroughly

4.3. Monitoring Report will be submitted to the ACC for adoption, to the President and Parliament.

(Recanatini, 2011)

5. Stage 5. Evaluation Report 5.1. The Evaluation Report’s most important objective is the assessment of the achieved results prioritising the levels of efficiency, effectiveness, as well as the thorough analysis of the existing situation, the identification of problems, gaps, and challenges in the Action Plan implementation process.

5.2. The Evaluation Report will be prepared once in two years.

5.3. The Assessment of local and international organisation, international ratings, assessment of international and local organisations, research-based, official documents and relevant publications, in-depth interviews, meetings, and debates with representatives from responsible agencies, NGOs or experts will be used in this process.

5.4. The Evaluation Report will be submitted to the ACC, NACAC, the South African Parliament and the President (UNDP United Nations Development Programme 2011).

The planning, development and implementation of the Monitoring and Evaluation Framework is the foundation upon which NACAC will be enabled will to integrate effectiveness in the overall management framework, a positive way forward to success.

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In the process of seeking continuous success in the fight against corruption, NACAC’s leadership and Secretariat should see as one of the key priorities from the beginning the creation, development, and continuation of a set of objectives, well-thought, comprehensive and reliable indicators enabling the assessment and measurement levels as the most important guide to the fulfilment pf the entity’s aims and objectives.

Given the existing Pan-African guidelines, laws, rules, regulations, and memoranda of anticorruption agreements the participation of all organisations and entities the direct and continuous communication with key anti-corruption agencies and organisations is compulsory including the African Development Bank, the African Union Advisory Board on Corruption, the anti-corruption bodies of Sub-Saharan and Southern African countries and the United Nations Development Programme (UNDP). Common meetings, debates, exchange of ideas, conferences, and regular communication are or could be serious contributors in the development of effectiveness indicator/s. The key institution in such processes is the African Development Bank whose leadership is considered vital in the development and continuation of an African common effectiveness agenda (OECD 2017; NCPA 2019).

NACAC in collaboration with all key anti-corruption agencies are the foundations of the developmental path leading to strategies and tactics opening the paths of improved collaboration and coordination among all law enforcement agencies at country level and at regional level through multilateral cooperation. Such initiatives can be achieved through the introduction of regular meetings and follow-ups that are instrumental in ensuring one of the most important tools in understanding the dynamics of corruption and its types through the sharing of experiences and best practices against them. Contact with regional organisations and networks including civil society entities lead to expanded and useful relations and exchanges of research, ideas, realities, and knowledge and are instrumental in enriching new planning developments and ways forward to increasing innovation and effectiveness at all levels (World Economic Forum 2018; UNODC 2019).

In fact, one of the interviewees who considered himself very lucky to be a participant in regional conference and an integral part of the processes leading to formal resolutions after crucial debates, indicated that as NACAC will be an integral part of the African Union Summit, the SADC (Southern African Development Community) Summit and the Conference of States Parties to the

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United Nations Convention against Corruption (UNCAC), the possibilities for success and effectiveness multiply.

The creation of a new establishment like NACAC will inevitably create the hopes and aspirations for a new entity enabled to achieve results where others have failed and to meet all expectations raised by the country’s senior political and administrative leadership. It is within this context that it is the sheer responsibility of the leadership and Secretariat of the agency not only to achieve the effectiveness expected through its functions, but also the processes of evaluation that is the assessment of the processes and outcomes at all levels of institutional operations. The outcomes of such an exercise are rooted on the comprehensive

pre-execution method of the

measurements of achievements leading to excellence against goals, aims, objectives, milestones, and objectives. The processes leading to unsuccessful outcomes to be thoroughly researched in the effort to analyse and dissect the reasons which determine the causes and effects of the failure of operations, as well the policy implementation and tactics in terms of effective outcomes.

Thus, eradicating corruption remains a very difficult and complicated challenge despite all sophisticated means provided by the state finance but can nevertheless be brought under control (Barrett, et.al 2020:75-76; Camperle, 2018:158-159).

The existing realities associated with countries throughout the world that are not as corrupt as the vast majority such as Singapore, New Zealand, Sweden, or Finland that are on the top of the widely acknowledged Transparency International Corruption Perceptions Index (CPI), a reality pointing to the truth that despite the success against corruption at least a minimal percentage of it will exist always.

To be ‘thoroughly effective’ in the fight against corruption is always considered a very important achievement because everything in life relies on existing comparisons. This is due to the fact that the lack of objectivity in comparisons has its own boundaries when it comes to functional, organisational, and institutional effectiveness in the fight against corruption (Schütte, 2017).

This means that it is relatively easy to compare countries in relation to their own economic and financial development, because such analyses and dissection are directly related with issues that can be scientifically calculated such as a country’s Gross National Product, growth rate realities or per capita income. ‘Successes within the parameters and the purpose of this study related directly

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and indirectly with NAPAC can be considered as ‘synonymous with effectiveness,’ a reality of the present and the future destined to be a new struggle for those involved (Kuris, 2015:127).

Conclusion However, it needs to be said that while effectiveness indicators are synonymous with realities and parameters that pinpoint success or/and the extent to which the expected outcomes or predetermined goals have been reached, such success is difficult if not impossible to achieve without strong and uncompromising political will steeped in honest and ethical leadership and the wellselected, honest, ethical, and trained personnel at all operational levels.

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This report has been published by the Inclusive Society institute, in partnership with the Stellenbosch University School of Public Leadership (SPL) Inclusive Society Institute PO Box 12609 Mill Street Cape Town 8001 Phone: 021 201 1589 Email: info@inclusivesociety.org.za

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Stellenbosch University School of Public Leadership PO Box 610 Bellville 7530 Phone: 021 918 4122 Email: enquires@spl.sun.ac.za