Crimes of a Political Nature Study Unit 1 PDF

A Southern African Perspective on Fundament al Criminology Chapter 11 Crimes of a political nature State crime A term also referring to political crime. tender-rigging An action or series of actions that interfere with the public tendering process in order to benefit a specific supplier in an...

A Southern African Perspective on Fundament al Criminology Chapter 11 Crimes of a political nature State crime A term also referring to political crime. tender-rigging An action or series of actions that interfere with the public tendering process in order to benefit a specific supplier in an unfair manner. whistle-blowing former members of the organisation or other people who have detailed insight into what is going on in the organisation. STUDY OBJECTIVES After reading this chapter, you should be able to: ◊◊ explain the factors that lead to organisational crime, in public and private environments ◊◊ define political crime ◊◊ list the various types of political crime ◊◊ identify some issues and debates about political crime ◊◊ define corruption ◊◊ discuss cases of corruption related to the South African government in South Africa ◊◊ discuss politically related crime during apartheid in South Africa ◊◊ discuss the nature of political crimes throughout the world ◊◊ explain the post-colonial problems of governance in the rest of Africa ◊◊ identify recent cases of political crime in the rest of Africa and elsewhere ◊◊ describe the relationship between corruption and the private sector ◊◊ discuss corruption in the policing domain, and ◊◊ be aware of key steps to fight corruption in South Africa. Introduction to political crime Governments and politicians are servants of the people. Since the dawn of democratic governance, the populace had an unwritten social contract with the government to protect them and to ensure that their best interests are guaranteed. We need to understand the causes of crimes by governments against the populace who vote them into power. We also need to know what the consequences are when governments and officials commit crime or other unacceptable conduct in the current era of human rights. There is a myriad of ways by which government departments, officials and politicians can do damage to their own people, instead of being their protectors of freedom and their champions of service delivery. The history of South Africa’s political situation makes it even more important that public service governance must serve the best interests of the population. The string of service delivery protests against local governments' inefficiency and stories of incompetence at the various national government departments, all point to systematic problems and inefficient governance. In addition to poor service delivery, the South African populace are currently confronted with issues such as State capture, nepotism, ineffective leadership and dishonesty on all levels of governance. MINI GLOSSARY Batho Pele Principles A set of eight principles that the South African government developed as a policy to guide public sector strategies and performance, namely consultation, service standards, access, information, courtesy, openness and transparency, redress and value for money. Batho Pele means ‘people first’. constitutional State A State governed by the Constitution; the term ‘constitutional democracy’ depicts a State that has a constitution and an effective democracy, which South Africa is considered to have. corporate crime Includes all forms of crimes committed by corporations in their juristic capacity, usually committed in the interest of the corporations to make a profit or benefit in some way. governance The process of governing a country or an organisation, where ethical behaviour, trans- This chapter offers an overview of different politically related crimes and primarily deals with selected forms of political crime in the South African and the African context. Post-colonial governance failure in Africa and high levels of police corruption are rife in many developing countries. Since the police forms part of the government structure, it is deemed as a barometer of the levels of political crime in a country. Schafer observed that in the 20th century already, most profound changes in any society were political. This saw “the rise and fall of empires, charismatic leaders, races, classes and social systems” which were dominant features of these changes, almost “without exception these changes involved political crime” (Schafer, 1971:380). Political crimes have a distinct character and differ in context and content in comparison to conventional crimes. Before embarking on a discussion of political crimes, read through the following case study and media article attentively. parency and accountability are emphasised. political crime An inclusive term that describes various crimes that are committed by elected officials and those employed by the State. Rule of Law Index An index that can be used to measure to what extent governments, their officials and agents are held accountable for upholding the law of the land. social contract An understanding between the population and the government, in which the government guarantees the impartial protection and governance of all its citizens and promises that those in government institutions will act in the best interests of all citizens. CHAPTER 11 Crimes of a political nature The act of disclosing information about illegal or other undesirable practices occurring inside a public or private organisation. The disclosure may be made by current or C Bezuidenhout, A Kempen and GX Ngantweni 417 418 A Southern African Perspective on Fundament al Criminology Social contract between government and the people South Africa has, since 1994, an inclusive majority government determined by regular local provincial and national elections. Measured against world standards, the rate of participation in these elections is satisfactory. Public representatives are in an unwritten social contract with the South African people to serve them because they were democratically voted into a position to do so. The same could be argued for those who are employed by the State to render services to the population, even though they have not been elected to do so, but have been appointed in these posts (for example, the police are paid a salary from the tax money the populace pay to the government). The Constitution of the Republic of South Africa, Act 108 of 1996 (the Constitution) is one of the most progressive in the world. Its Bill of Rights section sets out a wide range of political and socio-economic rights, which according to section 7(2), “the State must respect, protect, promote and fulfil”. The fact that all government entities derive their mandate from the Constitution or enabling legislation constitutionally strengthens the social contract between the government and the people. Even when the people are unable to enforce their rights or challenge the State against unjust action, they are aware when government entities or individuals in the employ of the State violate the spirit of this social contract. To this effect, Solomon (1995:95) states that we have an uneasy relation with the vast bureaucracies that “operate only with our consent”. In established democracies, the power of the ballot through which governments can be changed is feared by politicians, which to date has not been utilised in South Africa and many African countries. This is despite an often widespread public opinion that the social contract has been violated. One example here is the unwillingness of many voters in Zimbabwe during the term in office of the late President Robert Mugabe, to vote against him. In spite of widespread social-economic downfall and intimidation, voters did not vote decisively for the opposition. There are several countries in the world and Africa where the social contract or democratic creed of honest and just government services was initially promised but never came to fruition. This is also the case on many government levels in South Africa where, instead of an open, transparent, believable, democratic governance structure and administration, the South African population is confronted by endemic levels of corruption, power struggles and dishonesty. Martinez-Vasquez, del Granado and Boex (2007:13) refer to theoretical models that have focused on determinants of corruption and its interaction with institutional and economic factors. Some of these can be summarised as follows: • The agency model of corruption. This model is regularly used in political science and economics of crime and focuses on the agents’ decision to partake in corruption. The agent in this case is the public official who decides to commit corruption, at any level. An official who partakes in a corrupt activity undermines the mandate and violates the social contract. A public official who allows friends and family to tender for a government project for the people and favourably allocates the project in favour of them even where better tenders were received falls into this model of corruption. In turn he or she will expect ‘kickbacks’ (commissions). • Structure of government institutions and corruption. The extent of decentralisation and the rigidity of control by central government on lower levels of government as well as on transactions in which corruption may be easily committed, have an effect on the overall levels of corruption. The Electricity Supply Commission (Eskom), a State-owned power utility, received a massive R200 billion contract to build one of its many intended power stations. When asked about the ruling African CHAPTER 11 Crimes of a political nature 419 National Congress’s involvement through its Chancellor House arm in the contract, Ms Barbara Hogan, who served as the Minister of Public Enterprises between 2009 and 2010, noted, “a conflict of interest in the sense that the ruling party benefitted from this thing? Yes certainly, it’s not desirable …” In this case, a ruling party that preaches a tough stance against corruption but is equally involved in transactions that enrich it at the expense of the ordinary citizen, has also violated the social contract. The Minister made the remarks shortly after it was announced that Eskom would get a 25% tariff increase, every year for three years, in part to fund its capital projects, from which the ANC is benefiting. Ironically, the money as well as the tariff increase did not save the power utility at the time, since the Minister of Finance, Mr Tito Mboweni had to find more money to keep South Africa’s lights burning. In July 2019, the Minister proposed additional funding support of R59 billion over the next two financial years to help the embattled power utility meet its financial obligations, by introducing the Special Appropriations Bill aimed at assisting Eskom with additional financial support. Given the background of the benefit that the governing party also derived from the contract referred to earlier, it was ironic that the Minister of Finance said that at the introduction of the first reading of the Special Appropriation Bill to the National Assembly on 23 July 2019, that Eskom presents the biggest risk to the fiscal framework because of its financial difficulties and its negative impact on the lives of ordinary South Africans (South African Government News Agency, 2019b). The beleaguered power utility posted a loss of R20,7bn for the 2018/19 financial year, an 800% increase from the R2,3bn loss in the 2017/2018 financial year (News24, 2019). Eskom and the multi-billion rand mega projects that could have saved SA By Melanie Gosling, Fin24  Corruption and State capture are major reasons why coal plants Medupi and Kusile are not delivering electricity as planned and why South Africa is facing crippling blackouts, say energy experts. Kusile and Medupi, the third and fourth largest coal power plants in the world, were originally due to come online in 2014 and 2012 respectively, which would have given the country an extra 9600MW of power, enough to avoid blackouts. In 2019 both are still under construction. When Eskom announced in 2007 that it was to build the two new mega coal power plants, the cost of Medupi was just under R70bn and 420 February 13 2019 Kusile R80bn. The latest costs are now R208bn for Medupi and R239bn for Kusile. While some of the units have come online and are generating electricity, they have been plagued by problems. Eskom calls these “design faults” and says it will cost R8bn to rectify. Mammoth projects Some experts say that is par for the course with mega projects worldwide, now regarded as outdated because of the almost inevitable time delays and cost overruns that go with massive projects. A Southern African Perspective on Fundament al Criminology Others, while acknowledging this, say there was a lack of oversight and control over the projects from an early stage, which paved the way for corruption. Energy expert Hilton Trollip of UCT’s Energy Research Centre, said there were serious problems with Medupi almost from the start, but they were not investigated. “Unless we are so punch-drunk that we don’t think the ANC’s role and benefits in Hitachi Africa, Chancellor House and Medupi contracts were not a clear signal, already reported in 2007, that prosecuting authorities would turn a blind eye to blatant corruption – and what the results of that would be,” Trollip said. When the problems around lack of transparency became systemic, National Planning Commissioner Anton Eberhard had recommended a probe, but nothing had been done. “Once the conditions for both corruption and impunity had been established at the levels they were in Eskom, and as it become clearer that this impunity persisted, it became increasingly likely that things would develop along the path they have. By now there are so many beneficiaries, large and small, throughout the Eskom ecology, and the culture is so entrenched, that rooting them out within the existing institutional structure is not credible,” Trollip said. Jesse Burton from UCT’s Energy Research Centre agreed that corruption and State capture had been serious underlying factors in the delay and cost overruns of Medupi and Kusile. “Corruption added to all of the problems, as seen by the Gupta leaks and the State Capture inquiry.” Eskom has also acknowledged this. Andrew Etzinger, a senior manager in demand management at Eskom, said on Cape Talk on Tuesday that corruption and State capture had “wreaked havoc” on the utility, but it had also been “massively damaging in diverting attention away from critical technical issues in Eskom.” Other problems with Medupi and Kusile included labour issues and lack of capacity at Eskom to manage mega projects. Serious mistakes Engineer and energy analysts Chris Yelland said it had been a bad idea even to start with building the massive coal plants, and there had been some very serious mistakes made during construction. “If Medupi and Kusile had delivered electricity on schedule, we would have an extra 9600MW and we would not have load shedding today.” Yelland acknowledged that Eskom’s problems were “multi-faceted”. One of them was that because Medupi and Kusile were way over schedule, Eskom had to run old coal power plants. “They’re being pushed to their limits and their performance is getting worse”. ‘Eskom wasn’t up to the job’ A major reason for the delays and cost overruns was because Eskom had decided it would be the designer and project manager, a massive task. “It’s not how it should have been done, because Eskom wasn’t up to the job. I once asked (former Eskom CEO) Brian Dames why Eskom had not given the management contract to another company, and he said because no one would take it on. So Eskom in its wisdom decided to do what the world’s main contractors decided not to do,” Yelland said. Eskom had neither the resources nor the skills to handle the two mega projects. It had been over 20 years since Eskom had built a power station when it decided to build the two big projects, and by then much of the skilled staff had left, Yelland said. Because the cost of renewable energy was coming down all the time, Eskom may find Medupi and Kusile were stranded assets. “The cost of solar PV is five times cheaper than it was 10 years ago. Renewable energy costs 62c a kilowatt-hour in South Africa today, whereas the cost from new coal plants is over R1 a kilowatt-hour. And the cost of Medupi and Kusile is going up all the time.” Yelland said in the short-term Eskom should get all its generators up to shape with proper maintenance. Then it should “unlock new CHAPTER 11 Crimes of a political nature 421 electricity supply” by allowing extensive rooftop solar PV installation. “Thirdly they must scale up renewable energy to deliver electricity in two to three years. The Independent Power Producers’ Programme needs to be accelerated. “Finally, any new coal plants must be taken off the drawing board,” Yelland said. Bleeding money Burton and colleagues have done research on the two mega plants and concluded that it would be cost effective for Eskom to walk away from completing Kusile’s last two units. “To carry on, would be pouring good money after bad,” she said. Burton said mega projects almost always ran into cost and time overruns and also lent themselves to corruption because of the difficulties in managing such enormous projects. Originally Medupi was going to be only three units, then was expanded to six. Then Eskom decided to build Kusile as well, with another six units. Burton said wind and solar energy was more expensive than coal when Medupi and Kusile were planned, so renewables had not been a cost-effective option for Eskom. However, had Eskom gone for smaller projects, they would have had more flexibility, and by the time the cost of renewables was declining rapidly, the utility could have cut back on building coal and brought on renewable energy. Instead, it was locked into two massive coal plants, Kusile 4800MW and Medupi 4764MW. Burton said research had shown that the most cost-effective option for South Africa’s electricity expansion was an extensive renewable energy programme with some sort of flexibility to complement this. “By flexibility it could be gas, or it could be something like a more flexible or better sort of demand management”. Brent Flyvbjerg of Oxford University explains that megaprojects are not just bigger versions of small projects, but are a “completely different breed of project in terms of complexity”. He illustrates this by saying if the manager of a conventional project needs the equivalent of a driver’s licence to do what he had to do, then the manager of a megaproject would need the equivalent of a pilot’s jumbo jet licence. “And just like you would not want someone with only a driver’s licence to fly a jumbo, you don’t want a conventional project manager to manage a megaproject,” Flyvbjerg said. Source: Fin24. Reproduced by permission of Gallo Images/Fin24. Definition of key concepts Before one can take a look at political crimes against the populace, one should have a clear understanding of certain key concepts. The following concepts will be defined: political crime, organisational corruption, and State capture. Political crime Political crime is most often seated in a specific ideology or impetus. No specific category exists for ‘political crime’ in the South African Police Service (SAPS) Crime Administrative System (CAS). Political crime is also referred to as State crime or crimes by the State to the detriment of its people. Kauzlarich (2007:67) notes that while mainstream criminologists have historically ignored 422 A Southern African Perspective on Fundament al Criminology the problems of war and State violence, critical criminologists focus on how inequality and power impact upon and reflect on law-making, law-breaking, victimisation, reactions to crime and social harm. Rothe and Ross (2008) also lament the marginalisation of political crime in most introductory criminology textbooks in the American market. Ross (1998:332) insists that crimes by the State should be outlined as: cover-ups, disinformation, unaccountability, corruption, violation of a domestic and/or international law, but also those practices that, although they fall short of being officially declared illegalities, are perceived by the majority of the population as illegal or socially harmful. Some of the past atrocities of governments cannot be ignored and marginalised to merely unfortunate historical events, since these atrocities have a long-lasting and negative effect. The following are some examples of political crimes that had a significant impact on humanity: ◊ ◊ ◊ ◊ ◊ the Holocaust during Hitler’s reign the killing spree under Idi Amin Dada in Uganda during the 1970s apartheid laws in South Africa the political repression, economic downfall, land grabbing and politically motivated murders committed in Zimbabwe during the Robert Mugabe era, and the South Sudanese Civil War, where the ongoing conflict in South Sudan has killed and displaced hundreds of thousands of people because of the political conflict between forces of the government and the opposition forces. Governments can be regarded as organisations created ‘by the people for the people’. When governments commit crime, they are acting against the will of the people. It is therefore important to contextualise crime committed by a government against the backdrop of organisational crime. Shover (2009:590) defines organisational crime as “the violation of statutes committed in pursuit of the goals of legitimate organizations” its sub-units or work groups. In the South African context, corruption is the most common form of organisational crime in the public sphere. Organisational crime is categorised as an all-encompassing concept that includes criminal acts by non-profit entities such as government departments, non-government organisations (NGOs) (for example, charity organisations), religious organisations and other non-profit entities. A sub-category of organisational crime is corporate crime. Corporate crime is committed by organisations whose ultimate goal is to make a profit. Thus, corporations ordinarily do not commit political crime, unless it is in collaboration with a political entity or to advance political reasons (for example, dubious arms deals between government and private companies). There are a variety of reasons that influence public and private organisations to commit crime in different regions of the world. But some commonalities exist, namely the so-called culture of non-compliance, new social class structures, or a struggle between two opposing forces/parties within the political domain. This is the case when criminal justice and civil society institutions are so weak to the extent that governments lose a sense of accountability. Factors such as economic trends (for example, a global economic recession), realistic chances (for example, the power to sign a binding contract), and the severity of punishment (for example, where CHAPTER 11 Crimes of a political nature 423 no government will assist an offending party to save face) should all be viewed as possible trigger mechanisms to get involved in political crime or a combination of organisational and political crime (Shover, 2009:592). Corruption is currently one of the most frequently committed crimes by government officials, parastatal employees and public officials in South Africa. According to Transparency International’s Corruption Perception Index 2018, South Africa ranks 73rd out of 180 countries with a score of 43 out of 100. The index ranks 180 countries and territories by their perceived levels of public sector corruption according to experts and business people, and uses a scale of zero to 100, with zero indicating highly corrupt and 100 indicating very clean countries (Transparency International, 2018). Corruption is a statutory crime committed in both the public and private domains. The difference is that corruption by private companies is usually detected, processed and punished, whereas corruption by the government or government officials is shrouded in secrecy and masked by means of deceptive manoeuvres. Von Holdt (2019) believes that the current wave of corruption in State and parastatal organisations is embedded in the formation of specific classes in society and more specifically the so-called new black elitist group that has been gaining prominence in the past few years. Apparently, a divide exists where one section of this group is righteous and trying to achieve holistic goals to the betterment of all, while the other group leans towards self-enrichment and gluttony to the detriment of society. In a United Kingdom case of 1996, Lord Lloyd defined a political crime as such only if: ◊ ◊ it is committed for a political purpose, of overthrowing or subverting or changing the government or inducing it to change its policy, and there is a sufficiently clear and direct link between the crime and the political purpose (Hopkins, 1996:418). Crimes committed by people with direct and indirect political power, which they would not ordinarily commit if they did not have that power, ought to be political crimes. In the same vein and in spite of the political changes that happened in South Africa during the past 25 years, one has to take note of a remark made by Delia Ferreira Rubio, the Chair of Transparency International who said: Corruption is much more likely to flourish where democratic foundations are weak and, as we have seen in many countries, where undemocratic and populist politicians can use it to their advantage (Transparency International, 2018). Steinacker (2010:11) further notes that the Auditor-General’s 2009 report included “more than 2000 national government officials” who were “responsible for over R600 million worth of tender-rigging and corruption” while provincial government officials were responsible for another R540 million under the same circumstances. Van Vuuren, (2004:12) compared the 1998 and 2003 national victims of crime surveys conducted by Statistics South Africa on behalf of the Department of Safety and Security and found that these suggest almost a triple increase from 2% to 5,6%. Despite widespread allegations by trade unions and civil society organisations that South Africa has lost R700 billion to corruption over the past two decades, the fact-checking organisation, Africa Check, could find no 424 A Southern African Perspective on Fundament al Criminology evidence to support this claim (Chiumia & Van Wyk, 2015). Although credible updated statistics regarding the extent of corruption are hard to find, the non-profit organisation Corruption Watch notes in its 2018 report that in terms of their whistle-blowing reports, the sectors that were mostly reported on were as follows: ◊ ◊ ◊ ◊ ◊ ◊ “any person who is a member, an officer, an employee or a servant of a public body, and includes – (a) any person in the public service contemplated in section 8(1) of the Public Service Act, 1994 (Proclamation No. 103 of 1994); (b) any person receiving any remuneration from public funds; or (c) where the public body is a corporation, the person who is incorporated as such, but does not include any – (a) member of the legislative authority; (b) judicial officer; or (c) member of the prosecuting authority;..” provincial government departments (35%) national government (27%) local government (23%) other (non-specified) (6%) private sector (5%) State-owned entities (4%) (Corruption Watch, 2019). Corruption is a complex crime that requires collaboration between two or more parties. As shown above and through the elaborate effort to fight it, corruption is frequently committed by government officials in South Africa. It is thus useful to give the full definition of the “general offence of corruption” according to section 3 of the Prevention and Combating of Corrupt Activities Act 12 of 2004: Furthermore, section 4 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 provides as follows: “4. Offences in respect of corrupt activities relating to public officers (1) Any – (a) public officer who, directly or indirectly, accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or (b) person who, directly or indirectly, gives or agrees or offers to give any gratification to a public officer, whether for the benefit of that public officer or for the benefit of another person, in order to act, personally or by influencing another person so to act, in a manner – (i) that amounts to the – (aa) illegal, dishonest, unauthorised, incomplete, or biased; or (bb) misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; (ii) that amounts to – (aa) the abuse of a position of authority; (bb) a breach of trust; or (cc) the violation of a legal duty or a set of rules; (iii) designed to achieve an unjustified result; or (iv) that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of the offence of corrupt activities relating to public officers. (2) Without derogating from the generality of section 2(4), “to act” in subsection (1), includes – (a) voting at any meeting of a public body; (b) performing or not adequately performing any official functions; “Any person who directly or indirectly (a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or (b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person, in order to act personally or by influencing another person so to act, in a manner (i) that amounts to the (aa) illegal, dishonest, unauthorized, incomplete, or biased; or (bb) misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; (ii) that amounts to – (aa) the abuse of a position of authority; (bb) a breach of trust; or (cc) the violation of a legal duty or a set of rules; (iii) designed to achieve an unjustified result; or (iv) that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of the offence of corruption.” For the purpose of this discussion it is also important to take note of the provisions of section 4 of this same Act, the Prevention and Combating of Corrupt Activities Act 12 of 2004, which relates to corruption perpetrated by public officers, whom are defined in the Act as: CHAPTER 11 Crimes of a political nature 425 426 A Southern African Perspective on Fundament al Criminology In recent years State capture has been resonating on all media platforms although most South Africans probably first heard of this concept after the then President Jacob Zuma, came into power. Not all South Africans are aware of the true extent and influence of the Gupta family on the economy, as it was not a general discussion point until the former Public Protector, Adv Thuli Madonsela, released a report entitled State of Capture in late 2016. “This document highlights how the ZumaGupta patronage network used State companies to enrich themselves” (Madonsela, 2019:113). Varraich (2014:25) argues that State capture is the latest form of corruption. In layman’s terms, State capture occurs when politicians allow private individuals or companies to shape politics to their own monetary advantage and to receive benefits from this arrangement. In most cases, the arrangement is to the detriment of the broader society since it undermines the efficiency of the State through the provision of poor service quality and the appointment of less-than-capable people (Martins & Solomon, 2016:21). (c) expediting, delaying, hindering or preventing the performance of an official act; (d) aiding, assisting or favouring any particular person in the transaction of any business with a public body; (e) aiding or assisting in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person in relation to the transaction of any business with a public body; (f) showing any favour or disfavour to any person in performing a function as a public officer; (g) diverting, for purposes unrelated to those for which they were intended, any property belonging to the State which such officer received by virtue of his or her position for purposes of administration, custody or for any other reason, to another person; or (h)  exerting any improper influence over the decision making of any person performing functions in a public body.” Many forms of political crime emanate from some or other facet of corruption. International and regional instruments and legislation in other countries have similar provisions and include the United Nations Convention against Corruption (UNCAC), 2003; the United Nations Convention against Transnational Organized Crime (UNTOC), 2000; the African Union Convention on Preventing and Combating Corruption (AU Convention), 2003; and the Southern African Development Community Protocol against Corruption (SADC Protocol). In support of the above, the following should be incorporated in the explanation of the concept ‘corruption’, namely that corruption is: ◊ ◊ an attempt by individuals and groups to subvert existing rules and generate extra-legal income and wealth for themselves (Public choice theory, Mbaku, 2007:4), and/or an abuse of entrusted power for private gain (Transparency International, 2009:7). In public service organisations, there is a need to offer a simplified understanding of what constitutes corruption. The extent of corrupt practices in government departments such as Correctional Services, the police and Home Affairs, creates doubt about whether those who have committed these acts have even a basic understanding of corruption. To this extent, a report issued by Corruption Watch (2019) in June 2019 entitled Corruption in uniform revealed that during the seven-year period of this organisation’s existence, 5,9% (1 440) of the almost 24 500 reports of corruption were related to the police (SAPS). As part of implementing the Public Service Anti-Corruption Strategy, a set of guidelines were developed, on the assumption that a public service entity had yet not made anticorruption initiatives (DPSA, 2006). This document highlights the following manifestations of corruption by South African government officials that need urgent attention: fraud, abuse of power, embezzlement, conflict of interest, bribery, favouritism and nepotism, extortion and insider trading (this refers to the abuse of privileged information for self-enrichment). CHAPTER 11 Crimes of a political nature 427 The Mail and Guardian (2018) defines State capture as “the efforts of a small number of people aiming to benefit from the illicit provision of private gains to public officials in order to profit from the workings of a government”. Martins and Solomon (2016:21) set forth a wider definition of State capture as “the actions of individuals or groups both in the public and private sectors, influencing the formation of laws, regulations, decrees and government policies to their own personal advantage”. This latter definition finds application in many of the testimonies that have already been heard before the State Capture Commission detailing corrupt relationships between State actors and private individuals, to the detriment of the community. The Estina Vrede dairy farm project was supposed to have benefitted 80 beneficiaries from the local community, yet the millions allegedly found its way, through a complex web of local and international transactions, to the infamous Gupta family (Maimane, 2017). This ‘Judicial commission of inquiry into allegations of State capture, corruption and fraud in the public sector including organs of State’ (‘the State Capture Commission’), was established by the President by proclamation in the Government Gazette in terms of section 1 of the Commissions Act 8 of 1947 “for the purpose of investigating matters of public concern” (Lambrechts, 2019:66). Robert McBride, the head of the Independent Police Investigative Directorate (IPID) at the time noted in this Department’s Annual General Report 2017/2018 that IPID was the first institution to call out State capture in the criminal justice cluster. He confirmed that it had already started investigations into the role of police officials for defeating the ends of justice to undermine investigations into allegations of State capture and was looking forward to working with the State Capture Commission (IPID, 2018:10). CRITICAL THINKING ACTIVITY Research any of the types of political crime in South Africa in detail. Prepare two opposing arguments by means of role-play. The one side must represent the perpetrators and the other side the victims. The perpetrator’s argument must find the motivation for and the positive consequences of that crime and make a strong case why the crime was or is justifiable. The victim’s argument must present the extent of the suffering and the long-term consequences of the crime. 428 A Southern African Perspective on Fundament al Criminology Explaining political crime Political crime requires understanding on many levels of governance and on a macro scale. Throughout the world, and as part of promoting democracy in developing countries in particular, there has been a concerted effort by international, regional and national State and non-State organisations to strengthen capacity in society and to prevent the various forms of political crime. To support the above statement, an example in the Rule of Law Index (2009) can be used. The Index seeks to establish constitutional and institutional mechanisms that limit the powers of government and which can be used to hold a government, its officials and agents accountable under the law. It is stated in the Index that the notion that those who govern are subject to law is a single litmus test for the rule of law. Despite these notions to deal with corrupt governments and their corrupt officials by means of the law of the country, many cases of corruption are still perpetrated. It is difficult to explain why governments and officials commit crime in their positions of power but certain indicators could be used to explain political crimes. In countries where there have been long histories of political crime, one of the following indicators of good governance is often lacking or non-existent: ◊ ◊ ◊ ◊ ◊ ◊ The powers of the government, its officials and agents are limited by governmental and nongovernmental checks. The fundamental law distributes powers among the organs of the government in a manner that ensures that each is held in check. The government has formal processes for independent auditing and review of its agencies. The executive branch of the government provides the latest and accurate information to the legislature and the judiciary is subject to such procedures as may be reasonably necessary to protect sensitive information. The government provides up-to-date and accurate information to the public and the media, subject to exceptions provided for by the law. Government officials and agents, members of the media and persons who report official misconduct are protected from retaliation (The World Justice Project, 2009). Therefore, it seems that what makes societies susceptible to political crime is predominantly ineffective accountability mechanisms, even in those countries where there are such provisions in law or procedures of government (for example, South Africa and Botswana). Although Botswana is popularly known as the second least corrupt country in Africa, ranking 34th out of 180 countries on Transparency International’s Corruption Perceptions Index 2018, corruption remains a problem (Seleke, 2010). One of the causes of political crime is that those in senior positions as politicians or officials ignore the basic tenet of the public service, namely being ‘a servant to the people’. At election time and among their fervent supporters, irrespective of the means being used to demonstrate this, politicians in particular invoke this principle to win the vote. Democracy, good governance, peace, security, stability and justice are perceived as critical factors necessary to create socio-economic development and positive growth. As far back as the 1998 Report on the Causes of Conflict and Promotion of Durable Peace and Sustainable Development in Africa, the United CHAPTER 11 Crimes of a political nature 429 Nations Secretary-General recognised that conflicts and development should be addressed through a comprehensive framework of governance that recognises the root causes of conflict and charts the potential for sustainable development (Brown & Magilindane, 2004:116). This view presupposes a commitment to: ◊ ◊ ◊ the promotion of human rights, the rule of law and an equitable social order, as the foundation for national and continental stability the assurance that political organisations do not promote religious, sectarian, ethnic, regional or racial privileges, and the maximum expansion of democratic freedoms, including freedom from hunger, disease, ignorance and access to the basic necessities of life. This implies that basic service delivery in an environment of understanding and honesty should be in the offing. The first democratically elected administration in South Africa developed a set of principles that would guide the conduct of all its officials, namely the Batho Pele Principles. ‘Batho pele’ is a Sesotho word meaning ‘people first’. It is an instructive document that establishes sound ideals that could be expected in a democratic and progressive country where the vast majority of the population is either living in poverty or is at some other disadvantage. Had the letter and the spirit of the principles been taken to heart by all public officials, corruption would have been less rife. Batho Pele Principles Eight Batho Pele Principles were developed to serve as acceptable policy and legislative framework regarding service delivery in the public service. These principles are aligned with the Constitutional ideals of: • promoting and maintaining high standards of professional ethics • providing service impartially, fairly, equitably and without bias, and • utilising resources efficiently and effectively. The Batho Pele principles are as follows: 1. Consultation There are many ways to consult users of services including conducting customer surveys, interviews with individual users, consultation with groups, and holding meetings with consumer representative bodies, NGOs and CBOs. Often, more than one method of consultation will be necessary to ensure comprehensiveness and representativeness and about the choice of services on offer to the people. Consultation is a powerful tool that enriches and shapes government policies such as the Integrated Development Plans (IDPs) and its implementation in local government sphere. 2. Setting service standards This principle reinforces the need for benchmarking to constantly measure the extent to which citizens are satisfied with the service or products they receive from government departments. It also plays a 430 A Southern African Perspective on Fundament al Criminology critical role in the development of service delivery improvement plans to ensure a better life for all South Africans. Citizens should be involved in the development of service standards. Standards that are precise and measurable are required to enable users to judge for themselves whether or not they are receiving what was promised. Public servants are encouraged to welcome complaints as an opportunity to improve service, and to deal with complaints so that weaknesses can be remedied quickly for the good of the citizen. 8. Value for money Many improvements that the public would like to see often require no additional resources and can sometimes even reduce costs. Failure to give a member of the public a simple, satisfactory explanation to an enquiry may for example, result in an incorrectly completed application form, which will cost time to rectify. To achieve the goal of making South Africa globally competitive, standards should be benchmarked (where applicable) against those used internationally, taking into account South Africa’s current level of development. 3. Increasing access  One of the prime objectives of Batho Pele is to provide a framework for making decisions about delivering public services to the many South Africans who do not have access to such. Batho Pele also aims to rectify the inequalities in the distribution of existing services. Different examples of initiatives by government to improve access exist. Access to information and services empowers citizens and creates value for money, quality services. It reduces unnecessary expenditure for the citizens. 4. Ensuring courtesy This goes beyond a polite smile, or the words ‘please’ and ‘thank you’. It requires service providers to empathise with the citizens and treat them with as much consideration and respect, as they would like for themselves. The public service should be committed to provide continuous, honest and transparent communication with the citizens. This involves communication of services, products, information and problems, which may hamper or delay the efficient delivery of services to the promised standards. If applied properly, this principle helps demystify the negative perceptions that citizens in general have about the attitude of the public servants. 5. Providing information As a requirement, available information about services should be provided at the point of delivery. But for users who are far from the point of delivery, other arrangements are required. Managers and employees should regularly seek to make information about the organisation, and all other service delivery-related matters available to fellow staff members. 6. Openness and transparency When the number of complaints against service delivery departments are considered and the corruption by government officials in power unveiled on a daily basis, one could argue that many government departments and officials have not embraced these Batho Pele principles. The culture of non-compliance, a poor record of ethics in government and a lack of awareness about the dangers of corruption all contribute to the problem. The failure to observe the Value for money principle is at the heart of wasteful, fruitless and reckless government expenditure that often constitutes corruption, fraud, money laundering, racketeering and other crimes of dishonesty. Consequences of corruption The question that arises is: How do corrupt governments sustain themselves when corruption should logically be a catalyst for political instability? The answer to this is quite difficult as the corrupt protect those who are involved – the so-called elites or untouchables in politics, business, the CJS and even in civil society. This protection takes many forms such as funding, gifts, contracts and involvement in government initiatives for monetary gain. Regardless of this artificial sustenance and protection, Mbaku (2007:101) insists that society at large experiences political and economic consequences because of this political manoeuvring, namely: A key aspect of openness and transparency is that the public should know more about the way national, provincial and local government departments operate, how well they utilise the resources they consume, and who is in charge. It is anticipated that the public will take advantage of this principle and make suggestions for improvement of service delivery mechanisms, and to even make government employees accountable and responsible by raising queries with them. ◊ ◊ 7. Redress ◊ ◊ This principle emphasises a need to identify quickly and accurately when services are falling below the promised standard and to have procedures in place to remedy the situation. This should be done at the individual transactional level with the public, as well as at the organisational level, in relation to the entire service delivery programme. CHAPTER 11 Crimes of a political nature 431 Source: DPSA, 2010 ◊ a suffocated civil society an economically unjustifiable public wage bill, designed to appease a politically important minority of civil servants profound inequalities in the distribution of income and wealth, lowered living standards especially for vulnerable groups the marginalisation of the State in global affairs high level of external debt and degradation of the natural environment. The Global Corruption Barometer (GCB) – Africa (2019), published by Transparency International in partnership with Afrobarometer, reminds us that “when money that should support critical services, such as health care and education, flows out of countries due to corruption, ordinary citizens 432