As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Statement by Dr Frene Ginwala: January 21st 2011
In August 2008, the 3rd National Anti Corruption Summit affirmed “the fundamental significance of a National Integrity System in the fight against corruption in South Africa”, and “that our Constitutional values and institutional arrangement should be the basis of the SA National Integrity System”. The Summit further called for the values of the National Integrity system to permeate the structures, practices and principles of the state, business and civil society”. Over 30 resolutions spelt out a detailed programme.
A year later the National Anti-corruption Forum that had convened the Summit confessed it was unable to produce an annual report. The Forum agreed that it would be revitalised at a workshop in early 2010. As far as I am aware, the promised workshop has not been held, nor am I aware whether the Forum which brought together civil society, labour, business and government still exists, or what has replaced it. Nor have I been able to establish whether we now have a South African National Integrity System.
Recently, the Minister for Public Service and Administration, the Hon. Mr Baloyi, launched the Special Anti-Corruption Unit at a consultative forum. Included in the Unit’s mission is “to provide a co-ordinated anti-corruption enforcement framework to support the national integrity system……”
There are already a plethora of official units and agencies with responsibility to address one or other aspect of corruption. Will one more make a significant difference? Much of debate and consideration has been on the mechanisms and institutions that could constitute a National Integrity System. What we have failed to address are the values upon which the integrity system should be built.
In our transition to democracy, we tried to address part of the legacy of apartheid: a racist culture and attitudes, and the challenge of building a united nation out of peoples who had been divided for centuries, and between oppressors and those who had been dispossessed and deprived of their rights. At the same time we were sensitive to the need for reconciliation to counter the potential danger of a violent reaction to the inequities of the past. The TRC was established with the objective of revealing the truth and assist in alleviating some of the pain, and encouraging reconciliation.
There are still debates about whether we were right to prioritise justice to the nation, over that to individual victims, and whether there has been adequate recompense. However, we have managed to avoid the bitterness and hostility that has resulted in the retributive violence and mass killings that has occurred elsewhere.
Regrettably, we did not take steps to deal with the damage inflicted on the values, morality and integrity of the oppressed majority as well as the rulers.
The link between corruption democracy and human rights is an interaction, the results of which varies and takes particular form in different societies. The legacy of apartheid is that of a society and institutions that were corrupt in their entirety: in the political and economic system, in the social organisation and above all in the values and culture that was engendered and promoted.
So much of our past encouraged violence and corruption. We were a society that was organised to provide everything for a racial minority regardless of the consequences, and impact on others. The country was managed by a society of brothers who furthered their objectives through strategies devised in secret. To achieve their objectives they placed their brother members in positions of influence and power: in the civil service and business, in politics, in state institutions and parastatals, in the army, the police and the intelligence services.
Inside the country human rights were violated with impunity. Aggression was committed against our neighbours, and wars and civil strife fermented. The laws of many countries were violated by breaking sanctions, and in the process enormous so called ‘commissions” were paid to leaders or officials, to obtain sanctioned goods, especially oil, arms and technology; but also in the trade of tools of crime: certificates of origin, end-user certificates, ship manifests and customs declarations were falsified and public officials and others were corrupted.
Apartheid was a criminal system and was maintained by criminal means, with scant regard for public or private morality, or respect for human life. The activities of agents of the state were unconstrained, institutions lost their legitimacy, and growing numbers of citizens abandoned previously accepted norms of behaviour as they began to condone, rationalise and legitimise injustice and oppression. The defence of apartheid knew no bounds and both legal an illegal methods were acceptable.
The defence of apartheid was also personally profitable for some. Defence Force Generals were prominent in the illegal trade in ivory, rhino horn and weapons in Angola an Namibia. Eugene de Kock, the self proclaimed assassin of apartheid, eventually faced 121 charges in our democratic courts. These included eight counts of murder, insurance fraud, car theft, theft from the state of the proceeds of selling rhino horn, dealing in false dollar notes and various East European weapons
The perverse morality of the time was epitomised by the legislation that bore the title: “The Immorality Act”. I wonder did any section of apartheid government or anyone in the Parliament that enacted that law, even realise the implications of that title?
Civil society prepared a well researched report titled “Grand Corruption under apartheid” which they submitted to the National Anti Corruption Forum. Though this was in the 11th year of democracy the government did not feel able to prosecute anyone. Yet the abuse of power was already becoming more prevalent. ANC Secretary General, Kgalema Motlanthe was reported as commenting on corruption. He said “ This rot is across the board. . . Almost every project is conceived because it offers opportunities for certain people to make money. A great deal of the ANC’s problems are occasioned by this.”
Chairperson, I have dwelt on our unpleasant and painful past at some length, in order to remind us of how naïve we were not to realise that we needed to undertake a project to inculcate new values in our society. It was not enough to include these values in our Constitution, they need to be promoted throughout society.
The Anti-Corruption Summit to which I referred at the beginning of my talk, included among its resolutions the need to:
“Affirm the fundamental significance of a National Integrity System in the fight against corruption. and
“Respect our Constitutional values and institutional arrangements as the basis of the South African National Integrity System.”
All too often integrity and accountably are confused. They are two sides of the same coin, but each one is distinct. Integrity denotes a set of personal values, belief and morals that permeate one’s being. In an organisation we speak of an organisational or institutional culture. This constitutes a higher code of personal or inherent probity that goes beyond legal prescripts. This is what we need to inculcate in the SA population, through education, by example and by leadership.
Accountability is rules based, and flows from the responsibility that one is charged with or a responsibility that one assumes. It requires reporting, explanations of actions, disclosure and the assumption of responsibility.
Integrity is a universal concept that is valued by all cultures, and, in all societies integrity is – and probably always has been – under threat from a variety of sources. Ethical behaviour, though desired, respected and valued, cannot be assumed. Therefore measures and institutions to safeguard integrity and promote ethics are necessary. The lack of them, or ineffective functioning opens the way for all manner of unethical behaviour including corruption.
I do not believe that there is any society that does not have integrity as a core value. Cultural norms are obviously different, and there are differences in how integrity is defined or manifested, but the concept of integrity appears to be fundamental in all cultures. This is underlined by the fact that all societies have some form of sanction against behaviour that runs contrary to the common good.
During the liberation struggle we were able to design a value system for post apartheid South Africa. This was based on an understanding and critique of the practices and worst excesses under apartheid.
Many of these values have been incorporated into our constitution and in the foundations of our institutions of governance. We were able to observe that corruption not only brought commercial gain, but also served to undermine and corrupt the political process.
The lesson for us is obvious. The concept of a National Integrity System is fundamental to the development of an anti-corruption discourse. It comprises the building blocks necessary for the long term struggle against corruption and other forms of unethical and anti-social behaviour. Its core elements are constituted by a society’s value system
These include personal integrity and honesty, accountability, transparency, equity, efficiency, developmentalism, and fundamental rights and freedoms including freedom of speech, access to information, democracy and participation.
These values need to permeate the institutions of state, the corporate sector, the professions, and civil society. Specific measures or actions relating to anti-corruption will need to be identified within particular institutions. The National Integrity System therefore provides the institutional and philosophical basis for both enforcement and preventive action against corruption.
Above all we need strong and determined leadership that will lead by example. The example set at the top levels of the political power structure is crucial. We need to practice what we preach. One cannot expect integrity from others unless leaders conform to the highest ethical standards.
Culture is not static. It is dynamic. It has to evolve to meet new challenges and adapt to new circumstances. We have seen that in many societies cultural values have been eroded by greed and corruption. Once entrenched, corruption creates an ethical vacuum. The challenge for us is to make integrity part of our culture again, and to instil into our society, a sense that integrity is valued once more.
Chairperson, this is the challenge that this organisation must take up and meet.BACK TO TOP