A delegation from the Ghanaian Committee on Constitutional, Legal and Parliamentary Affairs met with the Portfolio Committee on Justice and Correctional Services to discuss issues of common interest, the highlights of which were the countries’ efforts to combat corruption, and South Africa’s approach to dealing with land restitution. The delegation said it was committed to combating corruption in Ghana, and had requested the visit in the hope of learning from the South African Committee about the most effective approaches to prosecuting corruption.
The Committee responded by asserting that South Africa had very effective anti-corruption units. The Scorpions had been very effective, and had been replaced by the Hawks. Prosecution-focused investigations were key, as police investigators had to work closely with the prosecutors. To prevent problems of police not presenting the necessary documents, there needed to be close involvement with prosecutors, and the Hawks units were useful in this regard. The most challenging issue in South African justice currently was the land question. While political liberation had been achieved in South Africa, economic liberation had not been achieved yet. The concept of restitution required action, and an effective process in that regard had to be found by the Committee. South Africa would find a resolution to this pressing issue, just as it had found common ground in its peaceful negotiations in 1994.
Regarding corruption, South Africa had the so-called “Chapter 9” institutions, which were enshrined in the constitution. The crucial one which dealt with corruption was the Office of the Auditor General (AG). The office had auditors who audited anything suspicious in the government entities at all levels -- local, provincial and national. The Office of the Public Protector was also part of the Chapter 9 institutions. It had been extremely strong until last year. In the case of former President Jacob Zuma, for example, the office had been very effective. No person, even the President, could interfere with the processes of these institutions. They were accessible to every citizen of the country.
South Africa had focused very narrowly on corruption within the sphere of the state, which was obviously very important. Of late, however, corruption within the private sector was also denting the country’s economy. It was therefore clear that all forms of corruption ought to be dealt with. It was also important to have a strong impartiality factor built into the judiciary. It was critical to ensure that the judiciary was not financially dependent on the government of the day so that it could perform its functions without political manipulation.
The Ghanaian delegation responded that it felt as though African leaders were being forced to focus entirely on the problems of corruption to the extent that they neglected several other matters that could advance African societies. Ghana had given its attention to the creation of anti-corruption institutions, but did not pay as much attention to making sure that state policies were effective and implemented. Ghana did not lack institutions or provisions to fight corruption, but what remained a challenge -- and a question to raise -- was how to really provide for the independence of the prosecuting units. This was the key for determining real independence, because these units still had to rely on the Treasury, which had the discretion over the national budget. This discretion may limit how effective special prosecuting units were.
Members of both committees commented that they had a lot to learn from each other, and expressed a willingness to establish a strong relationship between the two countries.
Chairperson’s welcome and comments
The Chairperson welcomed the delegation from Ghana and, after introducing the Members of the Committee, invited Mr Alban Bagbin, Second Deputy Speaker of the Ghanaian Parliament, to introduce his delegation.
The Chairperson said that the meeting was long over-due, because Ghana and South Africa had a strong and historical sibling relationship. It had therefore been negligent of South Africa not to preserve that relationship -- as Ghana was the older political sibling -- by not asking first for the Ghanaian delegation to visit South Africa, instead of the Ghanaians having to request the visit. The struggle waged for the liberation of this country and the continent had occurred through the inspiration and contribution of the Ghanaian leadership, particularly the leadership of the former Ghanaian president, Kwame Nkrumah. The former president remained the source from which the idea of African unity was drawn. The Committee hardly had time for oversight visits, but it would make sure that before the term ended it had to go to Ghana, and meet the Ghanaians on the ground. He hoped this meeting was symbolic of the start of future relations between the two committees. A relationship should be built and passed on generationally.
Mr Bagbin extended his gratitude that the Justice Portfolio Committee was hosting them, as he was aware that this was a busy time. Next year, the country was having elections, and being a “rainbow nation”, it had a lot of political parties, so Ghana appreciated the time the Committee had granted it.
He introduced his delegation. They were Mr Joseph Cudjoe (New Patriotic Party), Deputy Minister ofEnergy; Mr Kojo Oppong Nkrumah, Deputy Minister of Information (New Patriotic party); Mr Francis Manu-Adabor, Chairperson, Committee of Land and Forestry (New Patriotic Party); Mr Mahama Shaibu (National Democratic Congress); and Ms Akua Owusu Agyekum, Secretary of the Committee.
He warmly welcomed the compliments about Ghana and the former Ghanaian president. These were indeed historical facts. However, Ghana had a lot to learn from South Africa too -- for example, the great leader, Nelson Mandela.
The Chairperson referred to the regeneration of Africa. During the World War 2, Kwame Nkrumah had advocated self-determination and independence for not only Ghana, but the whole African continent, saying Ghana would not be free unless Africa was free. The continent owed ideas such as pan-Africanism to Ghana’s former president, as these were at the core of African values. He urged intellectuals to be part of the African liberation struggle. It was Nkrumah’s ideas that had influenced even iconic leaders such as Mandela. African jurisdiction was needed .
The Justice Committee was under pressure from the young people of South Africa who were eager for the radical transformation of the country’s institutions. After all, the struggle was to make sure that the African people had the greatest possible access to justice. The young people of South Africa wanted the decolonisation of systems in the country.
Lastly, he asked why the Ghanaian delegation had decided to request South Africa for a study session, especially in light of South Africa’s reputation to behave like Europe and to think it was a part of Europe, rather than a part of Africa.
Ghana delegation’s focus: Countering corruption
Mr A Bagbin once again extended his appreciation on behalf of his colleagues for the Committee’s rich knowledge of the history of not only the continent, but of Ghana as well.
He said that South Africa’s democracy was not that young, compared to Ghana. Even though Ghana had got independence in 1957, its democracy was only 27 years old because of internal political conflict. Ghana had got its first Parliament of the Fourth Republic in January 1993, and South Africa in 1994.
He emphasized the significance of young Africans and how as political leaders they had a responsibility to assist young people to know themselves as the world evolved in order to realise their potential. It was important for them to have a direction, so it was important to pass history on to them.The world was evolutionary. Revolutions were usually not sustainable, but were necessary at times to break the modes of systems of some structures.
The culture of corruption in Africa was not of Africa, but had now become an African thing. It had adopted the culture of corruption. Perhaps they could learn a lot from South Africa on this issue. As a committee, they had decided to visit the South African Portfolio Committee on Justice because they were essentially concerned with the high level of corruption in Ghana
The Ghanaian committee was large, and had many roles. It had been responsible for creating legislation and Acts of parliament, to form a prosecuting office to assist the country in fighting corruption. Ghana could learn a lot from South Africa in this matter. The name “Justice and Correctional Services” was very appropriate to what the Ghanaian committee was trying to do. The Hawks and the Scorpions were reflective of South Africa’s experience and competency in the matter of corruption, so they were here to learn from this.
They also had the equivalent of traditional leaders in Ghana, but they were not allowed by the constitution to be Members of Parliament, or even to participate actively in partisan matters. The constitution of Ghana considered them as impartial, and parliament was not impartial -- it was partisan.Traditional leaders should not be tainted with partisanship, but should be the objective and impartial arbiters of Ghanaian traditional matters. Systems and cultures differed in African countries, so he was in no way dismissing the South African way.
He requested South African Committee to describe its competence in the area of corruption, and whether it had much experience in fighting corruption. Of particular interest was the role that was played by Parliament in leading the country’s fight against corruption. How did the country prosecute corruption?
Mr S Swart (ACDP) said he had been in Parliament for 19 years and had always served on this committee. As a Christian and a Member, he commended the ANC for the negotiated settlement leading to the South African constitution.
South Africa had very effective anti-corruption units. The Scorpions had been very effective, and were replaced by the Hawks. Prosecution-focused investigations were key, as police investigators had to work closely with the prosecutors. To prevent problems of police not presenting the necessary documents, there needed to be close involvement with prosecutors, and the Hawks units were useful in this regard.
From Parliament’s perspective, there had been an exercise of oversight where there had been large-scale of corruption, such as at the South African Broadcasting Corporation (SABC). There had also been the Eskom inquiry, which had been a multi-party inquiry to expose corruption. There was now going to be a judiciary inquiry into Eskom, and Parliament had set the tone for all of this.
There was, however, a lot the Committee could learn from other countries. The most challenging issue in South African justice currently was the land question. While political liberation had been achieved in South Africa, economic liberation had not been achieved yet. The concept of restitution required action, and an effective process in that regard had to be found by the Committee. South Africa would find a resolution to this pressing issue, just as it had found common ground in its peaceful negotiations in 1994.
The Chairperson requested Ms M Mothapo (ANC) to address the question of land, the position of traditional leadership and queen mothers raised by Mr Bagbin. He added that there was currently a constitutional review committee to amend the Constitution on the expropriation of land without compensation. She would better articulate the Committee’s stance on this topic.
Ms Mothapo addressed where the South African constitution stood on the position of traditional leaders. Chapter 12 of the country’s constitution was dedicated to the recognition and to the legislative regulation of traditional leadership. Additionally, it had a Bill of Rights which stated clearly the right to freedom of association and political rights. Then traditional leaders, as citizens of South Africa, ought to have access to these rights.
She commented that the founding members of South Africa’s oldest liberation party, the ANC, had been traditional leaders, such as Albert Sisulu, Albert Luthuli and others. This was important to take into consideration
On the issue of land, she said there was a constitutional review committee, of which the majority of the Members of the Portfolio Committee on Justice were part. The constitutional review committee was aimed at amending section 25 of the constitution, known as property clause, in order to make room for expropriation of land without compensation. This committee would be conducting public hearings in all the South African provinces from 27 June to 4 August.
Land was an emotive and critical issue in South Africa. The historical context of this could be traced back to 1912, and the Native Land Act that followed, which allocated 87% of the land to whites and only 13%, to blacks. Such factors would be taken into consideration by the review committee. South Africans were eager to see that justice was done, but that it should unfold in a way that did not compromise food security, peace and stability.
Regarding traditional authority, she was aware that Ghana had abolished traditional courts after independence. In South Africa, this was not the case -- traditional courts were also recognised. There were also houses of traditional leadership in all provinces, except the Western Cape.
The Justice Portfolio Committee aimed to abolish all apartheid legislation that was still present in the operation processes of traditional leadership. The Black Authorities Act, for example, had been done away with.
There was also the Traditional Council, which played a pivotal role in the governance of traditional institutions. The representation of women in this Council was critical, as part of the commitment to allowing women to have political roles.
The Chairperson addressed the statement made by Ms Mothapo about land without expropriation being achieved without affecting food production. That was where young South Africans and the young political parties such as the Economic Freedom Front (EFF) differed, arguing that this was a ‘sell-out” position.
Mr T Muluadzi (EFF) said that the issue of land was a thorn in the flesh for the continent as whole. People died because of the land. The EFF was very concerned with the slow pace of land distribution in the country. 24 years into democracy, the majority of South Africans -- black people -- owned only 13% of the land. If one went into KwaZulu-Natal, one would observe that the people there did not even have sufficient land to bury people who have passed on. Bodies were buried on top of each other, and this was very unfair.
The EFF was therefore glad that the ANC had agreed with them that Section 25 of the constitution needed to be amended. The motion passed in Parliament on Section 25 had stipulated that there must be a willing buyer and willing seller. However, even if the buyer was willing, if the seller was not willing, the land could not move from one owner to another.
Regarding corruption, he said South Africa had the so-called “Chapter 9” institutions, which were enshrined in the constitution. The crucial one which dealt with corruption was the Office of the Auditor General (AG). The office had auditors who audited anything suspicious in the government entities at all levels -- local, provincial and national. The office had a mandate to submit a report to this Committee annually.
The Office of the Public Protector was also part of the Chapter 9 institutions. It had been extremely strong until last year. In the case of former President Jacob Zuma, for example, the office had been very effective. The institution now had different leadership, and was not necessarily as satisfying as the last.
No person, even the President, could interfere with the processes of these institutions. They were accessible to every citizen of the country.
Mr W Horn (DA) advised that a Parliament which was grappling with issues of corruption needed to have clarity about whether it had to deal with all forms of corruption. South Africa had focused very narrowly on corruption within the sphere of the state, which was obviously very important. Of late, however, corruption within the private sector was also denting the country’s economy. It was therefore clear that all forms of corruption ought to be dealt with.
Focusing on the state form of corruption, he said it was important to have a strong impartiality factor built into the judiciary. It was critical to ensure that the judiciary was not financially dependent on the government of the day so that it could perform its functions without political manipulation.
Mr L Mpulwana (ANC) said he would rather assist in conceptualising the concept of corruption, as opposed to giving a solution. He located the start of corruption historically to European colonisation. It had been corruptive for African countries to be invaded, and the grabbing of African raw materials for export to Europe had been corruption. Any resistance had been met with assassination. This culture was now embedded in South Africa as well.
The legacy continued, as investigations into corruption in the country spoke to a small group of people instead of the people who had a strong arm in corrupting the government. The Scorpions, with the help of the media, for example, targeted only African people and never the big companies. He was not sure what impact the Hawks would have, because money talks and a person keeps quiet -- exposing corruption could mean risking losing one’s life. All of this was not saying nothing should be done about corruption, but a deeper understanding of what it was, was very important.
On the question of land, if it means those in power were going to suffer, one dared not talk about it – one did so at one’s own risk. As long as African countries had raw materials, as long as Ghana had what others needed, they had to tread carefully.
The Chairperson agreed that Africans had indeed adopted the culture of corruption. It was important to not keep on blaming the colonisers for corruption, and to work harder to fight it.
Mr Mulaudzi said the state capture had also been a good case study to demonstrate the effectiveness of the “Chapter 9” institutions. The Commission of Inquiry into the state capture, with the help of the Public Protector, had been highly effective. It had exposed the billions of rands that were leaving the country.
Mr Swart added that during the process of exposing the state capture, the lives of some Members of Parliaments had been threatened, but Parliament had stood firm. What had started this inquiry had been the allegations that put forward by the Public Protector. It was important to have such institutions.
When constructing a prosecuting authority, security of tenure was an important factor. Parliament should ideally play an important role in their employment and provide checks and balances to avoid manipulation by certain people with vested interests.
The role of the private sector in corruption should not be underestimated, as the private sector was often a beneficiary. What the Committee had exposed in South Africa during the issue of state capture had been multinational firms involved, such as KPMG, which was one of the biggest auditing firms in the world.
Effective constitutional provisions like Chapter 9 institutions did make an impact and were advisable as a tool to prosecute and fight corruption, and protecting them from political intervention was the key aspect.
Ghanaian delegation’s response
Mr Bagbin said he was learning a lot, and asked his colleagues to comment or present further questions.
Mr Cudjoe said he was learning a lot about the challenges South Africa had gone through in relation with corruption, the history and reality of the African continent. The point of financial independence in relation tocorruption prosecution was particularly relevant in Ghana.
Mr Manu-Adabor commented on the vast difference in the dispensation of land between Ghana and South Africa. In Ghana, most lands were owned by traditional leaders and family heads. The committee was now considering passing a Land Bill, which would compensate those bodies who had no access to the ownership of land. This especially concerned the empowerment of women. By the end of the year the committee should be done with clause by clause deliberation of the bill, and it would go to the parliament plenary.
Mr Bagbin said that South Africa’s situation was different because the colonial master had taken the land and made the native population landless, and now there was a struggle to get back what was rightfully theirs.
Mr Shaibu asked South African Committee to share how they had dealt with corruption within the justice delivery system to ensure that corporate and political corruption was prosecuted? What was the country’s experience in dealing with juridical corruption?
Mr Horn responded that the Chief Justice was head of the Constitutional Court, and was also seen as the head of the judiciary at large. South Africa’s judiciary had taken the lead to develop models which assisted with self-discipline. For instance, judges were required to make a declaration of their interests on an annual basis. At face value, this initiative helped to ensure that judges were not acting in situations where there was a conflict of interest.
In the upper layer of judiciary, there had never been any case of a judge being accused of acting in a corrupt manner. South Africa also had Judicial Service Commission which served to regulate the conduct and discipline of judges in high courts. One of its frustrations was that it had been struggling to set up tribunals to deal with judges who had been accused of misconduct. It had literally taken years for the tribunals to be set up.
At the lower levels of the judiciary, there had been many instances of members of the magistracy being removed from office after facing an internal disciplinary hearing.
The Chairperson confirmed what Mr Horn had just said, that action had indeed been taken to discipline judges on cases of misconduct.
Mr Swart said that to remedy the issue of access to representation and to promote justice, every South African citizen had the right to be afforded a lawyer by the state. There were still challenges in managing corruption within the judicial institutions. For example, there was an issue of corruption within South Africa’s correctional facilities. There were prison wardens who smuggled in contraband items to the prisoners, and who helped in escapes.
South Africa had an effective unit within the country’s prosecuting authority, the Asset Forfeiture Unit, which was another important aspect when looking at corruption, When an organised crime syndicate was criminally charged, the judiciary could attach their assets civilly pending the outcome of the case. This assisted in freezing the assets of the accused and prevented them from leaving the country.
The financial intelligence sector placed an obligation on banks to oversee suspicious transactions of money. The country had good laws, it was just their implementation that could be challenging at times.
Mr Nkrumah joined the rest of his colleagues in commending the rich knowledge Members of the Portfolio Committee had on the history of Ghana and the African continent, which indicated the high level of intellectual depth being brought forth as African democracies developed.
He said he was no way underestimating or underrating the dangers of corruption, or the fact that it needed to be taken care of. However, he felt as though African leaders were being forced to focus entirely on the problems of corruption to the extent that they neglected several other matters that could advance African societies. Ghana had given its attention to the creation of anti-corruption institutions, but did not pay as much attention to making sure that state policies were effective and implemented -- and state policies were the true instruments that would advance the cause of the people.
Secondly, he said that Ghana did not lack institutions or provisions to fight corruption, but what remained a challenge -- and a question to raise -- was how to really provide for the independence of the prosecuting units. This was the key for determining real independence, because these units still had to rely on the Treasury, which had the discretion over the national budget. This discretion may limit how effective special prosecuting units were.
The Chairperson agreed that it was costly to prosecute, and these financial resources could be used for other incentives such as youth empowerment, as the youth was the future of the country. The state capture enquiry, for example, was going to take up to two years and there were going to be costs incurred in the process. Therefore, the points raised by Mr Nkrumah were relevant.
Mr G Skosana (ANC) said that there was indeed a need for alternative funding models, as raised by Mr Nkrumah, as opposed to dependence on the state. He also agreed that this was an important factor in the process of constructing independent judiciary structures. However, the Committee was satisfied with the impartiality and independence of South Africa’s judicial institutions. Their work was being done without any fear, favour or prejudice.
Mr Mpulwana emphasised the power of money in corrupting people. He added that the Committee was trying to transform the function of Correctional Services. The objective of imprisonment was not to throw people to into bins, but to rehabilitate and change them. He pointed out that ordinary people’s access to justice was determined by their economic position, and the lower one’s economic status, the lower the chances of accessing justice.
On the question of funding prosecuting units, it was unclear how could there any be any other source but the Treasury. What might be done was to create a bill that limited the discretion of the Treasury, so that money was made available with less dependence on the Treasury.
The Chairperson said that it was indeed necessary to have African solutions for African problems, as the African Union (AU) had stated. There was another commission which was part of the Chapter 9 institutions -- the Commission for the Promotion and Protection of Cultural, Religious and Linguistic Communities -- which was now grappling with the commercialisation of religion in the country.
Mr Swart said the matter of commercialisation of religion was being dealt with extensively. There had been public hearings on the issue and a separate committee had been created. There were laws that dealt with this area in Parliament. It was an issue that should be closely monitored all over Africa.
Mr Bagbin thanked the Members of the Portfolio Committee for their warm hospitality, and extended an invitation to visit Ghana. Corruption was not an African thing, because it existed all over the world.
The Chairperson suggested that both committees consider institutionalising co-operation between Ghana and South Africa.
The meeting was adjourned.
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