The subject of state capture entered our social consciousness and lexicon as recent as 2015. The construct has now found a life of its own as its usage is entrenched by a segment of our society that claims to defend the constitution and protect democracy. The latter not without question, since a counter argument can easily be made that the self appointed defenders and custodians of our democracy and constitution are not at all that honest or serious to make the principles of democracy stand.
We trace our basic frame of the construct to the report of the outgoing public protector who in her swansong in what some considers as a sequel to her Nkandla Report for some hashed a report. Not taking anything away from the former public protector, she produced a report with a set of remedial actions the detail of such can be interpreted in a variety of ways. In the aftermath of the Nkandla case we now know the boundaries and binding nature of the public protector’s remedial actions. We know today what we did not know until the Constitutional Court pronounced that they are binding and can only be reviewed in a court of law. The president has opted to take her report on review particularly for the process her remedial action dictates as a direct infringement on the constitutional right and mandate of the president on the establishment of judicial commissions.
We are told State capture is ‘a type of systemic political corruption in which private interests significantly influence a stated decision-making processes to their own advantage’. Meaning this attests a concerted, orchestrated and clandestine means of usurping the authority of the state and what it stands for with the aim of owning and thus directing it for economic gain.
In a democracy where political power and economic power lives in ever-contesting and conflating spaces of mutual self interest lobbying a more American practice of engaging law makers is accepted as normative and acceptable a means to influence legislators through access and persuasion to augment or push for a certain policy position that may benefit a specific audience. Therefore the influence of the State, by others making up various sectors of society in democracy is not challenging neither unconventional nor unacceptable.
We however are told State capture occurs when ‘the ruling elite and/or powerful businessmen manipulate policy formation and influence the emerging rules of the game (including laws and economic regulations) to their own advantage. The captured economy is trapped in a vicious circle in which the policy and institutional reforms necessary to improve governance are undermined by collusion between powerful firms and state officials who extract substantial private gains from the absence of clear rule of law.
Equally so state capture can further be refined by distinguishing between types of institutions subject to capture (Legislative, Executive, Judiciary, regulatory agencies, public works ministries) and the types of actors actively seeking to capture (large private firms, political leaders, high ranking officials, interest groups).
This mouthful attempt at a didactic summary of the true meaning of state capture is where we light our proverbial candle. The public protector’s report essentially made up of interviews with individuals that relayed their varied experiences. It also included interviews with the president among others. In the aftermath of the publicizing of the public protector’s report we have seen and heard individuals such as Former Deputy-Minister Jonas and former MP Vytjie Mentor and former Government spokesman Themba Maseko among a few share with us their accounts of the claim of state capture.
Subsequent to these and long after the released public protector’s report, the SAVE-SA campaign led by Anglo Gold Chairperson Sipho Pityana in his political speech at the funeral of the late Rev. Makhenkhesi Stofile raised the claims of state capture as the reason for the president to step down. Later on a segment of the religious world immanent in the SACC attempt making its case for the existence of state capture essentially harvested from the usage of an ecclesiastical practice of penance. We were exposed to a SACC clergy that concluded despite its inadequacy, necessary judicial infrastructure and lack of mandate make its case for the prevalence of state capture. The clergy equally had its political aim with this.
In that same week we now know a segment of academics made their case for the existence of state capture as an undeniable reality. Again no different to SAVE –SA, the SACC this group of academics equally strung together a litany of newspaper articles, opinion pieces and interpretations of what state capture means as their confirmed claim of the existence of state capture. The crossbreed of SACC clergy then approached parliament and academics to make their case for state capture.
State capture therefore in our discourse is hitherto heavily informed by the words of individuals whether these gave press conference statements, made confessions in the SACC led unburdening process of penance or shared with the ANC SG office which confirmed that some individuals including ministers have admitted they had meetings with Oakbay owners on various occasions.
What must not be missed in all of this is the fact that these conclusions and assumptions on the prevalence of state capture were essentially made by individuals in which their words are uncritically accepted by some as the final authority. It is very interesting that the previous claims levelled against Mcebisi Jonas for his role in corrupt activities that ran into millions in the ECDC (Eastern Cape Development Corporation), which he led and later the equal Mandela funeral monies debacle does not disqualify him as potentially fabricating his claims. It is very interesting that the turbulent and volatile emotional rhetorical claims of a Mentor are not considered questionable in substance but is categorically assumed as the truth.
We equally must not omit to admit the confirmed political campaign, which has one fundamental and ultimate aim, that being the removal of the president of SA. This campaign had many dimensions, with a presence from within and outside the ANC. This was aided by the release of what has come to be known as the #Guptaleaks. Besides the leaks making for salacious news-advantage clips that were carefully and timeously released day after day to impact if not embellish the claims for state capture along dotted lines, it from the start was compromised and questionable to stand legal muster.
Those who released the leaks from the start were never really interested to lay a charge with the explicit intend of bringing someone to justice. It was from the start a PR campaign that fulfilled its share of a campaign at unseating the sitting president.
It is right here that the case can be made that state capture in our usage becomes neither authentic nor genuine but a campaign aimed at an objective that failed for eight times in the legislature on August 8.
It is important to accept that the president is on record to have said he welcomes a judicial commission of enquiry on the subject of state capture. The African National Congress on its accord is on record to have accepted the claims as serious to the extent that it warrants a judicial enquiry. We may therefore accept that we will have a judicial enquiry. Equally parliament has begun to give effect to an opportunity to entertain the establishment of a committee to ascertain the claims.
State capture however is also now the emerging central theme of the Ramaphosa 2017 campaign for high office. Deputy President Ramaphosa has inadvertently made this the theme of his campaign meaning he hopes to harvest his election success from the bedrock of this claim. This furthermore exacerbates the rightful causal linkage of state capture embodied in a orchestrated political campaign at best.
We therefore must go back to hear what a captured state is. In order to appreciate state capture we must ask what the State in democracy means. What makes for the state?
In our constitutional democracy the state comprises three spheres. These three spheres evident in the executive, legislative and judiciary. To therefore make the case for captured state one will have to show the material evidence of state capture across each of the spheres that makes the State. It would at fundamental level evidence the judiciary as captured, the legislature as captured, and executive as captured.
It is fair to categorically state we will never going to hear the judiciary entertain this notion of it being captured. The judiciary will argue for the material evidence of its captured state as a segment of what makes for the state. notwithstanding the challenges of some court findings to make the case for a apartheid captured even racist judiciary one will need to go far beyond lost cases or challenging findings which is normal in a democratic society to make the case for a captured judiciary. If we therefore cannot make the case for the judiciary as captured can we truly attempt to make the case that the State is captured?
The legislature which makes up 400 of law makers as afforded by the constitution and as result of a democratic ballot in multi-party state diaphragm will challenge the notion of it being captured because the ideological and political differences and agendas at play in parliament and its NCOP will never be able to aid state capture. We must not confuse the accepted benefits of democracy namely a majority % as a means to build a case for state capture. In democracy each party contesting in an election hopes to be a majority to therefore let its agenda, programme, and ideology define that which leads as majority.
To therefore argue that state capture is prevalent in the context of the legislature is either to misunderstand the construct or to be disingenuous if not mischievous. We have now found two-thirds of what makes up the democratic State not possibly captured if the claim of state capture immanent in Gupta companies are made. If we cannot make the case that the legislative is captured can we really make the case of a captured state?
This brings us to the executive as the remaining and third sphere of the State. It is perhaps here that the claims find their birth cradle. The case is made that the executive immanent in the president shares a friendship with a naturalized South African black family of Indian origin. The case is made the presidency is captured, well this must than mean the deputy president as part of the executive must be equally captured for the friendships and relationships he may share with designated economically vested families and companies of the white monopoly farm. What is known, the president ages ago admitted to sharing friendships with the leaders of Oakbay.
Oakbay companies have equally benefitted from the SA fiscus if the Eskom, Transnet etc, contracts are factored in as a yardstick. The case is can we truly claim the state as evident in the executive is captured if the size of business Oakbay companies. Do we at some stage become sober to ask for the real not sentimental percentage stake that evidences this capture. We then must ask what % of the fiscus Oakbay owns?
The truth is the #guptaleaks as a powerful tool it was made out to be simply lacks the needed corroborating evidence that directly and categorically links the president as the head of the executive to any of it.
We have already established that in the case of the judiciary and legislature the case simply don’t stand. We now must concede that beyond meetings that members of the executives may have had, flights to Dubai etc, the accepted admittance that the presidents share a friendship with the Oakbay owners, in which one of his sons is a business partner, the case for a executive as a third aspect of the democratic State being captured remains contestable claim.
Therefore the case of state capture in the end may rightly end up in proverbial smoke not because someone extinguished the fire but perhaps since an orchestrated political agenda and campaign hitherto failed to prove the existence of it.
Until then let us have the judicial commission of enquiry, let us ascertain whether the Oakbay companies captured the State in all its manifested expressions of executive, legislature and judiciary. If we cannot prove such, let us be bold to admit this was nothing but a political campaign.
Clyde N. S. Ramalaine
On behalf of Inkululeleko Foundation