State Capture: A “How to” Guide

The Democratic Alliance, South African’s principle opposition party, has brought suit seeking a declaration a policy of the African National Congress, the nation’s ruling party, is “inconsistent with the Constitution. . . and the Public Service Act” and hence invalid.

The policy at issue is the ANC’s Cadre Deployment and Development Policy. It sets out how the party selects who will serve in the national, regional, and local levels of South Africa’s government, either in an elected position or as a member of the career service.  The DA alleges that the effect of the policy is to give the ANC “control over the functioning of critical institutions of government. . . blurr[ing] the lines between the ANC and the State and facili[tating] state capture. . . . .” The case’s founding affidavit, equivalent to a complaint in common law jurisdictions, asserts the policy has “inhibited the ability of the State to function effectively in order to promote the rights in the Bill of Rights [and that it] has eroded South Africa’s democratic founding. . . . “

Evidence developed by the Judicial Commission of Inquiry into Allegations of State Capture, established after ANC leader Jacob Zuma was forced to resign as South African president, is cited throughout the affidavit to show how he and ANC cronies implemented the policy and what its effect has been.* The policy reads as a “how to” manual for capturing the state in a weak or developing democracy. One can only hope this will be how the South Africa’s judges read it as well.

A copy of the policy is here for readers’ information. And more importantly, for those working on prevent state capture elsewhere, to help them thwart similar efforts.

*Earlier today South African Chief Justice Raymond Mnyamezeli Mlungisi “Ray” Zondo, the commission chair, spoke to the failure of the ANC to come to grips with Zuma’s behavior and expressed the fear the state could be re-captured were another Zuma-like figure elected president. Click here to listen to his to warning to South Africans of all parties. Thanks to a South African reader for alerting me to his extraordinary and powerful remarks.

1 thought on “State Capture: A “How to” Guide

  1. Great to see this post.

    Having followed this story it has been interesting to observe President Ramaphosa’s recent response to the recommendations made by the Judicial Commission of Inquiry – particularly his references to Cabinet’s recent adoption of The National Framework towards the Professionalisation of the Public Sector. According to the President’s response, the Framework is an important instrument to address the strategic positioning of individuals in positions of power through the abuse of public sector appointments and dismissals – which facilitated state capture and corruption. The Framework’s objectives include advancing proposals which ensure merit-based recruitment in public sector administration. According to media reports, the Framework essentially adopts the DA’s policy to abolish the ANC’s Cadre Deployment Policy.

    What leaves in the balance is: 1. The DA’s pending law suits against the ANC and whether the President will heed to the DA’s imminent request for him to withdraw his opposition in light of the adoption of the Framework – which constitutes his articulated response to the Judicial Commission of Inquiry. If he doesn’t, it can be reasonably be expected that the court would order an adverse cost order against the President/ANC. 2. How effective the implementation of the policy will be, what checks and balances will be in place (including in public sector legislation yet to be amended to conform with the Framework) to ensure that public sector recruitment is at arm’s length and is merit based.

    In the interim, the Framework is a positive step in South Africa’s continued anticorruption efforts.

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