The Zondo Commission is of vital importance to the democratic future of South Africa. Its investigation into state capture will, hopefully, be decisive in discovering the truth about corruption in the Zuma years and identifying key perpetrators for – again hopefully – suitable punishment.
To me, however, the Zondo Commission has, so far, had a fundamental flaw: its heavy reliance on testimony. Most of the Commission’s work so far has, essentially, consisted of hours and hours of live testimony, much of it conflicting and some of it confusing.
Don’t get me wrong – testimony from witnesses, whistle-blowers, and corrupt officials is an essential part of getting to the truth of the matter. The problem is that testimony alone is not good enough. As we’ve seen, there is no shortage of outright conflicting statements – person A accusing person B of corruption and person B reciprocally accusing person A of the same. It’s the ultimate he said/he said, and all that observers can do – in the absence of other evidence – is decide who they believe.
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In a court case, witness testimony is usually not enough for a conviction. This makes sense, because even the most honest and sincere witness is, after all, human. People make mistakes all the time. Just ask your friend to describe an event you both attended last year and see how different your testimony is from theirs.
Because witnesses are human and sometimes, liars, most courts look for additional evidence before they bring a verdict. Physical evidence is popular – the famous smoking gun – as is documentary evidence.
And to me, this is where Zondo is lacking. It has sweeping powers to search premises and request documents, which are – to my mind – being under-utilised. This is not entirely the Commission’s fault. If the state capture saga taught us anything, it’s that SA’s anti-money laundering (AML) rules are not getting the job done. Under global AML standards, a decent forensic auditor should be able to trace assets to their beneficial owner (that’s what Know Your Customer (KYC) rules are for – identifying who owns what). AML rules should also require special scrutiny of politically exposed persons, which means anyone who has a prominent public function. There should be paper trails for electronic money transfers and large cash withdrawals. There’s no reason why we shouldn’t – with a little elbow grease – be able to figure out where the money went.
Obviously, money-laundering scandals have shown that global banks are happy to help corrupt officials hide their illicit gains. But patient forensic work can overcome this, as can co-ordination between regulators across jurisdictions. The US has led the charge on this, with many high-profile money-laundering convictions and investigations. If looters are sending their stolen money overseas, we should be able to work with European and US regulators to find it. We should also take the opportunity to tighten up our own AML rules, including requiring public officials to file audited asset statements and offer their financial records up to public scrutiny.
For me, the relative lack of conclusive documentary evidence before the Commission is a serious weakness. I understand that following the money trail is expensive and complicated, but if that doesn’t happen, it’s unclear how we’ll ever see prosecutions. It’s simply not enough to have one person ratting out another – who do you believe when it’s one individual’s word against another?
I know that the Commission has collected a fair chunk of documentation, and even physical evidence like video clips and ledgers. But personally, I would like to see more attention paid to this side of the investigation. Major global scandals have shown that following the money trail can work. It can lead to the best of all outcomes: clawing back some of the stolen funds.
The work of the Zondo Commission is praise-worthy and the daily testimony is a delightful type of political theatre that shines a genuine light on the inner workings of the state in the Zuma years. It’s a significant achievement in transparency and accountability, especially for a young democracy like SA. But without serious work on the paper side of the investigation, there is a real risk that it remains an inconclusive, he said/he said, blame game.
