Paul Hoffman SC, Director Accountability Now
10 March 2020
Granting amnesty for corruption is a fundamentally flawed idea. It is neither accountable nor responsive to change the rules relating to corruption in a way that encourages impunity at a time when the moral and faith-based leadership of South Africa is crying out for orange overalls to be issued to the corrupt.
A corporate lawyer, clearly unaccustomed to addressing a gathering larger than one held in a boardroom, suggested that the corrupt in South Africa who “‘fess up” and pay back their loot be afforded official, legally sanctioned amnesty, at Daily Maverick’s The Gathering on 6 March 2020. He did so during a panel discussion with the auspicious title “Restoring Justice to South Africa”.
It must be heartening to the legions of civil society, business and faith-based organisations which have followed up on Archbishop Thabo Makgoba’s call that this be the “year of the orange overalls” for the corrupt that the suggested amnesty went down like a lead balloon with those at The Gathering.
Any law seeking to introduce the suggested amnesty would be vulnerable to impeachment on the basis that it would offend against the provisions in the Bill of Rights which read:
“Everyone is equal before the law and has the right to equal protection and benefit of the law. Equality includes the full and equal enjoyment of all rights and freedoms.”
Those who have already gone down for their corrupt activities, the Schabir Shaiks, Tony Yengenis, John Blocks and Jackie Selebis, would have a legitimate gripe about a new amnesty law that offers options that were not available to them when they were prosecuted.
It is so that a law of general application may limit the right to equality before the law. This is constitutionally possible:
“…to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including –
(a) The nature of the right;
(b) The importance of the purpose of the limitation;
(c) The nature and extent of the limitation;
(d) The relation between the limitation and its purpose; and
(e) Less restrictive means to achieve the purpose.”
The TRC legislation passed constitutional muster because it was aimed at those whose political motives during the Struggle drove them to commit crimes. It is clearly “reasonable and justifiable” that when moral principles inform otherwise criminal acts, an amnesty is indicated. The corrupt have no moral principles. They rob the poor of their dignity by diverting public funds to their own nefarious activities usually involving fast cars, slow horses and loose living of the kind uncovered when Marianne Thamm conducted a wheelie-bin inspection in Camps Bay last year.
It is because corruption is a human rights issue in South Africa, and has been since the Constitutional Court so found in 2011, that the amnesty notion is fundamentally flawed. Our basic values demand accountability and responsiveness. It is neither accountable nor responsive to change the rules relating to corruption in a way that encourages impunity at a time when the moral and faith-based leadership of the country is crying out for orange overalls to be issued to the corrupt.
The Ahmed Kathrada Foundation has assembled a phalanx of organisations to promote 2020 as the year of the orange overalls. Equality and human dignity are promoted by holding the corrupt to account. Amnesty is not the type of response the Constitution contemplates.
Unfortunately, due to the capture (some kindly say partial) of the criminal justice administration in SA, an informal sort of amnesty is available to the corrupt in the guise of impunity against punishment for their corrupt activities. It is instructive to examine how this came about and to consider what is to be done about it.
Back in 2005 the then-new Scorpions, a legislatively created unit (with investigative and prosecutorial functions) within the National Prosecuting Authority, were in full cry against the corrupt. Their investigation of the relationship between Jacob Zuma and his financial adviser Schabir Shaik led to the conviction of Shaik and the dismissal of Zuma as deputy president of the country (but not of the ANC). After he was fired by Thabo Mbeki, Zuma faced a stark career choice – either he was going to face charges similar to those which saw Shaik go down, or he was going to find a way to stop the charges from being pressed against him.
The way forward taken by Zuma was to persuade the delegates at the ANC electoral conference who gathered in Polokwane in December 2007 to elect him president of the ANC and to pass an urgent resolution calling on government to dissolve the Scorpions and to transfer their investigative capacity into the SAPS. Zuma succeeded, adroitly playing the victim card to do so, and the Scorpions were, after a long battle waged in Parliament and in court, replaced by the Hawks. The Hawks now supposedly investigate “priority crimes” including corruption, and the NPA only prosecutes, having been legally stripped of its investigative capacity.
Zuma was also lucky that there had been a falling out between Mbeki and his national director of public prosecutions, Vusi Pikoli. The latter has the singular distinction of being suspended by President Mbeki and fired by President Kgalema Motlanthe for doing his job properly. He did so by charging Jackie Selebi in the Mbeki era and Zuma in the short term of Motlanthe. Pikoli’s acting successor was unable to hold the line in the face of huge political pressure and found – what turned out to be legally invalid – means of dropping the charges that stood in the way of a two-term Zuma presidency lasting from 2009 to 2017.
Zuma did not waste time once in office. He did not reward those who withdrew the charges, instead he appointed the mendacious Menzi Simelane as his new NDPP in place of Pikoli. Simelane blithely announced that he intended to impose the ANC’s vision (hegemonic control of the levers of power) on the NPA, a supposedly independent body which is enjoined in the Constitution to act “without fear, favour or prejudice”. When this happened, both Shamila Batohi and Hermione Cronje resigned from their high positions in the NPA, seeking greener pastures at the ICC in The Hague and in private practice as an advocate respectively. They were not the only staff to resign. Leonard McCarthy, head of the Scorpions, now lives and works in the US, Glynnis Breytenbach is the shadow minister of justice, Anton du Plessis (who treasures his “People’s Advocate” cap) works for the ISS and so on.
Zuma’s interventions and “successes” have had the effect of hollowing out the NPA, crippling the capacity of the state to investigate grand corruption and creating a state of dysfunction in the criminal justice administration that enabled and facilitated his State Capture project.
Because of these developments, the seriously corrupt have enjoyed complete impunity in SA for many years and still do so. This impunity is a soft form of amnesty in that corrupt activities go unpunished by default due to the lack of will, skill, resources and sufficient personnel with suitable equipment to do the work of investigating and prosecuting grand corruption which is strangling the life out of the country on an ongoing basis.
Prosecutors capable of successfully mounting complex corruption cases do not grow on trees. They take many years to train and prepare for the hard work involved. South Africa does not have many years available for this process. A way has to be found to get those who already have the necessary expertise back in the saddle. They are not going to join the NPA. Listen to the public pronouncements of the leadership of the NPA and look at its reports as any potential employee would do. It is an organisation in crisis. Underfunded, riddled with “saboteurs” (Cronje’s term) who are there to ensure that the dysfunction that marks efforts to hold the corrupt to account continues, the NPA is not an attractive workplace.
A feasible “work-around” solution is possible. It requires the joint political will of those in Parliament to fashion a constitutional amendment and enabling legislation both cooperatively and quickly. Drafts exist. The time this will take is considerably less than what is needed to “fix” the NPA. Batoyi concedes frankly that giving the investigative work in respect of serious corruption to the SAPS (the Hawks unit) has not been a success. However, this was done by law, and the law needs to change.
The investigative directorate of the NPA is vulnerable to constitutional challenge because its creation flouts the will of Parliament. The Hawks can continue to work on other priority crimes, but the corruption that threatens the future of the country must be investigated AND prosecuted by the new organisation, an Integrity Commission under Chapter Nine of the Constitution. This body should not be confused with commissions of inquiry. It will be a standing commission like the Human Rights Commission and Electoral Commission with constitutionally conferred powers to investigate and prosecute corruption “without fear, favour or prejudice”.
Being a new body, without the baggage of the Zuma years and free of saboteurs, it will be able to address the recovery of loot and the issuing of orange overalls years sooner than the NPA will, on its own showing, ever be able to do so.
A lean, mean and specialised entity, dedicated to fighting the corrupt with highly trained staff recruited from the NPA, the private sector, the SIU, SARS and the Hawks and vetted thoroughly, will be able to enjoy the security of tenure that the Scorpions did not have. Closing down the Scorpions was the work of the simple majority which the ANC commanded in 2009; to shut down the Integrity Commission would require a two-thirds majority. The Scorpions would still be with us if their legislative design had been the same as that envisaged for the Integrity Commission or Eagles, if a nickname is needed.
SA does not have the time to wait for the NPA to self-correct and recover from its capture, whether partial or complete. The process needed will take too long. Starting from scratch with a unit that actually complies with the legal criteria laid down by the Constitutional Court in the second Glenister case in 2011 is the sanest, quickest and safest way to get to grips with the corruption problem that is strangling SA.
Joblessness has been described as the “monster issue” facing SA. The creation of sufficient jobs to save constitutional democracy ought to be the top priority of government. To create jobs, fresh investment is needed. No fresh investment will flow unless investors trust that their funds are safe from corrupt predators and unless an atmosphere of confidence in the future of the country can be built with tangible action, not vague promises. One of the first building blocks to encourage new investment is the issuing of orange overalls to the corrupt. The creation of the Integrity Commission is the best first step. It is a step that needs to be taken urgently.
The draft legislation needed is available on the “Integrity Commission” page of www.accountabilitynow.org.za. Parliamentarians and their advisors should busy themselves polishing and preparing it.