Publications
Partners
The proposal is enormously controversial and seemingly being shot down by the public and correctly so, but often when such radical ideas are given time to marinate, they become more palatable, writes Mandy Wiener
"What?!" snapped National Director of Public Prosecutions Shamila Batohi in response to a question about a proposed corruption amnesty, while on the stage at the Daily Maverick’s Gathering on Friday.
Interviewer Rebecca Davis asked the head of the NPA for her view on an idea that had been put on the table at the conference earlier in the day by a group of lawyers.
The four - Robert Appelbaum, Ryan Hopkins, Adv Gavin Rome SC and Adv Sechaba Mohapi, have written a paper outlining their proposal which you can read in full here.
Batohi appeared repulsed by the idea, aghast that it could even be proposed.
That’s not entirely surprising as the floating of such an enormously controversial concept is almost last gasp.
It is a manifestation of the mounting frustration within South Africa at the lack of visible and tangible justice for those responsible for looting the state’s coffers during the state capture project.
It is an indication that many are losing faith in the restoration of the National Prosecuting Authority and the feeling is that the task is simply too vast and overwhelming for her and her prosecutors to cope with.
To her credit, Batohi absolutely acknowledged this sentiment during her interview.
She is well aware that time is running out and that expectations are running high.
But she was at pains to give the assurance that a lot of work is being done behind the scenes and they have the looters in their sights.
Batohi's response to the mooted corruption amnesty idea is likely to be the reaction from many South Africans.
The idea is radical.
But it hasn’t come out of nowhere like a bolt from the blue.
I have increasingly been hearing the idea suggested to me at public or corporate events where I’ve spoken about the criminal justice system and the "fight back" campaign against Ramaphosa’s New Dawn.
There is a desperate frustration about the lack of action.
Drawing on the example of the corruption amnesty adopted in Hong Kong in the 1970s, the authors have emphasised the need for innovative measures to be used if the legacy and prevalence of state corruption is to be overcome.
"We contend that the time has come for South Africans to accept that, although, in an ideal society, all those involved in corrupt activities and the looting of the state coffers ought to be tried, convicted and incarcerated for their actions, in the current state of affairs, it simply is not possible to bring all individuals involved in corruption to justice.
"However, if South Africa embarks on an amnesty process that permits government officials, and the general population, to start afresh, free from the web of corruption that is the legacy of State Capture, the country could commit its focus towards reinvigorating the South African economy, for the benefit of society as a whole."
They argue that when corruption is so systemic in nature as it is in South Africa, it makes it ubiquitous and expected, part of our social fabric.
"Where corruption is systemic, it is unlikely that institutions charged with prosecuting corrupt activities would have the capacity to investigate and prosecute the sheer number of corrupt acts and corrupt individuals that exist.
"What is needed, therefore, is a means to eradicate the seemingly impenetrable resistance and inertia that conventional anti-corruption measures face, as well as to decrease the overwhelming number of corrupt individuals and corrupt acts. Ultimately, what is required is a means by which to establish a change in social and political culture."
The arguments against a corruption amnesty are strong and vast.
Who would qualify for it? Where do you draw the line? What penalties are imposed? Do the applicants pay back all the money they stole or just a penalty? Would the record be public or is it kept private?
One of the most concerning implications would be a perpetuation of the impression that the wealthy and powerful in this country benefit from a different type of justice to the masses.
Why not an amnesty for petty theft if you’re going to be doing it for grand scale looting?
The authors insist that they are not suggesting a "get out of jail free card".
"A fixed prerequisite in the process would require that applications for amnesty be conditional on full disclosure of the relevant corrupt activities and the parties involved. Consequently, those who admit to corruption, but are later revealed not to have made (full) disclosure, would either not be granted amnesty or have their applications revoked," they write.?
But it sure as hell looks like what we would be offering those responsible for gorging themselves at the expense of taxpayers, is a way out of accountability.
It’s a back door option for those facing the prospect of a jail term in orange overalls.
Personally, I definitely don’t believe we are there yet.
It's an easy way out. It's giving up.
Instead we need to buckle down, support the rebuilding of the criminal justice system and exercise more patience.
These criminal trials are going to run for many years to come still and that is how democracy works.
It is fundamentally important to the country’s psyche that we go through the cathartic process of seeing those responsible in the dock and on trial where evidence is led and testimony is heard.
It is the only way we are going to restore our faith in the rule of law.
Justice not only needs to be done, it needs to be seen to be done.
However I do think the proposal is brave and an important contribution to the conversation around accountability and the restoration of the justice system.
We do need to be innovative and out the box in our thinking.
So while the idea may be instinctively dismissed out of hand, often when given time to marinate in the public consciousness, such radical concepts may become more palatable to the public.
I imagine that is the premise the four authors are banking on.
They’re floating the idea out there, albeit prematurely, in the hope that when we run out of options, this will be the ultimate conclusion.
