It’s a crowded field in which to compete. But the title winner for the worst idea to tackle the scourge of corruption and the sleaze of state capture is Thuli Madonsela.
Earlier this month, at a Nelson Mandela Bay leadership summit, the admired former public protector offered an extraordinary idea. A report of her remarks, which she retweeted, says: “A truth and reconciliation commission where those involved in the scourge, which has seen billions of rand siphoned from the fiscus, would confess their unscrupulous behaviour without fear of being prosecuted.”
This idea, bad in conception and absurd in its consequences, does not originate with her. It was first suggested by a very wealthy South African businessman some years back. I could understand his reasoning. Like many of his tribe he had a transactional approach to life. A problem, in this world view, must be resolved in the most pragmatic and expeditious manner; concepts like justice and reparation are nice-to-haves but irrelevant to fixing an immediate crisis. Give a blank slate to the thieves and we can start afresh.
But such latitude does not extend to Madonsela, who is a professor of law at the University of Stellenbosch. She not only teaches the stuff, but with her elevation as a dragon slayer of corruption through her staunch role in exposing Nkandla and the Gupta empire of rottenness, she is a heavyweight voice on the topic. Her throwaway remarks clearly were not thought through.
Start with the original TRC. It was designed as a bridge between the old securocrat era before democracy and the new legal order based on justice and consequence. It was a compromise between a victors’ justice and the need to obtain the buy-in for the new SA from recalcitrants of the old.
Ray Hartley noted in his book, Ragged Glory, that a practical justification for the TRC amnesty process was “to take the heat out of the possibility of a right-wing insurrection” — then a distinct possibility.
Quite who today could mount a revolt against the current order in defence of their corrupt malpractice, which on Madonsela’s proposal would be open to amnesty, is bewilderingly unclear.
The best justification for the original TRC process was the opportunity it gave to the victims of oppression to be heard. And for the grotesque and ghoulish detail of the apartheid state to be ventilated.
Today the Zondo commission, with its grizzly and daily revelations of state corruption and its enablers, is already performing this essential task.
Another cardinal motivation for the original TRC, on which it did not properly deliver, was to provide justice for the victims of oppression. But it certainly gave them a voice and lent them a sympathetic ear.
But who are the victims of state capture today? It is the millions of taxpayers. Public opinion suggests this vast victim group will hardly be satisfied with the Kumbaya approach suggested by Madonsela.
A key aspect of any effective system of justice is deterrence. Richard Calland, an associate professor of law at UCT, points out “the fact that future corrupt actors may take the risk” given that previous malefactors have been given an amnesty. In contrast, “the successful prosecution of corrupt officials is likely to discourage repetition”.
And then there is the real problem: Thousands of perpetrators of state and struggle violence simply chose not to appear before the original TRC and took their chances. Very few prosecutions followed.
But since 1998, the entire prosecution and justice system has been hollowed out by Zuma and his merry thieves and enablers. So, why should anyone now voluntarily come forward to confess a crime, when the chances of being charged remain slight?
Cameron Dunstan-Smith, a Johannesburg attorney and head of crime and investigations at Herbert Smith Freehills, has offered a range of innovations that could incentivise crooked corporates to spill the beans. He has floated the UK idea of “deferred prosecution agreements”. This means the company gets a delay on being prosecuted if it offers full co-operation to the authorities and pays a hefty fine. But the possibility of future prosecution remains, depending on the behaviour of the entity.
The small fry, to whom in a later clarification Madonsela suggested she was referring, have the possibility of plea bargains. These ideas and an invigoration of our National Prosecuting Authority, not inapt analogies such as an ill-fitting TRC for corruption, would best protect the public.
That’s what the role of public protector is all about.