The writer asks: Is amnesty a price worth paying for something we may well already have?(iStock)
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Do we really not have the information, or the means by which to obtain it, as to how state capture has happened. Is amnesty a price worth paying for something we may well already have? writes Nicole Fritz
In the news recently, and already the subject of several incisive commentaries, is a proposal that perpetrators of state capture be granted amnesty.
But what hasn’t appeared to be understood at all is the scheme and incentives by which amnesties work and why we in South Africa are at present very far from a place in which amnesty could make any difference at all either to our political culture or to the functioning of our criminal justice system.
What is not being proposed is a blanket amnesty - of the type decreed by departing dictators in many countries in South America seeking to indemnify themselves and their supporters for mass crimes perpetrated during the military junta years ahead of democratic governments assuming power.
Blanket amnesties by their nature seek to confer legitimacy on past wrongful conduct and far from allowing a reset of attitudes - a recognition of past criminality - simply allow for the illegality of the old order to infect the new.
It is for this reason, among others, that many of these blanket amnesties were set aside once democratic dispensations were installed.
As the authors of the recently published proposal for amnesty for state capture crime make clear, even at this very initial stage of thinking, is that an amnesty would be conditional: the grant of amnesty made conditional on the applicant for amnesty making full disclosure of the "relevant corrupt activities and the parties involved".
What is entailed is a simple transactional exchange, premised on the idea that each of the parties to the exchange obtains from it something they want.
Notionally, the state obtains information it may not already have available to it and the individual applicant obtains amnesty or immunity from criminal and civil penalty.
It's worth pausing here and asking whether, among the many deficits faced by South Africa as a result of past and ongoing state capture, a deficiency in information as to the extent and depth of state capture is among these.
In other words, do we really not have the information, or the means by which to obtain it, as to how state capture has happened.
Is amnesty a price worth paying for something we may well already have?
But far more important in evaluating this scheme and its utility, is understanding and measuring the incentives that will operate for those applying for amnesty.
And here’s the real rub: the most powerful incentive for any person making application for amnesty is that without such amnesty they face the real likelihood of criminal punishment or civil penalty.
And for there to be such incentive, there has in fact to be a real likelihood of them facing prosecution.
In other words, for the carrot to really induce, the stick also has to be very much present.
Given the current track record, every potential applicant for amnesty could right now fairly confidently assume that there is just no such likelihood of any imminent prosecution.
Without any real incentive to apply for amnesty - with or without it, the potential applicant faces no real risk of prosecution - there appears no real utility or value to the proposed amnesty.
And that’s what the authors gloss over when, in making the case for amnesty, they point to Hong Kong’s experience of granting corruption amnesties in 1977.
While it may be true that the award of the amnesty had a game-changing effect, helping move Hong Kong from one of the most corrupt to one of the least corrupt territories in the world, as the authors of the South African proposal themselves recognise, the award of amnesty only occurred after Hong Kong’s Independent Commission Against Corruption "embarked on a rampage of investigations and prosecutions into instances of corruption".
These investigations and prosecutions ultimately triggered such formidable opposition from those who were the intended targets that an amnesty was proposed to allow Hong Kong to move beyond the impasse.
But if amnesty allowed a way for perpetrators of corruption to snatch eagerly at the chance to untie the noose, it was only because investigations and prosecutions, and the threat thereof, had placed the rope around their necks.
READ: Mandy Wiener: Amnesty for corruption? It would look like we've given up
The corrosive effects of amnesty without corresponding prosecution lives with us in South Africa - a moral wasteland knitted into the heart of our criminal justice system.
As with the state capture amnesty proposal, South Africa’s Truth and Reconciliation Commission provided for conditional amnesty - allowing for amnesty for certain crimes committed during the apartheid era provided full disclosure of all the relevant facts was made by the applicant.
The essential compact underlying the amnesty scheme was that those who failed to make application for amnesty, or were not granted amnesty, would face prosecution.
Successive heads of the National Prosecuting Authority have reneged on that pact - failing to mount prosecutions for apartheid era crimes and confirming the expectations of those many perpetrators who entirely ignored the process, and their victims, instead confidently calculating that they would not in any event ever face any accountability.
What was intended as conditional, individual amnesty was in the result a blanket amnesty.
Both examples - the Hong Kong corruption amnesty and the TRC amnesty-related process - demonstrate vividly that conditional amnesty requires the real threat of prosecution.
Here’s an idea then: if successful amnesty processes and successful prosecution processes both require some successful prosecutions as a start, why don’t we start with a few successful prosecutions?
- Nicole Fritz is a public interest lawyer
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