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South Africa: Why an Amnesty for Grand Corruption Is a Bad Idea

4 min read.

A full confession can bring amnesty and immunity from prosecution or civil procedures for the crimes committed. Therein lies the central irony. As people give more and more evidence of the things they have done they get closer and closer to amnesty and it gets more and more intolerable that these people should be given amnesty.

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South Africa: Why an Amnesty for Grand Corruption Is a Bad Idea
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South Africa’s former Public Protector, Thuli Madonsela, provoked a political storm recently when she suggested that public servants implicated in grand corruption should be given the chance to apply for amnesty.

Many South Africans, weary of rampant, unchecked and unaccountable corruption, could be forgiven for asking: what on earth was she thinking?

Madonsela won the admiration of many South Africans because of her steely resolve in the face of malfeasance and breaches of the rules of integrity in public office. Her proposal suggested she might be going soft on corruption.

To be effective as the Public Protector Madonsela required many attributes, as I set out in my 2013 book, The Zuma Years. These included independence of mind, a very thick skin and a certain contrarian eccentricity that rendered her far less susceptible to the numerous attempts to intimidate her as she took on then president Jacob Zuma and his state capture network.

Her amnesty idea displays all of these characteristics.

It should be taken seriously, if only to affirm the merit of a diametrically opposed position.

It’s an inherently bad idea.

Bad timing

Madonsela’s timing is especially unfortunate. It is only in very recent times that the Hawks, the priority crimes investigating police unit, and other agencies of the criminal justice system appear to have recovered the institutional capacity to begin prosecuting those responsible for the deep-lying state capture project.

Recent developments have begun to suggest that the net is finally tightening around the bigger fish that are the true architects of systematic corruption in the country.

This has been widely welcomed. Accountability, at last.

Against the grain of this public view, Madonsela, a law professor, entered the fray to suggest that instead of being tough on the perpetrators, an olive branch should be extended.

This is an example of the “independent-mindedness” for which Madonsela was rightly acclaimed during her seven-year term as Public Protector from 2009-2016.

It is also not only contrarian, but also eccentric in that it makes so little sense.

To be fair to her, she tried to clarify later that she did not mean amnesty for every perpetrator, and certainly not the big fish. Her idea is targeted at those whose “status”, she says, “in the food chain is quite junior”.

But the first of a series of fatal flaws in her idea is about where to draw the line: on what basis should one distinguish the smaller from the bigger fish?

Those who had played a “minor but critical” role was how she framed her idea. There is already a problem here: is it possible for something to be both “critical” to a (criminal) enterprise and yet still “minor”?

I think not.

Half-baked idea

Madonsela confirmed that amnesty should be available on a legal rather than a moral basis. Yet, in a radio interview after she’d floated the idea, and drawn a lot of flak, she added to the confusion.

At first Madonsela spoke of people who may have “bent the rules” unwittingly, in which case, they may well have a legal defence to criminal conduct. Later, she clarified that she intended to cover individuals with “agency”, even to the extent that their palms have been “greased with money” (which, she argued, they would have to pay back in return for amnesty).

If the right to amnesty was indeed to be a legal entitlement, then the terms on which entitlement to amnesty applies have to be very clearly and carefully drawn. This much has been revealed in Constitutional Court decisions concerning the legal rationality of presidential amnesties or pardons in the case of women convicts and perpetrators of apartheid era offences.

Madonsela’s public policy rationale appears to be that without an inducement, the smaller cogs in the bigger wheels of state corruption may seek to hide and avoid prosecution when what is required is that they should come forward with information about the bigger fish.

Perhaps, then, an offer of amnesty – in effect, a legal right to indemnity from prosecution – deserves to be given serious consideration. This, especially if it is the case that the National Prosecuting Authority is struggling to pull together the evidence to bring strong prosecutions against the most powerful perpetrators of state capture corruption.

But there is no evidence that this is the situation. And, moreover, there are major downsides to be weighed in the balance.

The case against amnesty

First of all: deterrence.

The fact that amnesty has been granted in the past may encourage future corrupt actors to take the risk. The corollary is that the successful prosecution of corrupt officials is likely to discourage repetition.

Secondly, the arguments put forward by Madonsela would, in my view, provide grounds for mitigation in sentencing – not for amnesty. One example would be “small fish” cooperating with the investigative authority and providing evidence about the bigger fish. Another example would be if someone could show that they were bullied into bending procurement rules by a superior and more powerful individual in the system.

Another possible avenue – common practice in criminal justice systems around the world – is the use of a “plea bargain”. Here an accused person trades information in return for facing a less serious charge.

Amnesty would, in effect, deprive them of this opportunity and could thereby undermine the integrity of the whole criminal justice system.

The other major consideration is perception – both in the eyes of key stakeholders, such as the investment community and, secondly, the general public.

Investors are especially eager to see if South Africa has the capacity to hold to account those who contaminated the democratic state and so undermined fair competition by enabling a rent-seekers’ paradise. It is about the strength of the rule of law. Investors want to feel confident that this is one destination where the rule of law holds and where, because of state capture prosecutions, there is less risk of a repeat.

And surely, above all else, the public will feel cheated if perpetrators of state capture corruption, however “minor”, get away scot-free. This, more than anything, would encourage a lawless society, steeped in a culture of impunity rather than accountability.

A dangerous path to tread

Attempts to trade amnesty for information about state corruption have caused conflict as well as controversy in other countries. One notable example was in Tunisia in 2017.

But the biggest danger is that it simply sends the wrong message. This was aptly spelt out by esteemed South African artist William Kentridge reflecting on a previous attempt at taking the amnesty road in South Africa through the Truth and Reconciliation Commission process.

Admittedly, Madonsela has a different purpose in mind than the national reconciliation ambition of the Truth and Reconciliation Commission process. But, no, Advocate Madonsela, a blanket amnesty would send the wrong message at the worst possible time.The Conversation

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Richard Calland is an Associate Professor in Public Law, University of Cape Town.

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Conflict in Marsabit: Voter and Politician Locked in a Danse Macabre

The nature of the conflict in Marsabit has changed. Deaths are tallied, and ledgers of the unmourned dead are meticulously kept.

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Counting the dead

Ninety-three deaths in the past year, the count has dominated national TV coverage of conflict in Marsabit, contributing to the trend of turning the effect of the conflict and the loss into a body-counting exercise.

A year ago, Saku Member of Parliament (MP) Ali Raso Dido spoke of the number of people killed in his constituency. On his list there were only the Borana dead; he did not include the dead from other communities. To him, as an MP, only Borana lives mattered and were worthy of raising on the floor of parliament.

In a lengthy response, his counterpart, North Horr MP Francis Chachu gave the number of dead in his constituency. He listed only the Gabra dead.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced. Governor Mohamud Ali called a press conference at which the list of the dead was the central theme of his statement.

Since the state has no official data on number of people who have died as a result of conflict in Marsabit, all these accounts are true, but they are also subjective and incomplete. Just why the counting is done, where to begin counting, who is to be counted and who does the counting are the concerns of these times.

In between the statistics informing politicians’ petitions to parliament, or forming the subject of a governor’s hasty press statement or the prop of a news story, there is a whole social milieu within which the conflict exists and how it is processed at the political and economic levels of grief.

A macabre dance between voters and politicians

Proximity to countries in conflict—Ethiopia, Somalia, and South Sudan—and the easy availability of Small Arms and Light Weapons have been the central explanation for the conflict in Marsabit County. While valid and, in some instances, correct, this explanation misses the fact of the banality of conflict in the county—a more insidious new lexicon that normalizes killing beyond the traditional boundaries of ethnic conflict is developing.

In the last cycle of conflict in Marsabit County, 75 houses were burnt down, and about 850 families were displaced.

This change in the ethnic conflict dynamic is a function of a perverse, mutually reinforcing loop involving politicians and voters, each egging on the other to visit more death and destruction on the opposite community. The hypercompetitive nature of local elections post-devolution significantly exacerbates this loop.

Thus, taking the “war” to the other community becomes a politician’s campaign pledge rather than the promise of building hospitals and schools or bringing about the desperately needed development. The more vociferous a politician becomes, the more likely he is to be elected.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Ancestral hatred theory

While it is often cast as anchored in ancestral hatred, there is something new about conflict in Marsabit. And because it is mutating even as we all watch, we sometimes miss it. What makes it unique is its banalisation.

Three aspects make recent conflicts in Marsabit distinct from the old ones.

One, the slow-burning, episodic nature of the conflict and the attendant “peace” meetings have come to be accepted as an immutable fact of life. But the peace-industrial complex has done little to end the conflict; instead, the conflict has mutated into something new, complete with a new lexicon and signals far more incendiary than the old conflict. This rinse-and-repeat cycle has spawned a coterie of peace entrepreneurs activated at a moment’s notice whenever violence breaks out.

This perverse incentive makes politicians more incendiary, making both the threat of violence and the violence itself politically rewarding.

Two, with increased competition over land and resources under devolution, this “new” conflict is increasingly framed in apocalyptic, existential language. As a result, voters prefer politicians who cast themselves as the “defenders” of the community from outsiders’ keen on taking their land and resources. Thus, voters lean towards politicians with a “warlord” mentality rather than those with a good development record.

Three, in this “new” conflict controlling the narrative is central, making the national media and the local-language radio stations the battleground. Where the national media frames the region as a godforsaken Badlands, local-language radio stations offer politicians a safe space from where to speak directly to their people unfiltered. WhatsApp and the ever-mushrooming Facebook groups act as a functional auxiliary for sharing media content. This interface has made the Marsabit conflict far deadlier on and offline.

Conflict as theatre 

Every death in Marsabit is increasingly seen through the prism of cold arithmetic—losing and winning. This strips death of its meaning. Every death is accounted for on a ledger; it is a debt to be repaid with the death of another. Death is performance theatre, acted rather than mourned.

This theatre extends to the burial, measured by the length of the cavalcade of vehicles that accompany the body to the grave, and the promises made by politicians at his funeral or in their interviews in the local and national media. During a recent funeral, the number of vehicles contributed to the drama as cars stretched a kilometre from the centre of town to the cemetery.

Every death is accounted for on a ledger; it is a debt to be repaid with the death of another.

There was such silence in the picture that the silence was in our minds, but we know that the slow pace of the vehicles inching towards the cemetery had no connection to the past murders. In the prevailing mind-set, this image will replace that of the mad man whose throat had been slit at 8 p.m. near the market and who had tried to walk from the back of the police van into the hospital and failed—rising and falling, rising and falling.

Later, as the region’s leaders foam at the mouth on TV, everyone goes home with smaller versions of the same talk. Emotions are gauged through the metrics of tribe, place of murder, murder weapon, the known backstories of the casualties; many went unmoored as collaterals of the drama that people made of the conflict.

Part of the post-death package is “what have our leaders said?” This reaction is baked into the system of conflict, whether the said leaders are maintaining the honour of the tribe. Whether they have promised to even the score or repay the death debts. Their words are shared on and off line as a whispered social contract.

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Kenyans Need an Education That Is Human: A Call to Conscience

Colonial and post-colonial governments have worked to separate education from access to culture and information, and to isolate the school as the only source of learning.

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This is a call to Kenyans of conscience to step back and reflect on the lies about education that are circulating in the media, the schooling system and government. Foreign sharks have camped in Kenya to distort our education. Using buzzwords such as “quality” and “global standards”, these sharks seek to destroy the hopes, dreams and creativity of young Africans, not just in Kenya, but in the whole region, and to make a profit while at it. With the help of local professors, bureaucrats and journalists, they spread hatred for education among the population. At the same time, they ironically create a thirst for schooling that makes parents resort to desperate measures to get their children into school, going as far as accepting violence and abuse in schools that causes children to take their own lives.

This insanity must end.

We must accept that education is a life endeavour through which people constantly adapt to their social and natural environment. Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity. That is why education, culture and access to information are inseparable.

However, since colonial times, both the colonial and “independence” versions of the Kenya government have worked hard to separate education from culture and access to information. They have done so through crushing all other avenues where Kenyans can create knowledge. We have insufficient public libraries and our museums are underfunded. Arts festivals, where people come together and learn from unique cultural expressions, have been underfunded, and by some accounts, donors have been explicitly told not to fund creativity and culture. In the meantime, artists are insulted, exploited and sometimes silenced through censorship, public ridicule and moralistic condemnations in the name of faith.

All these measures are designed to isolate the school as the only source of learning and creativity, and this is what makes the entry into schools so cutthroat and abusive.

But entering school does not mean the end of the abuse. Once inside the schools, Kenyans find that there is no arts education where children can explore ideas and express themselves. In school, they find teachers who themselves are subject to constant insults and disruptions from the Ministry of Education and the Teachers Service Commission. Under a barrage of threats and transfers, teachers are forced to implement the Competency Based training which is incoherent and has been rejected in other countries. Many of the teachers eventually absorb the rationality of abuse and mete it out on poor children whose crime is to want to learn. This desperation for education has also been weaponized by the corporate world that is offering expensive private education and blackmailing parents to line the pockets of book publishers.

Education is more than going to school and getting the right paper credentials. Education occurs anywhere where human beings process what they perceive, make decisions about it and act together in solidarity.

By the end of primary and secondary school, only a mere 3 per cent of total candidates are able to continue with their education. This situation only worsens inequality in Kenya, where only 2 per cent of the population have a university degree, and where only 8,300 people own as much as the rest of Kenya.

But listening to the government and the corporate sector, you would think that 98 per cent of Kenyans have been to university. The corporate sector reduces education to job training and condemns the school system as inadequate for meeting the needs of the corporations. Yet going by statements from the Kenya Private Sector Alliance (KEPSA) and the government, there is no intention to employ Kenyans who get training. The government hires doctors from Cuba and engineers from China, and then promises the United Kingdom to export our medical workers. KEPSA is on record saying that we need to train workers in TVET so that they can work in other African countries.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland. Rather, these entities are treating schooling as a conveyor belt to manufacture Kenyans for export abroad as labour and to cushion the theft of public resources through remittances.

The media and the church also join in the war against education by brainwashing Kenyans to accept this dire state of affairs. The media constantly bombards Kenyans with lies about the composition of university students, and with propaganda against “useless degrees”. The church has abandoned prophecy and baptizes every flawed educational policy in exchange for maintaining its colonial dreams of keeping religion in the curriculum to pacify Kenyans in the name of “morality”.

The government is now intending to restrict education further through the Competency-Based Curriculum (CBC) which seeks to limit education through pathways that prevent children from pursuing subjects of their interests, and by imposing quotas on who can pursue education beyond secondary school. At tertiary level, the government is devising an algorithm that will starve the humanities and social sciences of funding. It claims that funds will instead go to medical and engineering sciences, which are in line with Kenya’s development needs.

But recall that foreigners are doing the work of medical professionals and engineers anyway, so “development” here does not mean that Kenyan professionals will work in their home country. They will work abroad where they cannot be active citizens and raise questions about our healthcare and infrastructure.

The proposed defunding of the arts, humanities and social sciences aims to achieve one goal: to reserve thinking and creativity for the 3 per cent of Kenyans who can afford it. This discrimination in funding of university education is about locking the majority and the poor out of spaces where they can be creative and develop ideas. It also seeks to prevent Kenyans from humble backgrounds from questioning policies and priorities that are passed under dubious concepts such as “development needs” that are largely studied in the humanities and social sciences.

It is clear that the Kenya government and the corporate sector do not want Kenyans to go to school and become active citizens in their homeland.

Clearly, there is a war against education and against Kenyans being creative and active citizens in their own country. For the 8,300 Kenyans to maintain their monopoly of resources, they need to distract Kenyans with propaganda against education, they need to limit Kenyans’ access to schooling, and they need to shut down alternative sources of training, information and knowledge. By limiting access to schooling and certificates, the 8,300 can exploit the work of Kenyans who have not been to school, or who have not gone far in school, by arguing that those Kenyans lack the “qualifications” necessary for better pay.

We must also name those who enable this exploitation. The greedy ambitions of the political class are entrenched by people who, themselves, have been through the school system. To adapt Michelle Obama’s famous words, these people walked through the door of opportunity, and are trying to close it behind them, instead of reaching out and giving more Kenyans the same opportunities that helped them to succeed. This tyranny is maintained by a section of teachers in schools, of professors in universities and of bureaucrats in government, who all fear students and citizens who know more than they do, instead of taking joy in the range of Kenyan creativity and knowledge. The professors and bureaucrats, especially, are seduced into this myopia with benchmarking trips abroad, are spoon-fed foreign policies to implement in Kenya. They harvest the legitimate aspirations of Kenya and repackage them in misleading slogans. For instance, they refer to limited opportunities as “nurturing talent”, and baptize the government’s abandonment of its role in providing social services “parental involvement”.

These bureaucrats and academics are helped to pull the wool over our eyes by the media who allow them to give Kenyans obscure soundbites that say nothing about what is happening on the ground. They also make empty calls for a return to a pre-colonial Africa which they will not even let us learn about, because they have blocked the learning of history and are writing policies to de-fund the arts and humanities. We must put these people with huge titles and positions to task about their loyalty to the African people in Kenya. We call on them to repent this betrayal of their own people in the name of “global standards”.

We Kenyans also need an expanded idea of education. We need arts centres where Kenyans can meet and generate new ideas. We need libraries where Kenyans can get information. We need guilds and unions to help professionals and workers take charge of regulation, training and knowledge in their specializations. We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

We need recognition of our traditional skills in areas like healing, midwifery, pastoralism, crafts and construction. We need a better social recognition of achievement outside business and politics. It is a pity that our runners who do Kenyans proud, our scientists, thinkers, artists and activists who gain international fame, are hardly recognized in Kenya because they were busy working, rather than stealing public funds to campaign in the next election. Our ideas are harvested by foreign companies while our government bombards us with useless bureaucracy and taxes which ensure that we have no impact here.

We need for all work to be recognized independent of certification, so that people can be paid for their work regardless of whether one has been to school or not.

Most of all, we need an end to the obsession with foreign money as the source of “development”. We are tired of being viewed as merely labour for export, we are tired of foreigners being treated as more important than the Kenyan people. We are tired of tourism which is based on the tropes of the colonial explorer and which treats Africans as a threat to the environment. And the names of those colonial settlers who dominate our national consciousness must be removed from our landmarks.

Development, whatever that means, comes from the brains and muscles of the Kenyan people. And the key to us becoming human beings who proudly contribute to society and humanity is education. Not education in the limited sense of jobs and certificates, but education in the broader sense of dignity, creativity, knowledge and solidarity.

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UN Panel of Experts: Kenya Urged to Back Former CJ Willy Mutunga Candidacy

Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

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On 28 June 2021, the Human Rights Council of the United Nations called on the UN to set up a panel of experts to investigate systemic racism in policing against people of African descent. This call came one year after the police murder of George Floyd in the United States. The UN panel of three experts in law enforcement and human rights will investigate the root causes and effects of systemic racism in policing, including the legacies of slavery and colonialism, and make recommendations for change. Willy Mutunga, the former Chief Justice and President of the Supreme Court of Kenya has been nominated by a number of international organisations to be one of the three experts. International human rights activists are calling on the government of Kenya to join with others in Global Africa to support the nomination of Willy Mutunga.

The government of Kenya is strongly placed to support the nomination of its native son, an internationally respected jurist. Kenya is currently a member of the UN Security Council and an influential member of “A3 plus 1”, the partnership between the three African members of the Security Council and the Caribbean member of the UNSC, St Vincent and the Grenadines. Last week on 7 September, President Uhuru Kenyatta co-chaired the African Union, Caribbean Community summit. This meeting between the AU and the Caribbean states agreed to establish the Africa, Brazil, CARICOM, and Diaspora Commission. This Commission will mature into a politico/economic bloc embracing over 2 billion people of African descent. Kenya, with its experience of reparative justice from the era of the Land and Freedom Army, has joined with the Caribbean to advance the international campaign to end the dehumanization of Africans. African descendants around the world have lauded the 2021 Human Rights Council Report for calling on the international community to “dismantle structures and systems designed and shaped by enslavement, colonialism and successive racially discriminatory policies and systems.”

Background to the nomination of Hon Willy Mutunga

The murder of George Floyd on 25 May 2020 led to worldwide condemnation of police killings and systemic racism in the United States. The African Members of the UN Human Rights Council pushed hard to garner international support to investigate systemic racism in policing in the United States. In the wake of the global outcry, there were a number of high-level investigations into police killings of innocent Blacks. Three distinguished organizations, the National Conference of Black Lawyers, the International Association of Democratic Lawyers and the National Lawyers Guild convened a panel of commissioners from Africa, Asia, Europe, Latin America and the Caribbean to investigate police violence and structural racism in the United States. Virtual public hearings were held in February and March 2021, with testimonies from the families of the victims of some of the most notorious police killings in recent times.

In its report, a panel of leading human rights lawyers from 11 countries found the US in frequent violation of international laws, of committing crimes against humanity by allowing law enforcement officers to kill and torture African Americans with impunity and of “severe deprivation of physical liberty, torture, persecution and other inhumane acts”.

Among its principal findings, the Commission found the US guilty of violating its international human rights treaty obligations, both in terms of laws governing policing and in the practices of law enforcement officers, including traffic stops targeting Black people and race-based stop-and-frisk; tolerating an “alarming national pattern of disproportionate use of deadly force not only by firearms but also by Tasers” against Black people; and operating a “culture of impunity” in which police officers are rarely held accountable while their homicidal actions are dismissed as those of just “a few bad apples”.

After the Commission’s report was published, the convening organizations’ Steering Committee mobilized international public opinion to publicize its findings. Former CJ Willy Mutunga was one of the jurists in Africa who worked hard to publicize the report’s findings and recommendations.

It was in large part on the basis of these findings that the Human Rights Council issued its own report at the end of June. The United Nations decided to set up a panel of experts to investigate systemic racism in policing against people of African descent, adding international weight to demands in the United States for accountability for police killings of African Americans, and reparations for victims. The panel of three experts will have a three-year mandate to investigate the root causes and effects of systemic racism in policing. Many organizations have submitted names for suggested panel members. Legal experts from Global Africa and international jurists have recommended Willy Mutunga to be one of the three panellists. Thus far, the following organizations have endorsed the candidacy of Willy Mutunga:

  1. The African Bar Association, with membership in 37 African Countries.
  2. The United States Human Rights network (USHRN), a National network of U.S. organizations working to strengthen the Human Rights movement in the US.
  3. International Commission of Inquiry on Systemic Racist Police Violence Against People of African Decent in the United States.
  4. Society of Black Lawyers of the United Kingdom
  5. Bandung Conference, a Diaspora Human Rights network based in Nairobi, Kenya.

There are now calls for the government of Kenya to step forward to be more proactive to lobby the Human Rights Council and to write letters to its President, H.E. Nazhat Shameen Khan (hrcpresidency@un.org), endorsing the candidature of Dr Mutunga. His CV is included for those who want to write to the Minister of Foreign Affairs for Kenya to lead the endorsement of Willy Mutunga.

The Steering Committee of the International Commission of Inquiry on Systemic Racist Police Violence in the United States is coordinating the campaign for Dr Willy Mutunga to be appointed by the UNHRC as a member of the International Expert Mechanism to monitor compliance of the UNHRC findings and recommendations.

The Government of Kenya and Human Rights groups are kindly asked to send copies of their endorsements to the Coordinator, International Commission of Inquiry on Systemic Racist Police Violence in the United States, lennoxhinds@aol.com.

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