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

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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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Educating the Native and the Ivy League Myth

Elite schools in the US continue to place a premium on institutions, not ideas. Where you went to school is what matters.

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As a young student, I was always fascinated by the “top” universities and the erudite people that emerged from those august institutions. My first contact with Ivy League people was when I arrived at Mpala Research Centre in Laikipia in 1999 to start my MSc research. I met students and faculty from Princeton University (which is a trustee of the research centre) and was reassured that they looked “normal”, given all the academic challenges and foibles that a Kenyatta University student like me had. After I finished my MSc, the administration was impressed enough with my work to offer me a job as resident scientist, which I took up with the alacrity of someone catching a big break through hard work (I got a rude awakening later, but that’s a story for another day). As part of my job, I was to supervise a group of Princeton undergraduates undertaking a senior field project and, wanting impress, I sharpened my ecologist brain, especially because I thought I would be instructing some of the world’s sharpest young minds. Now I laugh at my consternation when, after mapping out clear and easy ecological transects for them, they strayed off into a neighbouring ranch and I got a call from the security personnel there that they were sunbathing topless on the research vehicle (they were ladies) and that the boss might be offended.

Later on, I asked a postgraduate student from the same institution how these ladies could be so casual about their studies and she couldn’t hide her amusement at my ignorance. “Grad school is competitive. Undergrads get in because of money and name recognition.” I was stunned, but I remembered this when I saw the poor work they submitted at the end of their study. Being an aspiring lecturer (and a student of the late brilliant Prof R.O. Okelo) I marked them without fear or favour, assuming that they would be used to such standards at Princeton. I was told that I couldn’t give them such low marks because they were supposed to qualify for med school after their biology degrees.

They strayed off into a neighbouring ranch and I got a call from the security personnel there that they were sunbathing topless on the research vehicle.

The next cohort included one serious student who I actually enjoyed instructing and who finished her course successfully. By that time though, I was getting restless and had started writing an academic and financial proposal for my PhD, and I finished it about six months after my student had returned to the US to graduate. The then Director of Mpala, Dr Georgiadis, refused to let me do my PhD on the job, so I submitted my proposal to several conservation organizations, including the New York-based Wildlife Conservation Society. I received a positive response from them (offering me a grant) which hit me with a strange mixture of feelings. First of all, I was elated at the prospect of starting my PhD, but I was completely baffled by the signature on the award letter. It was signed by the undergraduate student that I had supervised about eight months earlier. An American undergraduate who had spent two months in Africa was somehow qualified to assess a PhD proposal on the ecology of African wildlife written by an African MSc holder. It was my rude awakening to the racial prejudice that is de rigueur in African conservation practice. But I had to get my academic career moving, and indulge my first taste of the ultimate luxury that my competence and my work could afford me, which was the ability to say “NO”. It was with extreme pleasure that I wrote and signed my letter of resignation from my job at Mpala, leaving it on the Director’s desk.

Years later, after I finished my PhD and had a useful amount of conservation practice under my belt, I attended the Society for Conservation Biology conference in Sacramento, California, where there was a side event featuring publishers from several Ivy League universities. I excitedly engaged them because at the time Gatu Mbaria and I were in the middle of writing “The Big Conservation Lie”. I pointed out to all of them that there were no books about conservation in Africa written by indigenous Africans, but they were uniform in their refusal to even read the synopsis of what we had written. I later understood why when I learned that in US academia, African names — as authors or references — are generally viewed as devaluing to any literature.

An American undergraduate who had spent two months in Africa was somehow qualified to assess a PhD proposal on the ecology of African wildlife written by an African MSc holder.

From Sacramento, I made the short trip to Stanford University in Palo Alto, to give a seminar to an African Studies group. I felt honoured to be making an academic contribution at an Ivy League university and I prepared well. My assertions about the inherent prejudices in African conservation practice were met with stunned silence by the faculty, many of whom are involved with conservation research in Africa. One bright spot in that dour experience was the brilliant PhD student who echoed my views and pointed out that these prejudices existed within academia as well. I later found out that he was Kenyan — his name is Ken Opalo and he now teaches at Georgetown University.

Fast forward to today. The Big Conservation Lie was published, and after the initial wailing, breaking of wind, gnashing of teeth and accusations of racism, Mbaria and I are actually being acknowledged as significant thinkers in the conservation policy field and our literary input is being solicited by various publications around the world. Now, the cultural differences between how European and American institutions treat African knowledge are becoming clear (certainly in my experience). I have been approached by several European institutions to give talks (lectures), and have contributed articles and op-eds (to journals and magazines) and one book foreword. Generally, the approach is like this:

“Dear Dr Ogada, I am_______ and I am writing to you on behalf of________. We are impressed with what you wrote in _____ and would appreciate it if you would consider writing for us an article of (length) on (topic) in our publication. We will offer you an honorarium of (X Euros) for this work, and we would need to receive a draft from you by (date). . .” Looking forward to your positive response. . .”

When inviting me to speak, the letters are similarly respectful and appreciative of my time. The key thing is the focus on and respect for one’s intellectual contribution. Publications from American Ivy league schools typically say:

“Dear Dr Ogada, I am __________, the editor of __________. We find your thoughts on _______ very interesting and we are pleased to invite you to write an essay of________ (length) in our publication. Previous authors we have invited include (dropping about 6-8 names of prominent American scholars).

The entire tone of the letter implies that you are being offered a singular privilege to “appear” in the particular journal. It is even worse when being asked to give a lecture. No official communication, just a casual message from a young student saying that they would like you to come and talk to their class on__________ (time and date on the timetable). No official communication from faculty or the institution. After doing that a couple of times, I realized that the reason these kids are so keen to have an African scholar speak to them and answer all their questions is because they need his knowledge, but do not want to read his publications, or (God forbid) have an African name in the “references” section of their work.

The reason these kids are so keen to have an African scholar speak to them and answer all their questions is because they need his knowledge, but do not want to read his publications.

European intellectuals seem to be catching on to the fact that knowledge and intellect reside in people, not institutions. That is why they solicit intellectual contributions based on the source of an idea they find applicable in that space and time. Name recognition doesn’t matter to them, which is why they seek people like Ogada, who doesn’t even have that recognition in Kenya. The elite schools in US still place this premium on institutions, which is why whenever an African displays intellectual aptitude, those who are impressed don’t ask about him and his ideas, but where he went to school. They want to know which institution bestowed this gift upon him.

For the record, I usually wait about a week before saying “no” to the Ivy League schools. Hopefully, they read my blog and will improve the manner in which they approach me, or stop it altogether.

Aluta continua.

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Cuba Can Help Vaccinate the World

On 25 January, the Progressive International will host a special briefing live from Havana with Cuba’s leading scientists, government ministers and public health officials as part of its Union for Vaccine Internationalism.

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2022 began with a “tsunami” of new Covid-19 cases crashing over the world, according to the World Health Organization. Over 18 million cases have been recorded in the past week alone, a record number since the pandemic began two years ago. In the first 10 days of January, nearly 60,000 Covid-19 deaths have been recorded worldwide — though the total death count is far higher than the official statistics describe.

The Omicron variant is reported to have less “severe” implications among vaccinated patients. But the world remains perilously under-vaccinated: 92 of the WHO’s member countries missed the 2021 target of 40 percent vaccination; at the current pace of rollout, 109 of them will miss their 2022 targets by July.

These statistics tell a story of a persistent vaccine apartheid. Across the EU, 80 percent of all adults have been fully vaccinated against Covid-19. Meanwhile, only 9.5 percent of people in low-income countries have received a single dose. Omicron is a death sentence for thousands in these countries — and as the virus travels across the Global South, new variants will emerge that may be less “mild” for the vaccinated populations of the North.

But the governments of these Northern countries refuse to plan for global vaccination — or even meet their own pledges. By late last year, they had delivered only 14% of the vaccine doses that they had promised to poorer countries through COVAX, the UN vaccine-sharing initiative. Big pharmaceutical corporations are focused almost exclusively on production of boosters for the world’s rich countries, creating a shortfall of three billion doses in the first quarter of this year.

President Joe Biden could easily help fill this shortfall by compelling US pharmaceutical corporations to share their vaccine technology with poorer nations. But he has so far refused to do so. A new production hub in Africa — where only 3 percent of people are vaccinated — is now trying to replicate the Moderna vaccine. But without Moderna’s help, or Joe Biden’s executive action, production could take more than a year to begin.

Amidst this crisis of global solidarity, Cuba has emerged as a powerful engine of vaccine internationalism. Not only has the island nation successfully developed two Covid-19 vaccines with 90 percent effectiveness, and vaccinated more than 90 percent of its population with at least one dose of its homegrown vaccine, Cuba has also offered its vaccine technology to the world. “We are not a multinational where returns are the number one reason for existing,” said Vicente Vérez Bencomo of the Finlay Vaccines Institute in Cuba. “For us, it’s about achieving health.”

But the US and its allies continue to oppress and exclude Cuba from the global health system. The US blockade forced a shortage of syringes on the island that endangered its vaccine development and hindered mass production. US medical journals “marginalize scientific results that come from poor countries,” according to Vérez Bencomo. Meanwhile, the WHO refuses to accredit the Cuban vaccines, despite approval from regulators in countries like Argentina and Mexico.

That is why the Progressive International is sending a delegation to Havana: to combat misinformation, to defend Cuban sovereignty, and to help vaccinate the world.

Bringing delegates from the Union for Vaccine Internationalism, founded in June 2021 to fight the emerging apartheid, the Progressive International will convene Cuban scientists and government representatives to address international press and members of the scientific community in a showcase of the Cuban vaccine on 25 January.

The goals of the showcase are both local and global. Drawing attention to the promise of the Cuban vaccine and the perils of the US embargo against it, the showcase aims to forge connections between Cuba’s public biotech sector and manufacturers who might produce the vaccine and help the Cuban government recuperate the costs of its development.

In the process, the showcase aims to set an example of international solidarity in the face of the present global health crisis, advancing the cause of vaccine internationalism around the world.

This article was first published by Progressive International.

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DRC: Bring Patrice Lumumba Home

The return of Patrice Lumumba’s remains must not be an occasion for Belgium to congratulate itself, but for a full accounting of the colonial violence that led to the assassination and coverup.

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For much of the past year, there have been plans for the sacred human remains of the Democratic Republic of the Congo’s first post-independence prime minister, Patrice Émery Lumumba, to finally be returned to his children in Belgium, and then repatriated to the Congo. Originally scheduled for a ceremony on June 30, 2021, the 61st anniversary of the country’s independence passed with Lumumba’s remains still in the custody of Belgian authorities. The ceremony with Belgian King Philippe, current Prime Minister Alexander de Croo of Belgium, and Congo President Felix Tshisekedi, was then planned for January 17, 2022, the anniversary of the assassination. Last week, Tshisekedi announced another delay—this time until June 2022. The official reason for the delay was the rising number of COVID-19 cases in the Congo, but the pandemic crisis is deeply entangled with a series of other political maneuvers and other crises that are undoubtedly factors in the decision.

At the center of this story, Lumumba’s family continues to be victimized. As Nadeen Shaker recently reported, his children were forced to escape to Cairo during their father’s house arrest, never to see him again. The disturbing fact that the remains of Lumumba spent another Independence Day in Belgium may provide opportunities for metaphor and analogy, but, amid the widespread complicity in this ongoing desecration, the most important outcome must be to respect the ethical and legal claims of his children, which daughter Juliana Lumumba described in an open letter to the Belgian king last year.

The story of the execution and its aftermath is well told by Ludo de Witte in The Assassination of Patrice Lumumba. On January 17, 1961, Lumumba was killed along with comrades Maurice Mpolo and Joseph Okito by Belgian authorities, with the support of neocolonial Kantangan separatists and the US. Two days later, Gerard Soete, Belgian police commissioner of Katanga, and his brother exhumed the body to chemically eradicate all physical evidence of their crime in order to prevent the kind of mobilization which its identification would inspire. Though the execution was kept secret for nearly a month, its announcement inspired exactly what his executioners feared, as African people throughout the world engaged in protest and other revolutionary acts of remembrance—from the well-known demonstration at the United Nations, and other cities throughout the world to a legacy in a visual, musical, and literary culture that continues to this day.

In February 1961, while the Cultural Association of Women of African Heritage organized a major protest at UN headquarters in New York, Lumumba’s widow Pauline Opango Lumumba led a march of family and supporters to the UN offices of Rajeshawar Dayal in Kinshasa. There, she requested that the UN help her receive the remains of her husband for a proper burial. After Ralph Bunche offered “apologies” for the New York protest, Lorraine Hansberry “hasten[ed] publicly to apologize to Mme. Pauline Lumumba and the Congolese people for our Dr. Bunche.” Meanwhile, James M. Lawson of the United African Nationalist Movement and other Black activists organized a wake for Lumumba at Lewis Michaux’s Harlem bookstore. When Pauline died in Kinshasa in 2014, she was still waiting to bury her husband. She, and her iconic demonstration, are memorialized in Brenda Marie Osbey’s poem “On Contemplating the Breasts of Pauline Lumumba,” which is part of a long line of African American efforts to uplift the Lumumba family. The immediacy of Pauline’s demands remains after 6 years.

While Lumumba’s body was dissolved in sulphuric acid, Soete, like the US lynchers of Sam Hose and so many others, kept trophies of his victims as he traveled from the Congo to Belgium, often displaying them for friends and journalists. After Soete died, his daughter Godelieve continued her father’s tradition, culminating in a bizarre 2016 interview, during which a reporter found the remains in her possession. (In her efforts to defend her father, Godelieve further revealed that his brutality was visited upon his children.) The Belgian police intervened and, for the past five years, Lumumba’s remains have been held by the Belgian government responsible for his death. In September 2020, a court finally ruled they should be returned to the family.

These most recent delays are occurring at a time when the ongoing mistreatment of human remains is receiving public attention. The case of the Morton Collection at the University of Pennsylvania led activist Abdul-Aliy Muhammad to uncover the ongoing desecration of the remains of Tree and Delisha Africa, who were killed when the city of Philadelphia bombed their family’s home on May 13, 1985, leading to the discovery that the city held additional remains of the victims of its violence against the MOVE organization.

Since 2005, in South Africa, the Truth and Reconciliation Commission (TRC) created the Missing Persons Task Team to identify the remains of the Black victims of the country’s apartheid era. Drawing on the expertise of researchers with experience in similar initiatives in Argentina and elsewhere, this government project has been deliberate in its efforts to include the families of the missing at all stages, while seeing their work as integral to the larger mission of the TRC, and further representative of a larger model of repatriation of human remains and possessions. As different as these cases of violence may be, government sanction—at multiple levels and taking different forms—remains constant.

In an October 2021 program hosted by Friends of the Congo, Juliana Lumumba explained that for her, as the daughter of a martyr, repatriation and memorialization of her father’s remains were not finite events to be completed like items checked off of a to-do list. Rather, the return must be part of a wider and ongoing process: “I told Belgium, that if we want a reconciliation we need reconciliation of memories because we can not make a reconciliation when our memories [are] so different and so contradictory.” Juliana’s words carry a particular weight at a time when the Special Parliamentary Commission on Belgian Colonial History has received a sharply critical historical report that may or may not lead to meaningful action of the sort that the family has demanded.

Lumumba’s son Guy-Patrice Lumumba opposes Tshisekedi’s efforts to exploit the repatriation for political gain. Tshisekedi himself is familiar with some of the political challenges of memorialization after the remains of his own father, longtime popular opposition leader Etienne Tshisekdi, spent more than two years in Europe before their return in 2019 after Felix’s election. Felix is quickly losing whatever claim he had on his own father’s mantle (see Bob Elvis’s song “Lettre à Ya Tshitshi for a recent indictment of the president’s abandonment of his father’s mantle). He may find value in an association with a revered nationalist icon amid political protests from opponents concerned about his overreaching efforts to control the country’s powerful electoral commission as the 2023 election cycle approaches.

Meanwhile, the younger Tshisekedi’s international standing has been consolidated through his position as head of the African Union, where his responsibilities include negotiating for the provision of COVID-19 vaccines for member states. He recently met with President Biden and made an official visit to Israel, the latter of particular concern given its historical involvement in mercenary efforts against pro-Lumumba rebels and its ongoing role in the plunder of the Congo’s resources (to say nothing of Tshisekedi’s support for Israel’s occupation of Jerusalem and its status as an observer at the African Union). Such actions highlight the extraordinary distance between Lumumba’s legacy and Tshisekedi’s leadership.

For decades, the Lumumba family has made a series of unanswered demands through formal inquiries and legal appeals. A group of scholars and activists have also asserted the return of Lumumba’s remains must not be an occasion for Belgium to congratulate itself, but rather an opportunity for a full accounting of the colonial violence that led to the assassination and its subsequent coverup.

Hopefully soon, Lumumba’s family can mourn on their own terms and have all of their demands for justice met immediately and without equivocation.

This post is from a partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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