Could amnesty for corrupt individuals help SA start with a clean slate?

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Cape Town – Could a wholesale amnesty for individuals and companies involved in corruption help South Africa combat this scourge that has become entrenched in almost all sectors of society?

This is one of the questions put to an audience who attended a breakfast co-hosted by Investec and non-profit organisation the Social Justice Initiative on Tuesday.

The panellists, which included adv Geoff Budlender, David Lewis from Corruption Watch and Bongiwe Mlangeni, CEO of the SJI, were unanimous in their view that state capture has infiltrated the entire system in South Africa with “enablers” in government departments, state-owned enterprises (SOEs) and the private sector.

Budlender, who has been directly involved in cases against companies implicated in state capture, most notably a report on Trillian Capital with ties to the Gupta family, said in Hong Kong a “bold decision” was taken to deal with corruption.

READ: Business as complicit as state in corruption, says Wierzycka 

The city, which was one of the most corrupt places in the world about four decades ago, established an independent anti-corruption commission – the Independent Commission Against Corruption (ICAC) – in the 1970s with wide investigative powers.

The ICAC, however, decided to draw a line below past corruption and not prosecute transgressors guilty of decades of serious corruption.

“It was part of a broader strategy and corruption has dropped dramatically,” Budlender said.

He stressed that he is in no way suggesting South Africa should follow this approach and that he was merely citing Hong Kong as an example.

“Previously, people were afraid they’d be prosecuted and the ICAC said, okay, we draw a line and we start afresh. It was a wholesale amnesty and a very radical thing to do, but it worked.”

Gaps in the Constitution

Moving on to the Constitution, Corruption Watch’s Lewis said there are “huge gaps” in South Africa’s supreme law.

“In particular the appointments of heads of Chapter 9 institutions, including judges, the Police Commissioner and the National Prosecuting Authority (NPA) need to be looked at, as their appointments solely lie with the President of the country.

“There is a quest to find ways to hold individuals accountable,” Lewis said, adding that the Police and the NPA had been the “first captured” institutions.

READ: Who in SA is watching the watchers? 

Budlender agreed that there are gaps in the Constitution and that institutional arrangements need to be overhauled.

“But is this the moment to address them? This is a very fragile moment to talk about the Constitution,” Budlender said, cautioning that it could have an impact on other freedoms South Africans enjoy under the Constitution. 

“If we open up a discussion about the Constitution and we take away powers from the President, how do we make sure we don’t open up a hornet’s nest?

“We need a time [to discuss Constitutional changes] when the risks are lower. That moment is not now.”

Much-needed change

Touching on the ANC elective conference in December, Lewis expressed doubt that a change in leadership in the ruling party’s top structure will transform the country immediately.

“We’re in for a long period of chronic instability. Never underestimate the instability that could be generated from a possible ANC implosion.” 

The race to succeed President Jacob Zuma as leader of the ANC is perceived to be between Deputy President Cyril Ramaphosa and Nkosazana Dlamini-Zuma, former chairperson of the African Union Commission who also held a number of Cabinet positions previously. 

There are, however, concerns that the elective conference may not go ahead because ANC branches are in disarray. 

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