Various divergent voices have recently called for a truth commission-style
process to deal with the arms deal and those implicated of criminality and
corruption in it. The idea has a decidedly old ring about it; nevertheless, it
should sound an alarm bell to those concerned about justice and that constantly
undermined, yet increasingly relevant, concept of accountability.
During the 1990s, SA's negotiations process nearly floundered on the issue of
whether a blanket amnesty, on the one hand, or full-scale Nuremberg-type trials,
on the other, was the most appropriate fate for those people of the apartheid
state and its opponents who violated human rights in the struggle for
democracy.
The negotiated compromise, which was subsequently enacted, was the establishment
of the Truth and Reconciliation Commission (TRC), with an amnesty process. Its
premise was that SA had undergone the trauma of a brutal struggle for power and
justice and that, as a result, the national imperative of reconciliation
required the exceptional suspension of the criminal justice system, provided
perpetrators displayed "knowledge and acknowledgement" of the criminal deeds for
which they would otherwise be punished to the limits of the law. The process
proved to be controversial and flawed and remains, more than a decade later,
uncompleted.
In its own terms and time the TRC was, in many ways, distinct an instrument of
something that became known as "transitional justice", to allow our new
democracy to take root without the poisonous weeds of the past overwhelming it.
The question we now face is should this exceptional amnesty process, one rooted
in the struggles of the past, be used today, to cleanse away the crime and
corruption allegedly committed by post-apartheid, democratically elected and,
supposedly, publicly accountable politicians? Or should those politicians be
held to the high standard of accountability enshrined in the very constitutional
order they swore to uphold?
There is every reason to believe the public would choose the latter; and the
politicians, the former.
Some see an "arms deal TRC" as a new gold ring of happiness for the country. For
Jacob Zuma, it would obviate the need for his looming trial in August, and the
likely prospect that he would be in the criminal dock during next year's general
election. Even for the African National Congress (ANC) with its hitherto
splendid disregard for normal standards of probity the idea that it would
burden SA with the spectacle of a man alternating between being an accused
criminal and a presidential candidate seems a stretch.
For President Thabo Mbeki, as well as his detractors, there would be benefits.
For his ever-growing circle of enemies, a confessional on the murky background,
not to mention backhanders, apparently involved in the deal, would place Mbeki
in the main frame of any (local or international) investigation, locating
culpability where the Zuma-ites believe it truly belongs. For Mbeki himself,
answering all those unanswered questions might well be the only way to cleanse
the public mind of the doubt that surrounds his actions.
Increasingly, the business community in SA seems seized with the idea. They
argue it would tie up a messy situation, without the indignity (and possible
economic downside) of a series of high-profile criminal trials. Some in the
media have joined the chorus, arguing that an arms deal TRC would serve as a
sort of all-purpose River Ganges, washing away sins but retaining the element of
acknowledgement. As a Sunday Times editorial recently put it: "We can afford to
pardon the sins of those tempted by arms dealers, but only if we can, in so
doing, wipe the slate clean. The only way to close the book on the arms deal is
to know what's in it."
Yet, for all the bluster and good intentions, in a crime-ravaged country that is
teetering on a moral abyss, the idea that we suspend the public's constitutional
right to justice is a truly remarkable and alarming concept; and the underlying
logic is fundamentally flawed.
The arms deal was not a fight for justice. It was a political decision taken by
a democratically elected government a decision for which it is accountable. In
that the quality of the decision was dubious and its subsequent processes were
abused by those self-same politicians often for purposes of self-enrichment
it simply cannot be equated with a struggle for democracy.
Perhaps more disturbing still is this implication that if a problem is big
enough, and if the ANC government is stubborn enough, then our criminal justice
system and every other institution dedicated to accountability and oversight
should simply be bypassed to accommodate the ruling party's inflated and
undemocratic sense of its own invulnerability.
In short, if the ANC commits corruption on a big enough scale, all it needs to
do is to admit it, and everything will be forgiven.
Perhaps most bizarrely, one might well ask, "Why stop at the arms deal?"
As the same editorial points out, the R38bn spent on the procurement package
pales in comparison to the amount the state is now forced to spend on upgrading
our electricity infrastructure.
After years of neglect and maladministration Eskom CEO Jacob Maroga has
estimated that the power utility is going to spend R1,3-trillion on new capacity
up to 2025 should we also have a TRC for Eskom?
As dubious as the suggestion of a new TRC process is, the extent of the
corruption in the arms deal is nowhere near known, and that was just a R38bn
package. Imagine the number of deals that will have to be struck and contracts
signed to properly utilise R1,3-trillion? Those too will be open to corruption
and maladministration.
Is the message we want to send the public (and those who misused their position
in the arms deal) that if things get really bad, just confess and all will be
forgiven?
When all is said done, what this suggestion boils down to is a compromise. In
the battle between the pursuit of justice and the ANC's refusal to be held to
account, the ANC has won and those who advocated a TRC process have effectively
said they are willing to forgo their constitutional right to justice. In fact,
they will do whatever it takes just so that they can know how public money was
abused.
Every public representative has a contract with the people who elected them.
Every single South African has a right to proper and professional service. When
that is not forthcoming or when state resources are abused, they have a right to
recourse, to justice.
At the same time, every single public representative should act both
professionally and in a principled manner. When they don't, the public has a
right and their superiors a duty to hold them to account and to bring the
consequences to bear.
The proper and correct way to deal with the arms
deal and, indeed, the only way which is consistent with the values of our
constitution, is to set up a judicial commission of
inquiry. It is true that such a commission has been opposed by the ANC in
the past by the likes of Alec Erwin and Frene Ginwala, but it remains
the best way *1 to deal with the
criminal culpability of those implicated.
That is what the rule of law is really all about. It is not an optional extra
that you apply to the general population, and exempt from its provisions the
politically significant elite. On such a rotten foundation you invite contempt,
not respect, for the law itself.
Leon is a Democratic Alliance MP and a former leader of the opposition. Van
Onselen is director of DA special projects.
With acknowledgements to Tony Leon, Gareth van Onselen
and Business
Day.
But the sad reality is that an amnesty with disclosure is
better than nothing at all.