Amnesty for State Capture perpetrators? It’s time for a Truth and Reparation Commission

Robert Appelbaum, Gavin Rome, Sechaba Mohapi and Ryan Hopkins do a good job of reviving the debate on the question of amnesty for crimes of corruption. Their article, “A bitter pill it is, but there are sound reasons for giving amnesty to alleged State Capture wrongdoers” (Daily Maverick, 27 June 2022) is thorough and timely.

This issue was first raised by the Catholic Bishops’ Conference in 2017 and received harsh criticism. At that time, I wrote a letter to Daily Maverick supporting their call and suggesting a new TRC – a Truth and Reparation Commission.

Since then, we have seen Jacob Zuma go, our journalists have done brilliant work in digging for the truth, and the Zondo Commission has left us in no doubt about how far and deep the corruption extends and how many should be prosecuted.

Undoubtedly, the corruption goes even further into many corners not yet explored. More truths need to be uncovered and way too many need to be prosecuted. As the authors point out, the “prosecute them all” route is “plainly ineffective”.

The question that stands out for me is: If an amnesty process is to be established, who will institute this? 

If the ANC were to call for it, South African citizens could be forgiven for laughing. It would look simply like a scheme to let themselves off the hook. 

Ironically, the opposition parties are the ones that should be demanding it, despite the fact that this may seem to go against their attempts to bring down the ANC. This is their opportunity to show that they are more interested in seeing that our country is not broken than they are in breaking the ANC.

In any event, it would need a great deal of buy-in from civil society as a whole. People will need to understand the advantages.

A TRC of the kind, I have suggested – coupled with the detailed amnesty process that the authors have proposed – has much to recommend. 

It offers a broader reach beyond the villainous “generals”, to the foot soldiers, some of whom are, perhaps, redeemable. It would serve to prevent the Stalingrad defences that we have seen in so many cases and save the taxpayers a good deal of money in lawyers’ fees.

Perhaps most importantly, it would offer a voice to those who were victims of corruption. Yes, we all were, but some – especially whistle-blowers – suffered more directly and deserve a hearing that the courts may never offer them.

Finally, it would focus substantially on reparation. This would offer a clearer sense of justice to all.

Such a process can only work if substantial numbers of South Africans and the institutions that represent them can come together to press for this. The inspiration and healing it would offer us all go way beyond any ideas of revenge or justice. It would operate in the best traditions of African law.

Albie Sachs beautifully describes the qualities this traditional law is able to bring to our judicial processes.

“As society evolves, so must the rules and mechanisms for defending those [core constitutional] values develop. In the case of traditional law, what needs to endure are the deep principles of social respect, coupled with the all-embracing processes involving listening and hearing, allied to the profound notions of restitution, of reintegration of defaulters and delinquents into the community, of attempting always to restore equilibrium, and based on the pervasive philosophy that something capable of improvement can be found in every human being.”

This is not something that our current system of justice is likely to offer us. A Truth and Reparation Commission could do this. The full force of the judicial system can then be brought to bear on those who fail the amnesty process or exploit it.

In this last respect, the first TRC failed us. We must not let that happen again. DM