Should amnesty for looters be 'one size fits all'?

“Amnesty” is a controversial word in South Africa. Perpetrators of apartheid violence who revealed the truth of their brutality received amnesty from the Truth and Reconciliation Commission (TRC), which was part of the compromised settlement that some view as the foundation for our entrenched racial inequality.

Those whom the TRC denied amnesty and recommended be investigated for prosecution, such as Chris Hani’s killers and about 300 others, effectively received amnesty when the executive pressured the National Prosecuting Authority to leave the past in the past and the families of murdered activists in the lurch.

For the families of the dead, the word amnesty is at best a begrudged sacrifice and at worst a betrayal of everything their relatives died for. 

Amnesty was also proposed for those accused of State Capture, as it seems to be in every instance of mass crime that the state can’t handle, that might be too divisive and costly.

This time the idea was to waive prosecutions against those who came forward, admitted to their crimes and paid back the loot. Proponents of State Capture amnesty argued it would help avoid lengthy and potentially unsuccessful criminal trials while providing for accountability and recovering much-needed cash.

“It’s appealing in its simplicity, but ultimately flawed in logic,” came the reply from Open Secrets’ Hennie van Vuuren, one of the few who has continued to investigate apartheid corruption and its links to current graft.

The South African Council of Churches (SACC), raised the issue of amnesty on Thursday, suggesting the state give looters involved in the unrest in KwaZulu-Natal and Gauteng one or two weeks’ grace to return stolen goods and avoid prosecution.

By Thursday, police had made 1,478 arrests in KwaZulu-Natal and 725 in Gauteng in relation to the violence that erupted last week.

The chaos was allegedly orchestrated by a network of individuals allied to former president Jacob Zuma who have the most to lose now the political winds (therefore the state purse strings) have shifted in the ANC and law enforcement agencies have adopted a veneer of credibility on pursuing corruption.

Those agitators lit a match and threw it on the pyre. The official unemployment rate is 32.6% overall and 46.3% among 15-to-34-year-olds. It’s worse when you consider those who have given up looking for work.

Before the coronavirus pandemic, about half of the population lived below the upper-bound poverty line of R1,227 per month. Poverty has almost certainly worsened in the past year and the Nids-Cram survey reflects dire levels of hunger, including, most worryingly, child hunger.

The government cancelled the R350 Covid-19 relief grant that about six million people claimed before the third wave of the pandemic hit, cutting off a lifeline for those on the brink of survival. 

Political agitators might have sparked the recent violence and there’s little doubt that professional criminals seized on the opportunity, but the crowds that descended on the malls were made up of people in need.

In the worst economic downturn since the Great Depression, families are literally starving; starving and angry that the fruits of democracy remain reserved for so few.

Some might be living in relative poverty and were driven by adrenalin to join the mob and score some freebies. Others saw a chance at survival, trying to get nappies and formula, groceries to feed their families and clothes to replace those the kids have outgrown. Reportedly, many kids were involved.

Surely, the desperate who are struggling to survive should not be lumped with prosecution and a potential criminal record, perhaps prison time, if they return their stolen loot? Such “justice” in a patently unjust society that forced people into scavenging for basic necessities appears unfair.

The SACC said its amnesty call was based on values of reconciliation, restoration and Ubuntu-Botho. It admitted a large uptake in such amnesty applications would be unlikely, but it said some communities are already considering adopting the idea. 

“When one has participated in wrongdoing, one is to be encouraged to make amends and take on a new path and that is a part of the person’s healing,” said SACC General Secretary Bishop Malusi Mpumlwana on Thursday.

But how would amnesty work?

Some looters loaded TVs and large appliances into their cars. ATMs were bombed and whole warehouses looted. Arson was often involved. At least 117 people died in the unrest.

How would one differentiate between hardcore acts of criminality during the looting and petty theft? If someone returns groceries, can the police check whether they have more loot at home or were involved in arson before granting amnesty? Do wealthy looters, those seen loading loot into their luxury vehicles, also receive amnesty? 

In an ideal world, amnesty wouldn’t be a consideration. The justice system would take these issues into account and fairness would prevail. At each step, the police, prosecutors and courts would consider the country’s socioeconomic state and an accused person’s position and alleged crimes within that context, perhaps being more lenient on the mother who took nappies and the boy who just wanted another outfit.

We don’t live in an ideal world. We live in a country that to many feels unjust, where the poor and vulnerable are most likely to shoulder the consequences of unrest. In my experience, police arrest the easy targets at protests while the most violent escape accountability.

Granting amnesty to those who return their loot could see some professional criminals and some of the most violent offenders evade justice. Others who could afford to buy the goods they stole might also get off the hook.

Introducing amnesty risks furthering the pervasive culture of impunity, which some believe started in 1994 when the country rejected the Nuremberg route and instead opted to let killers and victims live together, as long as the killers told the truth.

Offering some sort of amnesty, whether it’s the SACC’s recommendation or in another form, might see some criminals who should do jail time go free. 

But the hardened criminals who have police connections and those involved in the anarchy who can afford lawyers were always unlikely to face the full might of the law.

If the question of amnesty comes down to allowing desperate looters to evade prosecution while some serious offenders fall through the cracks, it should be granted. It would allow and put pressure on the SAPS and the NPA to prioritise the instigators of violence and those who committed serious crimes during the attacks.

At the same time, we must ask, when will the repeated calls for amnesty end and when can justice finally begin? DM