Impunity is pervasive among the political elite. And it goes back to colonial times and apartheid (Graphics: John McCann/M&G)
What of the call that the accused in state capture be granted amnesty? The proposal is merciful — a virtuous quality — but woefully ill thought-out.
It seeks to revive a transitory mechanism, prolonging its use beyond its intended purpose. Rather than simply ease our way through this tense moment, issuing an amnesty hardens our troubled relationship with the law. This is a historic problem, whose roots lie in unequal treatment predicated on illusions of superiority.
Instead of seeking recourse in outdated instruments, we need to entrench the principle of equality and accountability. This will not only free us from the grip of our historical memory but also tackle the immediate problem of impunity, which is our most urgent and ingrained problem.
Impunity is pervasive among the political elite. And, it’s not a recent vice but goes back to the moment of colonial encounter, particularly in the 1700s. The ensuing conquest of native land created what the colonial authority would call the “native problem”. This euphemism masked their real difficulty: how to advance occupation and protect colonial possessions. What the colonial state would introduce as the “law” was the preferred answer to the “native problem”.
And, because of its self-serving nature, the “law” inevitably had a contrasting effect on settlers, on the one hand, and natives, on the other. It advanced and protected colonial gains, while criminalising and subjugating natives. Ownership of natives — slavery — was legalised as private property to provide labour for the colonial economy. In the aftermath of its abolishment in 1834, former slaves were arrested for simply roaming around without any attachment to employment. They were charged with the breach of the Masters and Servants Act.
Natives, in other words, encountered the law as a monstrous edifice built on hypocrisy. Introduced to keep them in servitude, the law never quite applied equally to settlers. They enjoyed near-immunity, especially when their victims were natives. And so the law would remain a marker of colonial duplicity throughout colonialism, successive Union regimes and right into the apartheid order.
Natives were never allowed to forget the colonial conception of the law nor given reprieve from its repressive effect. When the Union government had resolved to deny them franchise after 1910, it simply re-defined them — through the Natives Administration Act of 1927 — into subjects. All natives were decreed “tribesmen” who belonged under some chief in a village that one had never even seen. The Union of South Africa was not for natives to inhabit, they were simply “sojourners” to provide labour.
Soon the natives, or “Bantus” as the official nomenklatura of the time prescribed, realised that compliance with the “law” was effectively complicity in one’s misery. Obedience was self-degradation. Defying the law became the norm in black society. Defiance was a way to affirm one’s humanity. So, people began to build informal houses, especially from the 1940s onwards, when they were barred from urban residence, and others discarded passes that showed whether they had permission to be in the Union.
Seeing the emerging popular disobedience of the “law”, the ANC turned the defiance into a mass protest in 1952, the Defiance Campaign. Still wanting to appear respectable in the eyes of officialdom, the elite leadership of the liberation movement dubbed theirs a protest against “Unjust Laws”. They used facilities reserved for “Europeans” and did not carry passes. The most defiant among them, who took up arms against the apartheid state from 1962, earning the official derision of being called “terrorists”, became heroes in black society. Songs were composed in their honour.
On the defeat of apartheid in 1994, therefore, among the tasks of the emerging state was the construction of new law. Negotiators drew up a social contract — the Constitution — that underpinned equality and human decency as some of the foundational values of the new democratic state. There was to be no place for unequal treatment and impunity. An exception was made for amnesty for the perpetrators of apartheid crimes. This was not done because the rulers-in-waiting had scant regard for accountability. It was meant to aid the transition, spurred by the realisation that the culprits still wielded power to sabotage the march towards democracy. Amnesty was occasioned by the moment to achieve a specific objective.
Once the transition got underway, cultivating popular acceptance for the new laws became a priority. Nelson Mandela paid particular attention to the principle of equality before the law. It is easy in countries born out of a revolution to discard laws in favour of heroic figures. That is why Mandela chose to personally appear in court to answer Louis Luyt’s charge that he had not applied his mind when he authorised an investigation into rugby affairs. Mandela’s advisers pleaded with him not to appear, but simply write an affidavit. He would have none of it. Mandela insisted his appearance in court would demonstrate the principle that none, however heroic, was above the law.
State capture, therefore, marked more than just a lapse in the reconstruction of a new legal order. It heralded the return of the rapacious values of the colonial elite: false sense of superiority and impunity. The political elite were unrestrained in their plunder. And, they had reason to feel emboldened. Law enforcement agencies had been decimated. So emboldened were they that they syphoned funeral monies even for a saintly figure like Mandela; and funds to purchase personal protective equipment to prevent people from dying from Covid-19. Others stole food parcels meant for desperate people who had lost their jobs because of Covid-19 restrictions. In April, as many people in KwaZulu-Natal went without water because of the devastation wrought by floods, some diverted water away from the needy for their own and family use.
State capture was not the result of an occasional, wayward behaviour. It is a manifestation of an ingrained culture of predation and impunity in the political elite. Amnesty will simply feed into their illusions of self-importance, while also adding to the general scepticism about the fairness of the law. The gravity of the vice calls for something equally harsh. Nothing short of full-scale prosecutions will restore us back on our route to entrench the rule of law. Amnesties will simply be a derailment.
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