Opinionista Ismail Lagardien 3 October 2017

An Ethical Inquiry into State and Society: The greatest of improbabilities

South Africa could find a way to stem the rot through a legal and ethical inquiry, but don’t hold your breath it will ever happen.

There has to be a legal and ethical way to address the web of cronyism, corruption, maladministration and graft that have become defining features of South African society. It has to be done without seeming like purges, without vengefulness or populist vituperation, but through a genuine attempt at rooting out corruption and unethical behaviour – including that which is concealed beneath layers of legalese. One way of doing this would be to establish an Ethical Inquiry into State and Society. Common sense suggests that it may be possible, but it may well be the greatest of improbabilities in the country today.

In the past South Africans have managed to pull together the most influential leaders at Codesa. The Truth and Reconciliation Commission brought together victims and villains. There should be no reason, at least in theory, why there cannot be a call for an Ethical Inquiry into State and Society. The problem is, of course, that too many people have too many “smalanyana skeletons” and others hide behind legalese, and have been sanctified, as it were, by that most odious and, indeed, violent of passages, wilful forgetting and paramnesia. The latter can be seen in the retort, “Apartheid ended a long time ago, let’s forget and move on.”

At least three main things may prevent it from being done. One is the lack of political will. Second is the fact that Parliament and almost every state office are loaded with legislators or public servants with factional fealties, and who would, necessarily, prevent the passing of requisite laws. As the old English idiom goes: “Turkeys don’t vote for Christmas.” Finally, given that there will necessarily be massive fallout, South Africa may be pushed over the precipice…. And nobody wants that.

So, there are two things that may be discussed. Let’s start with the legal means. There is a law in the United States, The  Racketeer Influenced and Corrupt Organisations  Act, colloquially known as the RICO Act, which can be used as a guide. At the minimum, the RICO Act stipulates that “it is unlawful for anyone employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt”. An enterprise is defined as “including any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity” (This would include anyone from a family to a public enterprise.)

More broadly, in order to be found guilty the government must prove beyond a reasonable doubt, first, that an enterprise existed. Second, it must be proven that the enterprise affected domestic commerce; third that the defendant was associated with or employed by the enterprise; fourth that the defendant engaged in a pattern of racketeering activity, and finally, that the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity through the commission of at least two acts of racketeering activity as set forth in the indictment.

Somewhat similar laws or agencies with similar power have been created to enforce corruption and bribery in Mexico, while New Zealand and Australia have laws and agencies that have echoes of the RICO Act. In Canada the  Office of the Superintendent of Financial Institutions  has powers that are similar to the Rico Act, and in Jamaica, the Major Organised Crime and Anti-Corruption Agency (MOCA) was established in 2012, specifically to combat organised financial crimes and bribery. Let’s stay with the RICO Act, if only for ease of reading, but stay away from Hollywood interpretations.

The RICO Act is contentious in most serious ways. A few contentious issues can be highlighted. One has to do with the issue of fairness. The RICO Act is considered to be so vague that some prosecutors in the US applied it selectively and arbitrarily.

The RICO Act has, also, become a weapon” that “subverts liberty and the true purpose of law”. Whereas laws were once directed at considered wrongs, in and of themselves (malum in se), which included murder, rape and so forth, a multiplicity of laws (like the RICO Act) have criminalised conduct undertaken without any culpable intent. This is conduct that is considered wrong, not for being intrinsically wrong, but it because it is a prohibited wrong (malum prohibitum).

It is worth bearing in mind that the RICO Act (Title IX of the Organised Crime Control Act of 1970) was passed in the US at a time when society was shocked by masses of evidence of widespread organised crime, racketeering and corruption, all of which was described in the 1960s as “a cancer in our streets”. I make this specific point because corruption and organised crime have been raised in South Africa in similar terms.

Anyway, while the intent of the Rico Act may have been somewhat noble, its language and the judicial zeal with which it was enforced resulted in wrongful prosecutions or persecution. At the time, prosecutors acted on the basis of widespread fear across society, and applied the law widely and beyond the broadest boundaries permitted by the statutory language. In doing so they defeated the congressional intent and raised constitutional questions. A last example, and there are many, is that in the US the RICO Act has been applied selectively, with a racial bias against criminal street and prison gangs.

With all of that said, South Africa has some fine legal minds – I certainly am no authority on these matters – so the legal means can be found. We may start with something similar to the Civil Investigative Demand of Code 96 of the RICO Act in terms of which the Minister of Justice or the Public Prosecutor may issue, in writing, a civil investigative demand requiring any person to produce material for examination.

Let us suppose we can get as far as bringing the accused or the suspects together. How will it actually work? Here we can draw on the example of the Maxi Trial of Italy – the largest organised criminal trial in history which, in December 1987, handed down guilty verdicts against 338 of about 452 defendants accused of running a vast criminal empire. The Maxi Trial demonstrated, to the public, that the state was committed to eradicating organised crime that ate away at the social fabric of the country, and that hollowed out the Italian state – something which I wrote about in this space more than two years ago.

To host the Maxi Trial, the government spent an estimated $90-million (between 1986 and 1992) on the trial, including about $18-million to build the massive courtroom, closely resembling a bunker, with the accused in compartments at the back of the room, plus the cost of maintaining a small army of 3,500 policemen to protect the proceedings.

Back, then, to South Africa today. There are, almost every week, revelations and accusations of corruption, graft, networks of cronyism and maladministration, money laundering and even extrajudicial killings across the country. Implicated in all this are elected officials, public servants, heads of corporations and of public agencies, and families who have parasitic relationships with the ruling party. These are all the actors that would, under normal circumstance, be fundamental to the success of an Ethical Inquiry Into State and Society. It is possible to hold such an inquiry, but on the balance of probabilities – given especially that it would have to be initiated by the Minister of Justice and/or the Public Prosecutor and eventually brought into law by Parliament, there is little chance of it ever happening. DM


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