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No, Mr Zuma, there should be no immunity from prosecution for former presidents and dictators


Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

Jacob Zuma does not see the institutional monstrosity of allowing elected leaders to do as they wish without any form of accountability. This is misleading and extremely dangerous for a continent like Africa – a hotspot for imperial presidents and dictatorial demigod leaders.

The world is replete with cases of political leaders and government officials who have been accused of embezzlement, and illicitly amassing wealth through corrupt activities. Paul Hoffman, in a recent article in Daily Maverick, called for the establishment of an International Anti-Corruption Court (IACC) to decisively deal with modern kleptocrats, who, like the Egyptian pharaohs, “live high on the hog”. Hoffman points to methods such as State Capture used by these kleptocrats.

I agree with Hoffman that corruption “imperils the future of humankind in ways more insidious and continuous than the pandemic”. However, for now, I would like to leave the discussion on the desirability of establishing the IACC for a follow-up opinion, and rather put my focus on the sordid “Zuma Theory of Dictators by Design” advocated by South Africa’s infamous former president, Jacob Zuma. 

According to Zuma, who is himself facing corruption charges, leaders must have blanket immunity from prosecution once they leave office. 

“There are things that we need to get rid of, for example in Africa, this business that a president who had been in office when the other comes in, they persecute the other one, which has led to people wanting to stay in power forever,” said Zuma in episode six of ‘Zooming with Zumas’, a YouTube “reality” show hosted by his ostentatious son Duduzane.

Jacob Zuma does not see the institutional monstrosity of allowing elected leaders to do as they wish without any form of accountability. A view like the one expressed by Zuma is misleading and extremely dangerous for a continent like Africa, which is a hotspot for imperial presidents and dictatorial demigod leaders. 

As professors Charles Manga Fombada and Enyinna Nwauche write in an article in the 2012 issue of the African Journal of Legal Studies titled ‘Africa’s Imperial Presidents: Immunity, Impunity and Accountability’, many dangers lurk when leaders are not held to account.

“A fundamental tenet of modern constitutionalism and an offshoot of its core principle of constitutional supremacy is that nobody, regardless of his status, is above the law. In fact, constitutionalism proceeds from an assumption of human fallibility, the corrupting influence of power and the need to limit it,” they write. 

“It treats all citizens and government officials from the highest to the lowest as creatures of the law who are bound to obey and act in accordance with the law. A concomitant of this is a personal responsibility for any violations of the law.”

The view of the Zumas is indifferent to the need to combat corruption. It is also indifferent to the reality pointed out by Fombad and Nwauche that “post-colonial Africa was characterised by leaders who had placed themselves above the law”. 

Perhaps the former president – and many of our current public leaders, I must add – must be compelled to follow the work of institutions like Transparency International and South Africa’s own Accountability Now organisation to understand the importance of ethical and accountable leadership. 

The chairperson of Transparency International, Delia Ferreira Rubio, recently opined that “people’s indifference is the best breeding ground for corruption to grow. Only by working together can we hope to end impunity for corruption and the corrupt”.

On second thoughts, perhaps there is merit to the Zuma Theory of Dictators by Design. Unfortunately, I perused the length and breadth of empirical and non-empirical studies on white-collar crime, with no success in coming across meritorious support for this theory. What is clear is that dictators and corrupt government officials never act in the best interests of the people they are leading. Yet, people will always find an excuse to support their criminality. Most of the world’s dictators and corrupt current and former leaders held the same view that they should be absolved from accountability.

The former president of Indonesia, Suharto (1968-1998) was a veteran of the 1945-49 war for independence against the Dutch, who opposed the pro-Chinese policies of President Sukarno. Suharto and his family abused their power for self-enrichment and that of their friends. He profited from kickbacks for state contracts and his family. He was saved from prosecution by poor health. However, his family was ordered to pay back $324-million in embezzled state funds.

Interestingly, most of these dictators and corrupt leaders tend to plead ill-health to avoid prosecution if they do not get immunity. For example, Slobodan Milošević, president of Serbia (1989–97) and of Yugoslavia (1997–2000), was in 2001 arrested on charges of abuse of power and corruption in his country. He was later turned over to the UN war crimes tribunal and tried in 2002 on charges of war crimes in Kosovo, Croatia, and Bosnia. Milošević died in 2006 in prison – it is believed that he manipulated the treatment of his high blood pressure in an attempt to win release on medical grounds.

Alberto Fujimori, president of Peru (1990–2000), is another case of a leader who led without any accountability. It is interesting that the man who ultimately proved to be acutely autocratic and corrupt to the core, in 1992 declared emergency rule to combat corruption and the guerilla movement, Shining Path. Fujimori was in 2009 convicted separately on human rights and bribery charges. Further, he was convicted of wiretapping and embezzlement during the 2000 election. Fujimori is alleged to have illegally accumulated over $600-million in public funds. Like other corrupt leaders of this world, fortune favoured him ultimately as he was in 2017 pardoned for health reasons by President Kuczynski.

Leaders who go into office knowing that they will be untouchables during and after leaving office tend to develop a cult-like status. A typical example is Mobutu Sese Seko, the former president of Zaïre (now the Democratic Republic of the Congo) and the leader of the 1960 army coup against the nationalist government of Patrice Lumumba. He concentrated power in himself, with his leadership characterised by the amassing of a personal fortune through corruption.

There are other tyrants, like Jean-Claude Duvalier, president of Haiti (1971–86), who at the age of 19 was proclaimed president-for-life upon the death of his father, Francois Duvalier. Jean-Claude was an apple that did not fall far from the tree. His regime was no different from his father’s dictatorial, brutal and corrupt rule. He was in 2011 faced with charges of corruption and embezzlement. Jean-Claude Duvalier and his cronies are thought to have amassed between $300-million and $800-million, and also stole part of the $22-million in aid given by the IMF to Haiti in 1980. Perhaps fortunately for him, death by heart attack “saved” him from prosecutorial accountability.

The list of corrupt African leaders who will smile with joy at the Zuma theory, some from their graves, is endless. This roll of dishonour includes dictators like Teodoro Obiang Nguema Mbasogo of Equatorial Guinea, Sani Abacha of Nigeria and Zine Al-Abidine Ben Ali of Tunisia. 

The common law maxim of “the King can do no wrong” has no place in modern democracies. We cannot justify absolute criminal and civil immunity for our leaders, even if they are the most popular of presidents. And we cannot have current and former leaders of a democratic South Africa advocating the institution of imperial presidents and ministers. DM


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