Professor Thuli Madonsela’s bold call on 12 October 2020 for consideration to be given to extending an amnesty to some of those caught up in State Capture corruption was bound to provoke a range of reactions. Predictably, this already includes some indignation at the mere suggestion of an amnesty. Less predictable was the dismissive response (sadly, in somewhat intemperate language) from such a respected political analyst as Richard Calland.

Perhaps (as Calland complains and as Madonsela subsequently acknowledged in an interview with Jeremy Maggs) the timing of the call was unfortunate and perhaps her call might have been more carefully phrased. But my hope is that these criticisms will not deflect attention away from the important discussion that she has initiated.

There are encouraging signs that the Hawks and the NPA – and indeed all other agencies who should be involved (the SIU, SARS, the Office of the Public Protector and the Office of the Auditor-General come to mind) – are finally displaying some appetite for the immense task ahead. But it is beyond dispute that they – each and collectively – lack both the expertise and capacity to investigate and hold accountable a meaningful number of the many persons criminally involved in this desperately sad chapter of our young democracy. That is why it is so important that we take seriously Madonsela’s call and explore the possibility that a well-crafted amnesty, overseen by a suitably resourced agency, might provide an effective and sufficient way to ensure that a much larger number of offenders are made to account for their corrupt behaviour.

In the hope that this will contribute to a proper discussion of the merits and demerits of a state capture amnesty, what it might entrail and how it might be implemented, I offer these thoughts.

The intended beneficiaries of the amnesty

The amnesty should extend to anyone and everyone willing to comply with the terms of the amnesty other than those persons against whom an investigation or other proceedings has already been initiated by one of the relevant agencies. These agencies would include the Hawks, the NPA, the SIU, the Public Protector, the Auditor-General, the Companies and Intellectual Property Commission, the Independent Police Investigative Directorate and SARS. Companies and other entities would also be entitled to apply for and receive the amnesty.

The application process

To initiate the process, an applicant should be required to submit a confidential application for indemnity in one of four categories by confirming his/her/its willingness to:

1. Make a comprehensive and public disclosure, on oath, of the role he/she played in State Capture corruption, including any gratification (financial or otherwise) received or paid, whether directly or indirectly;
2. Pay over to the state all financial benefit received by the applicant as a result of State Capture corruption and in the case of corrupters pay over an amount equal to all bribes and other inducements paid;
3. Resign immediately from all positions of public office (including Parliament and Cabinet), public sector employment (including national, provincial and local government, chapter 9 institutions and state-owned entities), company directorships and other positions of trust;
4. Undertake not to apply for nor accept any appointment or election to public office, public sector employment, company directorships or other positions of trust for a specified period. The length of the period would be determined by the categorisation of the corruption;
5. Undertake not to participate in any way in any public procurement process for a period of (say) 10 years;
6. Undertake to give truthful evidence in support of any criminal, civil or administrative proceedings arising from or in any way related to State Capture corruption;
7. Complete an approved programme of rehabilitation within (say) 12 months of submitting the application for amnesty; and
8. Acknowledge the consequences if his/her conduct should result in the forfeiture of the benefits of the amnesty. (I suggest some of these consequences later in this piece.)

The agency entrusted with overseeing the amnesty process (which I will refer to as the Secretariat) should be required within (say) 30 days to ascertain from the relevant agencies whether any of them have started an investigation or other proceedings against the applicant. If so, the confidential application will be refused. If not, the applicant will be invited to submit his/her formal amnesty application, including the sworn disclosure, within (say) 30 days.

The opportunity to apply for amnesty should be for a limited period of (say) six months from the date of its announcement. During this period, the work of the relevant agencies would continue as normal.

The terms of the amnesty

On lodging the formal application, the applicant would immediately and automatically enjoy indefinite immunity from prosecution for offences disclosed in the sworn disclosure. They would be exempt from any civil liability arising directly from those offences. And the applicant would be exempt from any liability for tax that might otherwise exist and individual applicants would be entitled to retain any rights to a state pension. The amnesty would not protect the successful applicant against proceedings brought to terminate their membership of a professional or similar organisation on the basis of the offences disclosed in the sworn disclosure.

Categories of amnesty

Category 1 should apply to any beneficiary of the amnesty whose corruption was limited to giving or acting on the instructions of a person in authority, in circumstances where the beneficiary knew or suspected or should have realized that the instruction was given corruptly.

Category 2 should apply to any beneficiary who corruptly received or gave bribes or other financial inducements worth in aggregate less than (say) R10,000.

Category 3 should apply to any beneficiary who corruptly received or gave bribes or other financial inducements worth in aggregate between (say) R10,000 and R1-million.

Category 4 should apply to any beneficiary who corruptly received or gave bribes or other financial inducements worth in aggregate more than R1-million.

Loss of the benefits of the amnesty

In certain circumstances, a beneficiary of the amnesty process would immediately and automatically forfeit all of the immunities and exemptions extended in terms of the amnesty. These circumstances would include:

1.  A finding by any recognised tribunal that the sworn disclosure submitted as part of the amnesty application was false or incomplete or misleading to a material degree;
2. The rejection of the beneficiary’s testimony as untruthful or unreliable in any criminal, civil or administrative proceedings arising from or in any way related to state capture corruption; and
3. Any breach of the undertakings made in the formal amnesty application.

Consequences of the forfeiture of the benefits of the amnesty

As part of their formal application for amnesty, an applicant would have acknowledged that the consequences of conduct resulting in the forfeiture of the benefits of the amnesty would include:

1.  Liability for prosecution for the State Capture corruption, including the offences disclosed in the applicant’s sworn disclosure;
2.  Liability for civil claims and administrative penalties arising from State Capture corruption, including the offences disclosed in the applicant’s sworn disclosure;
3. Liability for any taxes payable as a result of State Capture corruption, including the offences disclosed in the applicant’s sworn disclosure;
4. The admissibility of the applicant’s sworn disclosure as evidence against them in any criminal, civil or administrative proceedings arising from or in any way related to State Capture corruption;
5. Forfeiture of all rights to a state pension in the case of individuals;
6. A permanent prohibition against holding public office, public service employment, company directorships or any position of trust; and
7. A permanent prohibition against participating or benefitting in any way from any public procurement process.

Implementation

In his interview with Madonsela, Maggs pointedly questioned whether capacity exists for the type of amnesty process that she envisaged. It is a legitimate concern and I would go so far as to say that there would be absolutely no point in having any type of amnesty for State Capture corruption unless its implementation is entrusted to an appropriately resourced and independent Secretariat. As Calland points out, the TRC amnesty was not a success. Two reasons for this are that those given amnesty actually got off “scot-free” and almost none of those who were denied the amnesty or chose not to seek the amnesty faced any consequences.

I don’t intend to use this opportunity to outline my thoughts on the role of the Secretariat and how it should be established, structured and funded (I would be happy to share these thoughts with anyone who might be interested.) Suffice it to say here that the Secretariat would need to be demonstrably free from political interference, headed by eminent persons of integrity, staffed by competent professionals and funded as far as possible by public subscription and the money recovered in terms of the amnesty.

Two months ago the ANC’s National Executive Committee called on Cabinet to establish an independent body to “deal with” corruption. If Cabinet acted promptly to create such a body, it would make perfect sense to add oversight of the amnesty process to its responsibilities.

What would the envisaged amnesty achieve?

A well-crafted and appropriately implemented amnesty for State Capture corruption would bring at least the following 10 benefits:

1. The Hawks, NPA and other relevant agencies would be able to concentrate their limited resources on the cases already under investigation and on those miscreants who do not apply for the amnesty;
2. The relevant agencies (and others) would have additional evidence against some, probably many, of those who chose not to apply for the amnesty;
3. A significant amount of corruptly received and paid money that would otherwise be lost will be paid into the state coffers;
4. Beneficiaries of the amnesty would not be getting off “scot free”;
5. The number of State Capture miscreants who do get away “scot-free” would be reduced;
6. The opportunity to misuse public office or employment in the public sector for personal gain would be reduced;
7. Those who apply for and honour the terms of the amnesty would be given the chance to rehabilitate themselves and be reintegrated into society;
8. Many corrupted individuals would be removed from public office, public sector employment and boards of directors for a lengthy period of time;
9. A permanent public record of those who benefited from the amnesty and their roles in State Capture corruption would be established and a bright light shone on all those who are named in in the sworn disclosures, including those who chose not to apply for the amnesty; and
10. The sworn disclosures of beneficiaries would make it much easier to prosecute and punish those beneficiaries who subsequently forfeit the benefits of the indemnity.

I do not suggest that an amnesty along these lines is what Madonsela had in mind. Nor do I suggest that these thoughts provide anything resembling a comprehensive blueprint. My hope is that these thoughts may help to initiate a constructive discussion on the contribution which an amnesty could make to the efforts to counter State Capture corruption. DM