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Granting looters amnesty is an insult to victims of apa...

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Granting looters amnesty is an insult to victims of apartheid still awaiting redress — and it defeats the rule of law

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Edwin Naidu writes for the Wits Justice Project (WJP). Based in the Journalism Department of the University of the Witwatersrand, the WJP investigates human rights abuses and miscarriages of justice related to SA’s criminal justice system.

Calls for looters to be given amnesty in a spirit of restorative justice defeats the purpose of the rule of law. It seeks to treat petty crime in the same spirit as we sought to address apartheid atrocities, while many of those families and individuals whose cause was just are still no closer to redress.

As former president Jacob Zuma reluctantly languishes in prison for contempt of court while continuing to contest corruption charges in a long, drawn-out battle, some South Africans view his incarceration as a key moment showing that nobody is above the law. Therefore, the recent call by the South African Council of Churches for amnesty for those arrested for looting in KwaZulu-Natal and Gauteng is sorely misguided. 

The council does not want the South African Police Services to nab those who return their ill-gotten gains, suggesting an amnesty of a week or so for people to bring back goods without being punished. Such a proposal goes against the very ethos of the rule of law. While miracles do happen, it is hard to imagine people returning their ungodly gains. 

One has to argue that no matter how well-meaning the SACC suggestion may be, it is a fact that the courts in South Africa are better equipped to deal with those arrested. Of course, it is well known that the justice system has also been found wanting and the ongoing arrests are going to put pressure on already burdened remand detention centres. So, there needs to be a workable solution towards justice for the afflicted and correction for the wrongdoers, and a clear plan for preventing future crime on this scale. In addition, the “unintelligent intelligence” must be held to account for failing to spot the obvious. 

Anything other than action would undo gains that make the Constitution all supreme. It was, after all, Zuma’s midnight drive to incarceration which gave meaning to the key principle of the rule of law that no person is above the law, following a watershed judgment by the Constitutional Court. 

Despite initial defiance, Zuma did the right thing. South Africans — not the dopey intelligence ministry — were warned of the consequences of putting behind bars the man whose nine-year tenure as president was characterised by controversy. 

Before his imprisonment, the former president called for peace but could not guarantee how his supporters would behave once he took the midnight drive from Nkandla to Eshowe on 8 July 2021. It did not take too long to see how it would unravel. 

This spiralled into a free-for-all beyond what may have been planned, resulting in widespread looting that resulted in some 330 deaths and a trail of destruction, costing the economy an estimated R50-billion.

This also gave rise to community-driven vigilante groups in white and Indian suburbs, such as in Phoenix north of Durban, where at least 20 black passers-by were allegedly killed and appalling assaults were replayed on social media. The law must do its job and ensure they are brought to justice. Flaunting their horrific actions on social media was daft and did little to help. There should be little trouble bringing these callous idiots to justice. The rule of law demands it.

If, as espoused by many, the rule follows from the idea that truth, and therefore law, is based upon fundamental principles which can be discovered, but which cannot be created through an act of will, then one cannot support the call for a conditional amnesty for looters based on values of reconciliation, restoration and ubuntu/botho. 

South Africa has a poor history with restorative justice and amnesty, from apartheid to democracy. According to South African History Online, 73 anti-apartheid activists died in detention between 1963 and 1990. But nobody has been held responsible for any of those deaths.

Ahmed Timol, who was among those, died on 27 October 1971, four days after his arrest at a police roadblock. In 2018, Joao Rodrigues, a former apartheid security branch officer, was charged with Timol’s murder. That case is still making its way through the courts. For many killed during apartheid, justice has been deferred and denied. Their loved ones wait in vain. 

The rule of law must be followed. Amnesty would undo the work of the Constitutional Court announced on 29 June 2021. Despite challenges, the courts are more than equipped to address the individual circumstances of those who break the law. Let us pray that they may continue to do their work without fear or interference. 

SACC General Secretary Bishop Malusi Mpumlwana says when one has participated in wrongdoing, one is to be encouraged to make amends and take on a new path and that this is a part of the person’s healing. But this suggests that people committing crimes in democratic South Africa have more hope of redress than those awaiting remedy for crimes committed under apartheid. 

If and when there is a reopening of the Truth and Reconciliation Commission lists of victims of apartheid, which closed on 14 December 1997, it would, according to non-government organisation Khulumani, ensure that victims of apartheid’s gross violations of human rights are recognised. They would become eligible for reparation and rehabilitation and the injustice of excluding about 80,000 victims would also finally be redressed. 

The SACC should put its proposal to all South Africans, including religious leaders of all faiths, politicians, human rights activists and civil society. We ought to consider how an amnesty would work, particularly against the wrongful perception that the rule of law is broken in South Africa. 

As events have shown, we have a law enforcement triumvirate that is abysmal: a weak police force, uninspiring defence force and unintelligent intelligence, all seemingly incapable of maintaining law and order. 

But for those looters caught, while it is a tiny number proportionate to the total who participated, the judiciary must deal with such perpetrators. Calls for amnesty should not be made lightly: the looting is about stolen goods and crimes that do not necessarily warrant the prospect of restorative justice, particularly when apartheid victims and their families have not been given the same treatment for crimes far worse against them or loved ones.

It would add insult to injury should the scores of looters secure a lenient passage while apartheid victims, for example, the widows of the Cradock Four who were so brutally killed by security forces, do not see justice for their loved ones.

Many perpetrators of apartheid atrocities did not come clean, neither were they held accountable for their actions. The SACC should be raising this instead.

An application for amnesty for looting does not equate to amnesty given to security policemen Dirk Coetzee, David Tshikalange and Almond Nofomela for the 1981 killing of human rights lawyer Griffiths Mxenge. Five former security policemen asked for amnesty for the 1977 death in jail of Black Consciousness leader Steve Biko. 

While the looters should not be let off the hook if they produce the stolen goods, the police should also not criminalise citizens with threats to arrest those without receipts. There are better ways to investigate than bullying, which simply serves to drum up media hype. Those incarcerated should not be in cells with hardened criminals and, based on merit, there should be room for non-custodial arrangements for those found guilty of crimes linked to the looting. 

The rule of law must be followed. Amnesty would undo the work of the Constitutional Court announced on 29 June 2021. Despite challenges, the courts are more than equipped to address the individual circumstances of those who break the law. Let us pray that they may continue to do their work without fear or interference. 

It must be considered that some who looted may be guilty of other serious crimes committed during the looting and might fall through the cracks if justice does not take its course. 

One should also be mindful of the type of precedents that it could set for those convicted of more serious crimes. Does this open the door for rapists, murderers, and other criminals to argue that they too should be allowed to repent and be given another chance at life without serving their sentences? Would they too be within their rights? DM

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  • On point. GG Alcock has correctly pointed out that there is lack of respect for the rule of law and that that, more than anything else, is at the root of the recent riots and looting.
    Prosecute them and confiscate those cars and bakkies – poor my a——s

  • So help me out, how did the looters know where to gather and what shops to raid and which not to raid? Also very strange, why were the vast majority, if not all, of the looters not armed ? I don’t think I saw a weapon amongst the looters. So I am beginning to believe, these people were marshalled and directed, and that they were in fact used as unarmed and helpless cannon fodder, likely to be injured by those defending the malls etc. with the resultant racial outcries. It amazes me that not one Chinese business was attacked, despite the massive range of consumable goods they stock. Given all of the above, the looters, because of their blind following of the organising instigators, still broke the law and must be punished. There can be no amnesty – they must be made to understand that every action solicits an equal reaction when breaking the law.

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