Dear Corruption Watch
I have read that the National Prosecuting Authority has decided to withdraw the charges against the accused in the Amigos case, including two high-profile politicians. It seems that if you are politically connected, you are immune from prosecution for corruption. What can be done to prevent corruption if our prosecutors just protect the powerful? – No more impunity
Dear Impunity
While we are all equal in the eyes of the law, it does seem that well-connected public officials are more easily able to avoid prosecution than the rest of us.
When political position allows public officials to avoid being liable for their actions, there is a real threat to democracy. It also creates incentives for corruption, since those who are considering putting their fingers in the cookie jar are more likely to do so if they believe that they won’t be held accountable even if they are caught.
There are several ways in which concerned citizens can try and prevent this from happening. First, public pressure through activism and the media can sometimes spur the National Prosecuting Authority (NPA) into action.
Second, in the longer term, democracy itself is meant to provide a safeguard against a culture of impunity. When our public officials rob us blind and get away with it, we are able to punish them through the ballot box by voting them out of power.
Third, there are enforcement agencies other than the NPA, such as the Public Protector and the Auditor General, who receive complaints and may investigate allegations of corruption.
Finally, the Supreme Court of Appeal has recently confirmed that a decision to discontinue a prosecution is reviewable – in other words, it can be challenged in court.
The Democratic Alliance (DA) asked the court to set aside the NPA’s decision to withdraw corruption charges against President Zuma. The NPA argued that the courts do not have the power to review decisions not to prosecute. It also argued that the DA did not have standing to bring the case because its rights had not been affected by the decision.
The SCA found that every exercise of public power, including by the Director of Public Prosecutions, must be consistent with the Constitution. A decision to prosecute which has the effect of granting a politically powerful individual immunity from prosecution would violate the rule of law, because it means that the law is not applied impartially and equally to all citizens.
In addition, the rule of law requires that every exercise of public power be rational. This means that the exercise of the power must be rationally related to a legitimate government objective.
The SCA found as follows: “In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.”
While it did not rule on the merits of the review, the SCA found that a decision to refuse to prosecute may be challenged in court, and that a political party such as the DA had the necessary standing to bring such a case.
In our view, similar reasoning would apply to civil society organisations who litigate in the public interest.
It follows that you are not powerless. There are things you can do: be politically active, join a political party or civil society initiative, and make sure your voice is heard.
Take a stand and report an incident of corruption. This article originally appeared in the Sunday Times Business Times on 21 October 2012.
Excerpt
While we are all equal in the eyes of the law, it does seem that well-connected public officials are more easily able to avoid prosecution than the rest of us. Feel powerless? Read this to find out how you can make a difference!
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