Green Shoots: Fighting corruption without losing our freedoms

I confess that I have not been following the drama of the live-streamed hearings on TV about the claims made by Lieutenant General Mkhwanazi. For those not in the know, the KwaZulu-Natal police chief made explosive public allegations claiming the existence of a sophisticated criminal syndicate that has allegedly infiltrated law enforcement and intelligence structures in South Africa. The President appointed a commission of enquiry to explore the allegations and Parliament set up an ad hoc committee to do the same. I caught a bit of the testimony of the National Director of Public Prosecutions, Shamila Batohi, the other day and it made me nervous.

The ad hoc committee’s brief is to investigate the veracity, extent and implications of the allegations made in July, including the evidence of collusion between any state officials and criminal syndicates. Governed as it is by parliamentary rules, the committee proceedings enjoy the protection of parliamentary privilege. Members and apparently witnesses too, cannot be sued or held liable for what they say within those proceedings – they are protected from being charged or for damages that might arise from their actions in the committee.  Apparently, this doctrine of parliamentary privilege has its origins in the historical struggles between the English monarchy and Parliament, when parliamentarians fought for the right to speak freely and be protected from arbitrary arrest.  

Advocate Batohi, under oath, was telling the committee about some of the rot in the National Prosecuting Authority, which she runs. She referenced a prosecutor who was currently on suspension and spoke about their alleged corrupt behaviour. She wouldn’t name the person for fear of prejudicing whatever legal processes they were facing. This person would have no right of reply to or defence against her testimony – she would after all have privilege and the advocate did not want to exploit this. I believe her motivation was to safeguard the liberties and rights enshrined in the Constitution and Bill of Rights. The parliamentarians were apoplectic with rage at her impertinence and demanded that she disclose the name. They accused her of being more concerned with protecting her staff than helping them save the nation from the corruption and criminality they were investigating.  I get it, although I really don’t like their theatrics, especially because a few of them are not exactly squeaky clean. The objective of the committee is a noble one, they argue, so how we achieve that objective requires some tough choices, like disregarding the rights of accused people to a fair legal process. Shades of Niccolo Machiavelli. 

In recent surveys, South Africans have declared that they are happy to give up some of their personal liberties if it means that we deal with the problems of crime, corruption, poverty and unemployment. It’s perfectly understandable and something that is not unique to SA. Just look at how so many US citizens accept the orange nonsense that is a direct attack on their individual freedoms, in the belief that their society will be better off. It’s the same in many parts of Europe and we’ve seen how the increasing incidences of military coups de tat in Africa have been greeted by popular approval.

It's dangerous. Batohi is brave when she resists the notion that the end justifies the means. We do not have to embrace dictatorship and the disregard of constitutional rights just because we are so gatvol of the misgovernance and corruption. Once we allow the erosion of the protections our Constitution provides, no matter how noble or desirable our intentions are, we can only end up on the losing side. Because we won’t be able to put the genie we unleash back into the bottle and we will find out how absolute power corrupts absolutely.