Pardon the bad guys??

There’s no joy in proposing that  leaders who have done great harm should be pardoned for their crimes — but this question now is on the agenda in both South Africa and the USA, two countries which are especially close to my heart. In the USA, the question may feel premature.  But, as two pieces linked below signal, the question of amnesty/pardon is a burning one in contemporary South Africa (though thoughtful conversation largely remains under the surface). I write this piece in the hope that it can spur further open discussion —  one which is mindful of the huge risks of getting this wrong.

The case against pardon is  obvious. Viscerally, no one wants the perpretrators of the great social evil of conspiring to destroy  open, rule-of-law polities (even if  as a ‘by-product’ of more narrowly criminal intent)  to get away with their crimes.  The vast majority of us  surely would  prefer that they  get their just desserts. Considered structurally, none of us committed to a just society could possibly enthuse about setting a precedent that traffickers in grand corruption will subsequently receive amnesty for their crimes. The piece by Richard Poplak, linked here, captures nicely the spirit of moral outrage evoked by a trial balloon floated in South Africa a few weeks ago that Jacob Zuma not only should be pardoned, but should be paid R2 billion (about $150 million) for going quietly. [Though I should note that, on a fourth reading, Poplak’s own view as to what should be done is more ambiguous than the piece’s tone suggests……].

But is:  “the bad guys go to jail, and everyone else lives happily ever after” really the only (or even the most likely) version of what happens in the face of a commitment to proceed with prosecution following a putative transfer of power?  In a powerful piece, South Africa’s Jonny Steinberg describes what a political fight to the finish could look like. Here is a flavor (the full piece is behind a paywall). He imagines ” a new and explosive eruption at universities or service delivery protests pouring from the urban periphery into the city centres…. creating the impression of a grave threat to order requiring stern action. A state of emergency is declared….. In the febrile atmosphere that follows, three of four key figures are assassinated by unknown gunmen…..It does not take rocket science to manufacture disorder or to exercise violence from a distance.”

Steinberg is clear as to  the point of his “imaginary exercise: If there is to be a transfer of power in South Africa, those who are going to lose need to know that their defeat is bearable. They need to know that they will not go to jail or be permanently disgraced. They need to know that those who succeed them will govern with a generous hand. This may be hard to stomach. But those who have mismanaged the country have the power to destroy it. And they will if they are given the incentive to do so.”

I agree.

Both South Africa and the United States have been there before.  Gerald Ford’s pardoning of Richard Nixon in 1974 may have felt morally unsatisfying  but it helped provided a platform for 40+ years of social peace and progress.   South Africa’s political transition from apartheid was orders of magnitude more astonishing — and here, too, a commitment to mostly looking forward (including through the instrument of the Truth and Reconciliation Commission) was crucial in enabling the country to subsequently enjoy a quarter century of (relative) social peace and democratic learning and consolidation. In both cases, of course, deep-seated challenges remain. DT’s America has shown us how far the country continues to fall short of its ideals of “equal justice under the law” for all. And South Africa is only beginning to confront the social-psychological (let alone economic) challenges of building a society in which, to borrow from  Steve Biko, all citizens are ‘not superior, only equal; not inferior, only equal’. But both countries have achieved the astonishing, historically rare feat of constructing constitutional orders in which these challenges can be confronted through open, peaceful contestation.

Once a downward spiral of disaster takes hold, everything is lost.  The overwhelming priority must surely be to  avoid that disaster —  and to do so in a way which provides as fresh as possible a new beginning. Getting there is likely to involve making difficult choices among shades of grey. We urgently need to  weigh the choices in these grey areas, avoiding too-easy polarities.


6 responses

  1. I agree that we must weigh the difficult choices among shades of gray, but we must also be clear about the factors that should be considered in this balance,. And this balancing applies not just to cases of corruption, but also, as South Africa’s apartheid and the US civil war histories, suggest the broader issues of post-conflict transitional justice. So, what are the factors – I offer the following: egregiousness of the crime, leader’s specific level of culpability, capacity of institutions to move forward with or without pardon, and dangers to the stability of the democratic order.

    • Thanks, Larry — a useful list! Life would, of course, be much easier if the third and fourth were not at play. Arguably, they (dare I say) ‘trump’ the others. Here’s a comment on the FB post (from a former UCT colleague, Don Ross) that I found helpful as a way of ‘managing’ the dilemma: ” It’s crucial that amnesties be clearly, insistently, and repeatedly explained as granted for the sake of the general public and preservation of peace and civic order, not out of consideration for the deposed leader or avoidance of national shame and indignity.” Warm regards, Brian

  2. I think that one of South Africa’s most significant compromises was the pursuit of reconciliation without justice. Because reconciliation has become synonymous with impunity, one simply cannot buy into the ideals of ‘restorative justice’. Restorative justice has continued to prove itself to be a really good oxymoron.
    By pardoning the bad guys, particularly in Africa, particularly when our socio-economic condition is skewed in its current manner, particularly when so many of our leaders have failed so many of our people and gotten away with it, we will continue to suffer by condoning injustice. We can have reconciliation with the bad guys behind bars. What we can no longer afford to have is a reconciliatory process that forces victims to believe that the amnesty of perpetrators is the greater good for society.

    • Hi Jabu,
      Nice to hear from you — and thanks for engaging! Yes — as you point out, there is indeed a price to be paid for ‘moving on’, while leaving much unresolved. In retrospect, what happened in South Africa in the 1990s made it far too easy for the perpetrators of crimes against humanity to slip into self-righteous complacency. (Interestingly, Germany only began coming to terms with its Nazi past in the 1960s, two decades + after the end of the Second World War; the Nuremberg war trials only scratched the surface of the challenge…..). And, yes, having the bad guys “securely” (!!) behind bars can help with reconciliation. But when control of the state is at stake (as it was in SA in the early 1990s, as it may be again today, and as it could be in the USA, too) is that the outcome that would happen? (ie a just, stable platform, with the bad guys behind bars…..). Or would there be a fight to the finish(one which the bad guys could win, or one where everyone loses)? Jonny Steinberg’s piece (linked on my blog) raises this question. For SA’s immediate challenge, we’ll have more clarity within six months (and, if not by then, almost certainly by mid-2019……). Better outcomes are surely more likely than bad ones — but the probability of some very bad outcomes are uncomfortably high. How to reduce that risk? Thinking through some approaches to amnesty/pardon seems to me to be part of the answer. [A comment from Don Ross on the FB post is worth quoting: ” It’s crucial that amnesties be clearly, insistently, and repeatedly explained as granted for the sake of the general public and preservation of peace and civic order, not out of consideration for the deposed leader or avoidance of national shame and indignity.”. Warm regards, Brian

      • Hi Brian. Lovely to hear from you too. I always enjoy reading your blog posts.
        I largely agree, however it is often future generations who bear the brunt of today’s injustice and tend to be less ‘kind’ in how they address their grievances (case to point – fees must fall, young Germans in the 1960s).
        I think a certain tone/precedence needs to be set about how seriously we take constitutional democracy. Yes the bad guys might win, but that possibility cannot be a deterrent for the good guys to do the right thing. So yes, although thinking through approaches of amnesty/pardon is essential for the probable need to restore order and although I agree with the list offered by Larry, I still wonder what kind of criterion we would use to measure people against such factors. What actually changes after a commission of inquiry when there are no tangible consequences? For December we shall wait I suppose…

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