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.”
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.