Johannesburg – Since the dying days of apartheid in the mid-1990s, and at several pivotal moments since, South Africans have yearned for some measure of accountability for the ravages of apartheid.
After all, the end of a system declared a crime against humanity by the UN had to yield an inevitable reckoning and accountability, especially for its victims.
The first opportunity for accountability for apartheid crimes in democratic South Africa came with the report of the Truth and Reconciliation Commission (TRC).
The universal expectation was that those denied amnesty at the commission for apartheid-era atrocities, or those who refused to appear before it, would be held accountable by the criminal justice system. Regrettably this did not materialise.
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Another opportunity was the Marikana report of Judge Ian Farlam after the deaths of 44 people – including 34 miners at the hands of the police – at Lonmin’s Marikana mine in 2012.
The failure of the report to recommend the prosecution of those responsible for the deaths of the miners led to widespread disappointment.
Even Justice Dikgang Moseneke’s compelling Life Esidimeni report in 2018, which highlighted the deaths of 144 mentally ill patients due to wilful neglect and cruelty by government officials, failed to generate prosecutions.
South Africans now face another moment of accountability.
This follows the release of part one the of the report of the Judicial Commission into State Capture led by Deputy Chief Justice Raymond Zondo.
The well-detailed and comprehensive report must be followed up to hold accountable those linked in the report to rampant corruption during the reign of former president Jacob Zuma.
Indeed, President Cyril Ramaphosa has described the first part of the Zondo Commission’s report as a “defining moment” in the country’s effort to restore government’s integrity, credibility and capability.
But will it happen?
One problem is that the country’s National Prosecuting Authority (NPA) is severely constrained in its ability to pursue prosecutions against those implicated in corruption. Nevertheless, it’s imperative for prosecutions to commence immediately for a few reasons.
First, there is ample material provided in the Zondo report, which is of great evidential value to prosecutors. Second, the evidence is fresh and easy to corroborate.
Third, over time memories fade and witnesses disappear, but witnesses who appeared before the commission may now continue to cooperate.
Fourth, unlike the last few years, the government, at least rhetorically, seems committed to holding individuals implicated in the report accountable.
The report, with its designated list of prospective defendants, as well as its mountain of evidence, provides the prosecutors with a blueprint for pursuing successful prosecutions.
Specifically, the commission has assisted the NPA in several ways.
The commission has provided the prosecutors with enough of a narrative to launch successful prosecutions.
The story to be told is about how misinformation and chicanery at the highest levels were orchestrated.
It may be worth taking guidance from the strategy being pursued by the US Justice Department to pursue wrongdoers in the attack on the US Capitol on January 6 2021.
US attorney-general Merrick Garland recently described how prosecutors started with the easiest cases.
These included ones in which the evidence was compelling and where cooperation from defendants might implicate others.
Also, the Zondo Commission has provided evidence gathered over the course of three years.
This includes interviewing more than 300 witnesses, and collecting a trove of documents that will provide important sources of evidence.
This has laid much of the groundwork for investigators and prosecutors.
Pursuing prosecutions with purpose and gusto will signal government’s commitment to eliminating the scourge of corruption that has plagued the country.
This is particularly important for Ramaphosa, who has appeared hapless for too long with respect to corruption within the ranks of the ruling ANC.
- Andrews is professor of law at New York Law School. This article was originally published on The Conversation.
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