AfriForum has released a 21-page dossier addressed to the “international community”, with a particular nod to American authorities.
Its purpose is to persuade the US to impose Magnitsky Act sanctions on Fikile Mbalula, the secretary-general of the ANC.
The grounds are two.
First, a holiday. December 2016. Dubai: Mbalula, then minister of sport and recreation, took his family away. The bill came to R684 620. A sporting goods company that did business with his department paid part of the bill.
The rest arrived in cash: R150 000 delivered by a government official and two separate deposits of R75 000 each made by a secretary at two different banks.
Later, when asked about the money, Mbalula claimed it was a loan. He repaid it. The National Prosecuting Authority (NPA) investigated and declined to prosecute.
Second, a collection of statements. Mbalula has criticised the US. He has called its government “fascist”. He has met with Hamas, travelled to Moscow, and expressed solidarity with Cuba and Iran.
He has dared the Americans to “bring on” the sanctions. The dossier presents these views as further evidence that he is a suitable candidate for the Magnitsky list.
No evidence of criminal conduct
The holiday is old news. It has been in the public domain for nearly a decade. The public protector at the time, Busisiwe Mkhwebane, found that Mbalula had violated the Executive Ethics Code. She recommended a money laundering investigation.
The NPA conducted an investigation and found no evidence of criminal conduct. That decision may be right or it may be wrong. But it was made by a constitutionally mandated body after a full inquiry.
What is striking about the dossier is what it does not do. It does not take the NPA’s decision on review to a high court. It does not ask a South African judge to examine whether the decision was rational. Instead, it bypasses our courts entirely.
It goes straight to Washington and asks foreign officials to step in where domestic institutions have not acted in the way the authors would like.
This matters. South Africa is a constitutional democracy. We have built institutions to handle disagreements about the conduct of public officials. The NPA is one of them. The courts are another.
The path is clear: if a decision not to prosecute is irrational, you go to court. You do not go to the Office of Foreign Assets Control.
The dossier makes much of a draft charge sheet that a senior prosecutor once prepared. Seven counts of corruption. One count of fraud. The evidence, it suggests, proves there was a case to answer.
But a draft is a draft. Prosecutors draft charges early, often before all the evidence is in. The existence of a draft tells us nothing about the final decision.
What matters is whether that final decision was rational. The dossier does not demonstrate that it was not the case. It merely asserts it and then moves on.
Recycling old allegations
Then there is the second part of the dossier: the foreign policy statements. The authors encounter a challenge here. The Magnitsky Act is designed to target human rights abusers and those engaged in significant corruption.
It is not a mechanism for punishing politicians whose views offend Western sensibilities.
If it were, half the world’s leaders would be on the list. Mbalula’s views may be controversial, but they are not illegal.
They are the views of the secretary-general of a governing party that has, for decades, positioned itself in the non-aligned movement.
Disagreeing with those views is one thing. Using these views as a basis for international sanctions is an entirely different matter.
And doing so while admitting, in the very same document, that you “do not propose to have a full grasp of the law pertaining to the Magnitsky Act” is, to put it gently, audacious.
None of this is to defend Mbalula. Public officials should be held to high standards. The public protector’s finding that he violated the ethics code was a proper rebuke.
Questions about the funding of his holiday were legitimate then, and they remain legitimate now. But a violation of the ethics code is not the same as a criminal offence.
The NPA examined the criminal allegations and found them wanting. That decision can be challenged.
It should be challenged, if there are grounds. But it should be challenged in a South African court, not in a foreign capital.
What we are left with is a 21-page document that recycles old allegations, adds a collection of political statements, and asks the world to intervene. It dresses itself in the language of human rights and accountability.
Magnitsky scrutiny?
But beneath that language, the substance is thin. A decade-old holiday, the money repaid, a prosecution declined, and a set of views that some find objectionable.
There is a rhythm to these things. A story surfaces. It generates heat. Then it fades, only to be resurrected when the political winds shift. The dossier is part of that rhythm.
It is not the first time AfriForum has raised the Dubai holiday, and it will not be the last. But each time it reappears, the gap between the noise and the facts becomes harder to ignore.
The constitution gives us the tools to deal with these matters. The courts are open. The review mechanism exists. If AfriForum believes the NPA’s decision is irrational, it can prove it before a judge.
That is the proper forum. The strength of its case will undergo testing in that forum. Until then, the international community would be wise to treat the dossier with the scepticism it deserves.
There are real cases of corruption in this country. There are genuine human rights abuses around the world that warrant Magnitsky scrutiny. A holiday in Dubai, paid back in full, is not one of them.
