How to construct the law to limit corruption

Y’know how every year various publications put out a list of the 10 best jobs of the upcoming year? I’ve always wondered why government politician never made it on.

It seemed like a do-nothing job, because appeasing the masses who have very little is a pretty easy gig when you have others and history to blame. Our political leaders did that so well that when the looting took place, the electorate refused to punish them because, since they were seen to be stealing from those labelled as original thieves, there was no retribution warranted.

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Everything from corruption to bankrupt SOEs could be blamed on apartheid and while some blame could probably be so attributable, the deflection had an uncanny way of negating every leadership decision since 1994. Even the ambulance bikes got the full treatment, although the results finally started to show the cracks in the rhetoric.

What the unintended consequences of the lockdown have been include taking the little away from people who had little to begin with.

All of a sudden, their apathy to the economic issues that once hardly affected them now hit home and apathy morphed into outrage.

When one struggles to put together enough money to buy basics and those prices rise drastically, there are problems. But when those basics are no longer available, a brand new player is thrown into the political arena. That player though is not one person. It’s a player in the form of millions of unemployed people now no longer as bystanders, but slap-bang in the middle of the political battle.

The problem is, how do they find justice when their primary recourse to courts etc. is so expensive and corruption cases are hardly putting a dent in the graft being exposed? To answer that, you should probably ask yourself whether it should fall to those who are being abused to deal with the abuse and you’ll probably find that your answer is no.

Yeah, they should have recourse if abuse happens, but the primary goal should be to avoid having funds earmarked for their wellbeing looted.

Fortunately, we’ve learned in some of the most unfortunate ways that one need not go to court to have the law act. Last month we learned that a woman falsely accused a man of sexual assault because she wanted a morning after pill which she would be legally entitled to following a case of such an assault. We also see children kicking their mothers from RDP houses after the death of their father when there was no formal marriage between their parents, and the widow has no right to the house.

The examples are countless, but what they all show is that the manner in which you construct your laws drives particular incentives.

It’s no secret that there are fractures in the fault lines up on high, and playing a politically savvy game is vital to stay alive.

If we could construct the law in such a manner that the mighty are incentivised to take their enemies out of the game, it’s likely to happen. While it may be unlikely that Cyril will whip out a dossier on Ace tomorrow, arming the cold war of political dog fights with legal ammunition could cause a rain of tax savings.

When the Constitutional Court was asked to determine the binding power of the public protector, many with foresight warned that this binding element was only attractive then because of the person (Thuli) who wielded it, not the office itself.

This, however, is different because no matter who exposes the corruption and what their incentives are, there can never be a case where we wouldn’t want such to be exposed.

And most of the tools already exist; corruption is broadly defined in statute that most undesirable activities are covered by it. The ability for private prosecution exists should the NPA be deemed to be “captured” and the electorate is salivating over the idea seeing those people, who have benefited from the agony of others with money meant to alleviate that agony, put away.

Legally, the incentives are all in place for a very sweet, long awaited battle against corruption and we just need somebody to nudge a few people with political enemies to realise this.

The only problem in South Africa is, who will throw the first stone?

Whoever it will be better decide quickly because we’re still 4 years away from a national election and if the youth were to band together to form COPE 2.0, #VoetsekANC may actually be more than a Twitter campaign of a despondent electorate.

Richard Anthony Chemaly entertainment attorney, radio broadcaster and lecturer of communication ethics.

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