Photo by Sora Shimazaki

“I have done nothing wrong. No court has convicted me on any charges!”

Does that sound familiar?

Of course it does!

That was roughly the parting message from former President Zuma when he was forced out of office on Valentine’s Day in 2018.

And as the Zondo Commission of Inquiry into State Capture was wrapping up its work, and more and more persons were implicated as facilitators of state capture, we heard more echoes of ‘innocent until proven guilty’. This defense could be heard from cabinet ministers and chairs of parliamentary portfolio committees. Even in the current President’s response to the theft at his Phala Phala farm, one can discern the undertones of this presumption of innocence until proven guilty.

The doctrine of presumption of innocence is a well-established principle in courts of law.

According to the Wex legal dictionary and encyclopedia, “presumption of innocence means that any defendant in a criminal trial is assumed to be innocent until they have been proven guilty. As such, a prosecutor is required to prove beyond a reasonable doubt that the person committed the crime if that person is to be convicted.”

There are certainly very good reasons for this rule being applied in courts. What I find worrisome is that this rule is also applied outside courts – at least in some contexts  – and seemingly almost consistently in parliament. There are, in my mind, two flaws with the application of this rule of court in non-court contexts.

The first flaw relates to the very important distinction between the law and ethics. The fact that a court has not (yet) convicted someone on a criminal charge does not mean that a person has not done wrong. If, for example, the police fail to identify a murderer, and there consequently is never a murder trial, it does not mean that the unidentified murderer has not done something seriously wrong and behaved in a highly unethical manner. Too often we also hear the excuse from business that irresponsible labour, social, or environmental practices are not wrong because there is no law that forbids them from engaging in such irresponsible practices.

Collapsing the distinction between legality and morality implies that unethical practices can be easily condoned simply because the law has not (yet), cannot, or will not pronounce on such matters.

It is mark of integrity to admit that you have done wrong even in the absence of criminal conviction, albeit that such marks of integrity have become a very scarce commodity – especially in the political arena in the ebb and flow of state capture.

There is, however, also a second serious flaw in applying the rule of ‘innocent until proven guilty’ in non-court contexts such as in public and private institutions. If applied in such non-court contexts, it can often paralyse organisations and prevent them from acting timeously to prevent further harm.

Take the example of a bank discovering that one of their employees is defrauding the bank and its clients. It is reasonable to expect the bank to intervene as early as possible and remove or suspend the suspect to prevent further fraud from occurring. Allowing the suspect to continue to work in the environment until the suspect is found guilty in a court of law would be irresponsible.

The implication, thus, is that if there is reasonable suspicion that something is wrong – or a high probability that unethical or illegal conduct is occurring – it provides sufficient justification for taking preventative action to prevent further damage from occurring.

In the final volume of the Report of the Zondo Commission of Inquiry into State Capture, it seems that the Commission supports these points of view.

In its criticism of the lack of action during the Zuma presidency by Parliament and also the then-Deputy President Ramaphosa, the Zondo Report seems to imply that there was more than sufficient suspicion that the former president was abusing the powers of his office to facilitate state capture. His reprimand of parliament and people in positions of power for not preventing such abuse of office is thus sound. If these institutions and persons had to wait for the legal charges to stick to the slippery former president before they were able to act against him, state capture would have continued unabated for much longer.

The same criticism also applies to the ‘step aside’ rule that is practiced in the ruling political party, which also came under attack in the final volumes of the Zondo Commission Reports.

The ANC’s step-aside policy determines that officials of the party need to voluntary step aside once criminal charges related to corruption have been instituted against them. Failing to do so would result in them being suspended from the party.

It seems as if the ANC internally opted for the presumption of innocence to expire once a person is criminally charged with corruption. This implies that the trigger for taking action against criminals inside the party is always pulled by the law enforcing institutions outside the party.

This raises the question of whether the termination of presumption of innocence should not rather be triggered much earlier, and that this should be done so within the party itself. It seems that the ANC’s internal disciplinary systems do allow for such a possibility, as part of the step-aside policy determines that in the face of serious allegations of corruption, members can be called to appear before the ANC’s internal Integrity Committee.

As the current Phala Phala related allegations against President Ramaphosa for omission or commission of wrongdoing play out, the internal disciplinary procedures will be put to test.

Until now, no criminal prosecution on charges of corruption has been brought against the President. But there are serious allegations that must be investigated by the law enforcement agencies. It would stand the ANC in good stead to burst the bubble of presumption of innocence earlier rather than later in this case, and launch its own internal investigation into these allegations as a matter of urgency.

It is thus important that institutions other than courts should not be paralysed by the court of justice rule of ‘innocent until proven guilty’ when serious allegations of unethical or illegal conduct is brought against their members. This applies not only to the ANC, but also to all other political parties, and all public, private, and civil society organisations.

Prof. Deon Rossouw is CEO of The Ethics Institute, a Chartered Director, and Extraordinary Professor in Philosophy at Stellenbosch University.