We need to talk about Justice

In building an ethical society, we must reach broad agreement on the values and behaviours we want to see, as well as those we reject. Part of this process involves taking action against those who violate our laws.

But in reality, we hear a common theme: “Nothing happens to those who break the rules.” “There is no consequence management.” And even, “People get away with murder”—a phrase often meant literally.

We are a country starved of justice. We witness individuals breaking the law, destroying lives and businesses, and even undermining the nation—all without facing consequences.

It is not a case of not knowing who the perpetrators are. Their names and crimes are well-known. I can, without fear of defamation claims, say that Jacob Zuma and the Guptas were involved in state capture, that Marcus Jooste was involved in corporate fraud, and that Ace Magashule was involved in corruption. The list goes on. And yet, there are no consequences.

Every three years, The Ethics Institute partners with the government to survey public servants about their views on ethics. One open-ended question asks, “What is the one thing that will improve the ethical culture in the public sector?” The most prominent message: “Strengthen accountability and consequence management.”

One comment states, “Punish the wrongdoers or perpetrators of corruption or else all government programmes are going to become a mockery. We are sick and tired of corrupt officials who operate with such high levels of impunity!” Another says, “At present, it is like a circus where everyone gets away with everything because nothing is ever done.”

Public servants themselves are frustrated and want to see more timely and consistent enforcement of rules. Managers in the public sector often express that it is very difficult to remove someone who breaks the rules. The unions are strong, and the technical capacity to run investigations and disciplinary cases is weak. In other cases, perpetrators are “politically protected” and become untouchable.

This frustration is also evident in communities. We were recently involved in a project to train community activists on anti-corruption tools and resources. It was a difficult conversation because communities have lost faith in the institutions and laws meant to protect them. They say they cannot speak up about corruption for fear of their safety. They cannot go to the police because the police are often in the pockets of the corrupt or of drug lords. In one story, people reported drug dealers to the police, only to see them back on the street the next day. One good citizen told us he had to move to another province after blowing the whistle on a drug dealer who never faced justice.

When we speak to well-intentioned police officers, they too express their frustrations. They arrest people, but these individuals are out on bail two days later and very seldom end up in prison. The community directs its anger at the police officers, as they are the face of the law.

Now, put yourself in the shoes of a police officer. At great personal risk, you arrest someone, only to see them go free. This happens once, twice, ten times. At what point do you start to wonder if it really matters in the bigger scheme of things if you take a bribe to let people walk free? The outcome is the same, but at least you gain some benefit.

If you speak to the National Prosecuting Authority, they highlight complex laws, a challenging burden of proof, and a lack of human resources. Their work is complicated, and (partly due to the degradation of the institution during state capture) they simply don’t have enough people who can navigate this complexity.

There may be corrupt role-players in our justice system, but even those with noble intent are struggling. Having worked in the anti-corruption environment for nearly two decades, it is clear that we now have committed people leading most, if not all, anti-corruption institutions. These individuals work tirelessly to rebuild institutions and ensure justice is served. But they too are frustrated.

This begs the question: is our complex justice system really bringing justice to its citizens?

Any fair justice system must balance the rights of the many (to see justice served) against the rights of the few (to protect them from unjust prosecution). Our current system is designed to protect the rights of the innocent. However, too often, we see justice denied or delayed due to legal technicalities. The system is frequently perceived as protecting the rights of the guilty more than those of the innocent.

On a larger scale, this leads citizens to increasingly question whether the justice system serves them at all. When they see crime in their communities getting out of hand, drugs being sold to their children with impunity, and general lawlessness increasing, what should they think?

It is not immediately clear what the solution is. The problem involves a mix of political will and resources, capacity constraints, and the previous politicisation of the justice cluster. It may even be that our legal system is too complex.

I am not an expert in the field, but I see the frustration on the ground and believe we need to have this conversation as a country. As citizens of a constitutional democracy, people have a legitimate expectation that justice will be done and be seen to be done. It cannot be that those who want to live productive, constructive lives feel less protected than those who don’t.

A safer society is something all political parties agree on. Surely, we can find a way to make this happen.

About the author: Kris Dobie is a Senior Manager: Organisational Ethics at The Ethics Institute