tag:theconversation.com,2011:/uk/topics/judge-32459/articlesjudge – The Conversation2019-03-28T20:46:06Ztag:theconversation.com,2011:article/1144692019-03-28T20:46:06Z2019-03-28T20:46:06ZWhat Oklahoma’s opioid settlement means for other states, cities and counties suing Purdue Pharma<p><a href="http://www.oag.ok.gov/mike-hunter-oklahoma-attorney-general">Oklahoma Attorney General Mike Hunter</a> recently announced that the state had reached <a href="https://www.nytimes.com/2019/03/26/health/opioids-purdue-pharma-oklahoma.html">a US$270 million settlement</a> with <a href="https://www.purduepharma.com/">Purdue Pharma</a>, the largest manufacturer of prescription opioids. The settlement resolves the state’s claims against Purdue over costs incurred in addressing the opioid crisis and allows Purdue to avoid a trial that was scheduled for May.</p>
<p>So the natural question arises: What does this development mean for the <a href="https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-March-15-2019.pdf">1,700 or so cases</a> brought largely by city and county governments against Purdue and a swath of other pharmaceutical-industry defendants? </p>
<p>My advice for other plaintiffs and opioid victims, <a href="https://law.case.edu/Our-School/Faculty-Staff/Meet-Our-Faculty/Faculty-Detail/id/936">based on my nearly three decades studying and practicing civil litigation</a>: Don’t get your hopes up. </p>
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<img alt="" src="https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=422&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=422&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=422&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=531&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=531&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266425/original/file-20190328-139356-15zjw18.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=531&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Judge Dan Polster is overseeing a case involving dozens of opioid lawsuits.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Opioid-Crisis-Lawsuits/a5dc160477c543f68badf78bc12374cc/3/0">AP Photo/Tony Dejak</a></span>
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<h2>Purdue’s potential bankruptcy</h2>
<p>Most of the outstanding cases have been consolidated into so-called <a href="https://www.ohnd.uscourts.gov/mdl-2804">multidistrict litigation in Ohio</a>. The court’s judge, Dan Polster, <a href="https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html">has pushed hard for a settlement</a>.</p>
<p>So will these cases follow Oklahoma’s lead and reach a settlement?</p>
<p>Not so fast.</p>
<p>Rumors have swirled around Purdue’s <a href="https://theconversation.com/purdue-pharma-bankruptcy-filing-would-make-lawsuits-slower-and-costlier-for-plaintiff-cities-and-states-113309">possible plan to seek bankruptcy protection</a> from creditors, including the plaintiffs in the opioid cases. That plan may make sense to Purdue given that the ongoing litigation could result in judgments in the <a href="https://www.nytimes.com/2019/01/30/health/opioid-lawsuits-settlement-trial.html">tens of billions of dollars</a> – presumably far in excess than the <a href="https://www.newyorker.com/magazine/2017/10/30/the-family-that-built-an-empire-of-pain">combined net worth</a> of the family that owns the private company, the Sacklers.</p>
<p>But a bankruptcy filing would create havoc for any prospect of near-term settlement for the outstanding opioid cases. An <a href="https://www.law.cornell.edu/uscode/text/11/362">automatic stay</a> would be issued that would bring all pending U.S. litigation to a screeching halt – including the bellwether multidistrict trial, which is set for October. </p>
<p>A bankruptcy judge with no familiarity with the case would suddenly find herself responsible for resolving perhaps the <a href="https://www.forbes.com/sites/nicolefisher/2018/10/18/opioid-lawsuits-on-par-to-become-largest-civil-litigation-agreement-in-u-s-history/">largest mass litigation</a> of its kind in history in terms of monetary size. That judge would have to approve any new settlement involving ongoing litigation in other jurisdictions and would likely require it to be global. That’s a herculean task – just ask Polster, who had hoped to settle the cases before him by now.</p>
<p>At the same time the alternative is also unthinkable in which all of the claims against Purdue would potentially relocate to the bankruptcy court where Purdue files. In other words, all 1,700 or so cases – including the multidistrict litigation and the state lawsuits – would be lumped together before the bankruptcy court to be resolved there. </p>
<p>That court could choose to send them back for trial to the courts where they originated but still would have ultimate authority to determine how much each creditor and plaintiff would end up with. </p>
<h2>Oklahoma’s settlement</h2>
<p>A bankruptcy filing by Purdue could also pose problems for the settlement with Oklahoma. </p>
<p>Although Oklahoma claims that <a href="https://www.nytimes.com/2019/03/26/health/opioids-purdue-pharma-oklahoma.html">its settlement is secured</a> against a possible bankruptcy filing – and Purdue <a href="http://www.startribune.com/the-latest-oklahoma-to-announce-settlement-in-opioids-case/507666652/">reportedly committed</a> to delay any filing – it’s likely the other plaintiffs would challenge it. Why should Oklahoma get a large settlement while all the other states with pending litigation are forced to accept the scraps following Purdue’s bankruptcy? </p>
<p>After all, there is nothing unique about Oklahoma’s case except that it was the first to come to trial. I don’t think a bankruptcy judge would feel warm and fuzzy about affirming a disproportionate settlement that would benefit one state to the detriment of all the other plaintiffs. </p>
<p>If the plaintiffs are crafty, they’ll try to force Purdue into bankruptcy by filing what is known as an <a href="https://www.law.cornell.edu/uscode/text/11/303">involuntary bankruptcy petition</a>. All it takes is three creditors with claims against a potentially insolvent company – such as three of the hundreds of states, counties or cities that are suing Purdue – to ask a bankruptcy court to assume control of its assets.</p>
<p>And in this case, the Oklahoma settlement could be deemed an attempt – legally called a <a href="https://codes.findlaw.com/us/title-11-bankruptcy/11-usc-sect-547.html">“preference”</a> – to benefit one creditor at the expense of others. Thus Oklahoma would lose whatever security interest it may have, as well as any money it received, within 90 days of such a bankruptcy petition. Those assets would return to the estate for division among all unsecured creditors. </p>
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<img alt="" src="https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=421&fit=crop&dpr=1 600w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=421&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=421&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=529&fit=crop&dpr=1 754w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=529&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/266426/original/file-20190328-139371-1mx8qgz.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=529&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Oklahoma Attorney General Mike Hunter recently settled his state’s opioid lawsuit against Purdue.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Mike-Hunter/d9edc767bb1a4bad9c7cae5460c9cdf2/47/0">AP Photo/Sue Ogrocki</a></span>
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<h2>What’s in it for Purdue</h2>
<p>So why did Purdue settle with Oklahoma rather than file for immediate bankruptcy protection? </p>
<p>Clearly, in my view, it’s not ready to file – but didn’t want the Oklahoma trial to start either. A cynic might wonder whether Purdue’s owners received profit distributions within the last year and are waiting to file for bankruptcy after the <a href="https://codes.findlaw.com/us/title-11-bankruptcy/11-usc-sect-547.html">so-called lookback period expires</a>. During the lookback period, creditors can claw back certain types of payments made within the year before the filing. For insiders like the Sackler family, the lookback period is a full year rather than 90 days – as it is for Oklahoma. </p>
<p>In any event, the Oklahoma settlement proceeds may well end up much lower than the settlement agreement provides. So the Oklahoma attorney general may have scored a political victory in announcing the settlement, but it remains to be seen whether his constituents will actually see the money – and, if so, how much and when.</p>
<p>Knowing that, it’s hard to imagine any significant further settlement activity, at least until another case gets within a month or two of trial. And, if Purdue does file for bankruptcy, the opioid cases may never get that close to a trial again.</p>
<p>And that, of course, means that the various states and local governments that have brought lawsuits will have to continue to bear the cost of opioid-related treatment and services for the foreseeable future.</p>
<p>[ <em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>. ]</p><img src="https://counter.theconversation.com/content/114469/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Pollis does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The $270 million settlement may not mean a whole lot if Purdue files for bankruptcy as it’s reportedly considering.Andrew Pollis, Professor of Law, Case Western Reserve UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/797922017-06-20T20:33:52Z2017-06-20T20:33:52ZPursuing a 30-year old bailout is sending South Africa on a wild goose chase<figure><img src="https://images.theconversation.com/files/174768/original/file-20170620-32355-7nhgnn.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Public Protector Busisiwe Mkhwebane has lit a grass fire in South Africa's financial circles.</span> <span class="attribution"><span class="source">Reuters/Mike Hutchings</span></span></figcaption></figure><p>South Africa’s Public Protector, Busisiwe Mkhwebane, has ignited a flaring grass fire with recommendations around a <a href="http://www.iol.co.za/news/politics/mkhwebane-absa-must-pay-back-the-money-9865770">R1.2bn bailout</a> paid to a local bank between 1986 and 1995. Known as the “Bankorp/Absa lifeboat”, the payment has been a bone of deep contention, with investigations and reports stretching back to the first presidents of South Africa’s democracy, Nelson Mandela and Thabo Mbeki.</p>
<p>The public protector’s recommendations on the bailout – set out in a <a href="https://www.ujuh.co.za/the-public-protector-in-her-own-words-on-the-bankorpabsa-matter/">report</a> released this week – are provocative. The first is that there should be a new investigation by the country’s elite investigative team into the obligations of one of South Africa’s largest banks, Absa, to pay back the considerable sum. Absa was formed in 1991 following the <a href="http://cib.absa.co.za/AboutUs/Pages/History.aspx">amalgamation</a> of eight banks, including Bankorp. Absa was later acquired by Barclays and currently trades as Barclays Africa. Essentially, this means calling on Barclays Africa to pay for the sins of one of its distant ancestors.</p>
<p>Even more provocatively, the Public Protector called for changes to the South African Reserve Bank’s remit. Her report says that Parliament should make changes to the country’s constitution to make this possible. </p>
<p>There are two quite complex issues here. Does Absa still owe the state (or the people) funds deriving from the “lifeboat” issued to Bankorp in the late apartheid era? And is the constitutional framework for the central bank appropriate?</p>
<p>The context for the report is an economy punch drunk from endless political infighting, where levels of trust between business and government are abysmal, and ratings are plummeting. Amid all the turmoil is the country’s Reserve Bank which remains one of the few core economic institutions still intact and uncaptured. </p>
<p>In these circumstances one cannot help ask the questions: why is the Public Protector reopening a case which has been thoroughly investigated, and why is it presuming the right to rewrite the constitutional mandate of the South African Reserve Bank?</p>
<h2>The lifeboat saga</h2>
<p>The issue has bounced in and out of the headlines over the past 30 years. </p>
<p>Two respected judges, Willem Heath and Dennis Davis found in two separate investigations – and for different reasons – that it was not practical or feasible to recover the funds. Heath delivered his report in <a href="http://www.huffingtonpost.co.za/2017/01/17/the-heath-report-absa-sanlam-liable-but-pursuing-them-expens_a_21656652/">1999</a>, Davis in <a href="http://www.gov.za/sites/www.gov.za/files/gov_panelexperts_bankorp_0.pdf">2000</a>.</p>
<p>Both judges found the transaction illicit because it protected shareholders rather than depositors and because of its long duration. But they both came to the conclusion that there was no appropriate way for the lifeboat to be repaid. </p>
<p>Heath felt it was risky while Davis found that the beneficiaries, policy holders in one of South Africa’s biggest insurance companies Sanlam, could not effectively be tapped for the funds. Sanlam owned Bankorp at the time it got into trouble.</p>
<p>The bailout saved Bankorp from collapse. Absa then entered the fray and bought Bankorp presumably at fair value from Sanlam. This meant that, in the end, Sanlam policyholders were the beneficiaries of the lifeboat. </p>
<p>The complication is that Sanlam is today a very different kind of company, owned by shareholders and no longer by its policyholders.</p>
<p>The Public Protector found otherwise.</p>
<h2>The Reserve Bank</h2>
<p>How this matter relates to the proposed constitutional amendment is something the public protector would have to explain very slowly and carefully. The link isn’t obvious.</p>
<p>It is also not at all obvious that it is appropriate for the Public Protector to instruct Parliament to change the Constitution. It seems extremely peculiar and beyond the mandate of the office, although constitutional experts rather than economists would be better placed to comment definitively.</p>
<p>Nevertheless, the constitutional proposal of the Public Protector raises, or resurrects an interesting question: is the constitutional mandate of the South African Reserve Bank appropriate? </p>
<p>The most contentious change Mkhwebane proposes is that clause 224 (1) of the constitution be amended. This clause currently reads: </p>
<blockquote>
<p>The primary object of the South African Reserve Bank is to protect the value of the currency in the interests of sustained and balanced growth.</p>
</blockquote>
<p>The Public Protector says it should be replaced with: </p>
<blockquote>
<p>The primary object of the South African Reserve Bank is to promote balanced and sustainable economic growth in the Republic, while ensuring that the socioeconomic well-being of the citizens are protected. </p>
</blockquote>
<p>This change is inappropriate, not because it introduces the socioeconomic well-being of the citizens into the mandate, but because it removes any reference to the responsibility of the central bank in regard to the value of the currency.</p>
<p>In my 2005 book <a href="http://www.gsdpp.uct.ac.za/sites/default/files/image_tool/images/78/Files/Pubs/61-season-of-hope-economic-reform-under-mandela-and-mbeki.pdf">“Season of Hope”</a> I also raised concerns about the absence in the constitutional mandate of the bank of a reference to the welfare of the people. After all, even the mandate of the US’s Federal Reserve Bank places the value of the currency and maximum employment as its twin <a href="https://www.federalreserve.gov/aboutthefed/structure-federal-reserve-system.htm">responsibilities</a>.</p>
<p>It could be argued that even without this clause, the South African Reserve Bank has occasionally acted as if it has a social mandate. This was particularly evident in the <a href="http://www.news24.com/Archives/City-Press/Who-will-replace-Gill-Marcus-20150429">Gill Marcus era</a> when as governor she kept interest rates lower than ostensibly justified by the inflation rate because of the dire state of the economy in the post-financial crisis period.</p>
<p>A welfare or employment element in its mandate could, at least in the abstract, bring a suitable balance to the responsibilities of the bank. But the Public Protector’s proposal to drop any reference to monetary stability would be extreme, utterly unconventional, and hopelessly foolish.</p>
<h2>Now what?</h2>
<p>As a bundle of proposals, the Public Protector’s findings have created a great stir. </p>
<p>It is very doubtful that Absa (now Barclays Africa) could be made to pay for Sanlam’s benefit and beyond even the realms of the post-truth era that monetary stability would be entirely removed from the constitution. It is hard to imagine that the Public Protector actually saw these proposals as viable.</p>
<p>The cynical among us might speculate that the ignition of such a grass fire is a wonderful way to deflect attention from pertinent state capture issues, and to implicitly support the radical economic transformation version of the <a href="https://theconversation.com/white-monopoly-capital-an-excuse-to-avoid-south-africas-real-problems-75143">“white monopoly capital”</a> thesis that so much that is wrong with South Africa can be blamed on a few immoral capitalists.</p><img src="https://counter.theconversation.com/content/79792/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Alan Hirsch does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>South Africa’s Public Protector, Busisiwe Mkhwebane has touched on two highly contentious issues: the unresolved bailout for a local bank three decades ago. And the role of the country’s Reserve Bank.Alan Hirsch, Professor and Director of the Graduate School of Development Policy, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/681012016-11-03T07:19:45Z2016-11-03T07:19:45ZWhy South Africans should resist an amnesty deal for Zuma<figure><img src="https://images.theconversation.com/files/144227/original/image-20161102-27231-vkzr2r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Jacob Zuma. Granting him amnesty would send the wrong signal. </span> <span class="attribution"><span class="source">Peter Foley/EPA</span></span></figcaption></figure><p>As the roof of Jacob Zuma’s presidency begins to <a href="http://www.sowetanlive.co.za/news/2016/11/01/zuma-s-position-now-untenable-and-he-must-resign-nehawu....">cave in</a>, there is the suggestion that, to save South Africa and the continuing damage that his incumbency is doing to the economy, he should be given <a href="http://businesstech.co.za/news/government/141709/give-zuma-a-presidential-pardon-anc-veteran/">amnesty</a>.</p>
<p>It would seem this is meant to give Zuma a cast iron assurance that the charges pertaining to his <a href="http://www.dailymaverick.co.za/opinionista/2016-05-03-high-court-finding-means-charges-against-zuma-are-effectively-reinstated/#.WBn4Yy197IU">involvement in corrupt dealings</a> around the arms deal be dropped. It would also serve as a guarantee that charges will never be reinstated. </p>
<p>With such assurances, it is suggested, he can be pensioned off as a former president to spend the rest of his days watching over his chickens and lazing around by his <a href="http://www.news24.com/Video/SouthAfrica/News/WATCH-Media-get-firepool-demo-at-Nkandla-20150726">firepool</a> in Nkandla. South Africa will then be able to get on with the job of restoring its brand and getting the economy going again.</p>
<p>At first sight, the idea is a tempting one. But probe just a little bit deeper and it becomes clear that it’s a very bad idea. </p>
<h2>When amnesty is justified</h2>
<p>Granting amnesty to dictators and warlords can be justified as a legitimate option if it serves to bring an end to brutal civil wars, halt killings and restore peace. If dictators identify their continued occupation of office as necessary to ensure their physical survival and guarantee their freedom from arrest, they are likely to do everything within their means to hang on to power. So the killings continue. </p>
<p>This sort of <a href="http://truth.wwl.wits.ac.za/cat_descr.php?cat=3">logic</a> prevailed in the case of South Africa’s own transition. Provision was made for amnesty to be granted to those, on both sides of the conflict, who were guilty of crimes against human rights which could be proved to be politically motivated. </p>
<p>This process was never carried through very thoroughly, and there are still some very unpleasant people at large who have never been prosecuted for brutal crimes. This continues to make many South Africans very <a href="http://www.702.co.za/articles/14249/why-has-the-npa-failed-to-prosecute-some-killers-found-guilty-by-the-trc">uncomfortable</a>. Yet, over the long term, most would conclude that a somewhat unsatisfactory peace is better than the war that might have engulfed the country if the (often unsavoury) deals around the political transition had not been struck. </p>
<p>But considerations such as these should not persuade South Africans to think of letting Zuma off the hook.</p>
<p>Most political commentators agree that the Zuma presidency has done enormous damage to the quality and institutions of democracy in South Africa. Details were revealed in Thuli Madonsela’s <a href="http://www.rdm.co.za/politics/2016/11/02/live-blog-the-release-of-the-state-capture-report-as-it-happens">final report</a> as Public Protector, which dealt with state capture and was released on November 2 after a legal battle. The report addresses, among other issues, alleged corrupt deals involving the <a href="http://mg.co.za/tag/gupta-family">Gupta family</a> and well as the removal and appointment of ministers. The report investigated whether this resulted in “improper and possibly corrupt” awarding of state contracts and benefits to the Gupta family businesses.</p>
<p>Along the way, “capture” of state institutions such as the South African Broadcasting Corporation, the National Prosecuting Authority, the state utility Eskom and South African Airways led to the corrupt diversion of resources towards individuals and companies related to the Guptas, at a major cost to the exchequer. It also led to many bad decisions being made. One notable case is Eskom’s attempt to commit the country to a <a href="https://theconversation.com/south-africas-power-utility-wants-to-finance-nuclear-this-is-a-bad-idea-67939">nuclear future</a>.</p>
<p>So why not step in now, wave Zuma goodbye, perhaps even give him a golden handshake, and stop the rot?</p>
<p>The simple answer is that it would not work. </p>
<h2>The problem extends beyond the presidency</h2>
<p>Getting rid of Zuma is only part, albeit a major part, of any solution which will seriously begin to tackle the scourge of corruption. </p>
<p>What about the Guptas? And what about Zuma’s extensive Gupta-connected patronage network? Are South Africans simply to concede amnesty to all, merely in the hope of better behaviour in the future by those who have so blatantly abused public office? </p>
<p>Or if South Africans were to demand a cleaning out of the Augean stables, would they be happy to prosecute merely the foot soldiers while their former generals were allowed to go free?</p>
<p>South Africa is a very violent society. But, thankfully, it is not a country in civil war. If it was, and getting rid of Zuma would lead to peace, there would be solid grounds for peacemakers striking a deal with him, however unpalatable. But South Africa is not at war and does not have to reach for extreme solutions. </p>
<p>Indeed, as a constitutional state, the country has the architecture and the instruments to prosecute wrongdoers at the highest level, and to justify the mantra that “everyone is equal before the law”. </p>
<p>Of course, for this to happen, there is the problem of getting the governing <a href="http://www.anc.org.za/">African National Congress</a> to agree.</p>
<h2>Zuma and the ANC</h2>
<p>The momentum within the ruling party for a change at the top is growing day by day, and it seems increasingly unlikely that Zuma will be able to see out his term as president of the party, which <a href="http://www.dailymaverick.co.za/article/2015-02-06-more-zuma-more-zumocracy-whats-behind-the-bid-to-extend-the-presidents-term/#.WBnmi_p97IU">ends in 2017</a>. He is less and less able to guarantee the safety and security of his cronies as the wheels begin to come off his presidency. </p>
<p>As more and more prominent individuals within the party and its allied <a href="http://www.timeslive.co.za/politics/2016/11/01/Zumas-position-now-untenable-and-he-must-resign-Nehawu">trade unions</a> begin to call for his head, the weaker his control over the National Executive Committee of the ANC, and the more likely that he will be asked by its power-brokers to stand down. Yet he is likely to bargain hard, demanding amnesty for past and current crimes – and the ANC might be tempted to grant it to him. </p>
<p>After all, if Zuma were to face trial (indeed, he could face several), then the ANC’s dirty washing would be hung out to dry over a considerable period of time. So if the point of getting rid of him would simply be to secure the ANC’s re-election in 2019 – the scheduled date for national elections – this would be as politically costly as it would be embarrassing.</p>
<p>In short, the grant of amnesty to Zuma looms as a very real possibility. But civil society should not allow it to happen. And if those within the ANC who are calling for the party to <a href="http://www.bloomberg.com/news/articles/2016-07-11/anc-must-reform-or-lose-power-in-south-africa-top-leader-says">reform</a> itself are genuine in their demands, they should argue for the ANC to face the consequences. No pain, no gain. Unless there is a cost, there is the danger of replacing Zuma as a person and not as the head honcho of the system of wheeler-dealing and patronage that he has put in place. </p>
<h2>Symbolism of a president in the dock</h2>
<p>Prosecuting Zuma would send out the message loud and clear: that South Africa remains a constitutional democracy. </p>
<p>The symbolism of a president in the dock would be enormous. It would be enormously popular in the cities and towns of Africa, even though the serried ranks of African leaders would regard it with alarm and horror. </p>
<p>It would send out a warning to all those enjoying political office that corrupt dealings carry a high risk of costly consequences. It would restore faith among South Africans in a state whose reputation is at its lowest point since 1994. It would encourage ordinary people to pay their taxes, and restore their confidence that these will be well and honestly used. </p>
<p>It is not enough that Zuma should simply vacate office. He must face the music for his alleged crimes, for his misuse of office, for his assault on the constitution. Those who connived in all this must face the music alongside him too.</p><img src="https://counter.theconversation.com/content/68101/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Roger Southall receives funding from the National Research Council</span></em></p>The idea of giving South Africa’s President Jacob Zuma amnesty in exchange for early exit is tempting but it will set a bad precedent.Roger Southall, Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/674182016-10-24T12:35:35Z2016-10-24T12:35:35ZDeaf or blind people can’t serve on juries – here’s why law needs to change<figure><img src="https://images.theconversation.com/files/142651/original/image-20161021-1751-1u7cqms.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Some can serve, some can't. </span> <span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-121503370/stock-photo-rear-view-of-a-advocate-communicating-with-the-jurors-in-the-court-house.html?src=mOl6miHUYkzD7p4b8Cgc3Q-1-8">bikeriderlondon</a></span></figcaption></figure><p>You might have thought any ordinary person of sound mind can serve on a jury, but actually no. Various groups are excluded in many countries including the UK, Ireland and Australia because of legal prohibitions. In the UK and Ireland, for example, deaf people <a href="https://www.theguardian.com/commentisfree/libertycentral/2010/jul/20/deaf-jurors-jury-system">are deemed</a> “incapable” of serving as jurors if they need an interpreter, since interpreters are not permitted in the jury room. Blind people, meanwhile, <a href="http://www.inbrief.co.uk/legal-system/jury-qualifications-and-disqualifications/">are</a> usually <a href="http://www.thejournal.ie/jury-service-flac-blind-deaf-jurors-871129-Apr2013/">excluded</a> at the judge’s discretion because they can’t read the court materials. </p>
<p>The law for both groups is similar in Australia and was <a href="http://www.abc.net.au/news/2016-10-05/deaf-woman-gaye-lyons-loses-high-court-challenge-juror/7904324">recently confirmed</a> by a final appeal decision in the Australian High Court regarding a deaf woman named Gaye Lyons who needs an interpreter even though she can read lips. She took legal action after she had been excluded from serving on a jury in Queensland in 2012. </p>
<p>In a decision that will potentially influence courts in the UK and other jurisdictions, the court held that Ms Lyons had not been discriminated against. It said the problem was in fact a lack of legislative provision for deaf people and could therefore only be addressed by politicians. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=433&fit=crop&dpr=1 600w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=433&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=433&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=544&fit=crop&dpr=1 754w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=544&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/142653/original/image-20161021-1778-1x2ushd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=544&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The interpreting sign.</span>
<span class="attribution"><a class="source" href="http://www.shutterstock.com/pic-11646751/stock-photo-the-interpreting-sign-in-sign-language-on-a-black-background.html?src=dIAx6cek1vMhFqWu6fkrdQ-1-61">Matt Antonino</a></span>
</figcaption>
</figure>
<h2>What is evident</h2>
<p>Lyons’ case is now <a href="http://www.canberratimes.com.au/act-news/act-looking-at-implications-of-high-court-deaf-juror-decision-20161014-gs2ct7.html">being referred</a> by the activist group People With Disability Australia to the UN Committee to the Convention on the Rights of Persons with Disabilities. The UN committee <a href="http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=19877&LangID=E">already condemned</a> two other legal decisions earlier this year to exclude deaf people from juries in New South Wales in Australia in 2012. Meanwhile, the British Deaf Association has been <a href="https://www.bda.org.uk/in-search-of-justice">actively lobbying</a> for deaf people to serve as jurors in the UK. </p>
<p>As things stand, however, it looks like this strange situation is more likely to be changed by politicians than judges – whether in Australia or the UK. As one of the people spearheading research into deaf jurors, there is certainly plenty of evidence as to why it should change. I am not aware of any equivalent work into blind people but some of the same observations would almost certainly be applicable. </p>
<p>For deaf jurors, there’s no comprehension issue. I helped establish that legal facts and concepts <a href="http://www.researchonline.mq.edu.au/vital/access/manager/Repository/mq:51816">can be</a> conveyed in sign language effectively enough for deaf people to access court proceedings and legal texts as well as hearing people. Deaf jurors <a href="https://pureapps2.hw.ac.uk/portal/en/publications/guilty-or-not-guilty-an-investigation-of-deaf-jurors-access-to-court-proceedings-via-sign-language-interpreting(8406e362-8d98-45f6-9ab4-792fd75012bd)/export.html">will</a> misunderstand certain terms and concepts, but no more than anyone else. </p>
<p>A <a href="http://www.academia.edu/7069181/Legal_interpreting_deaf_peple_and_jury_service">survey</a> of legal professionals and sign language interpreters from various countries in 2013 subsequently found that those in jurisdictions that already allowed deaf jurors tended to be more comfortable with having them. Having said that, respondents <a href="https://pureapps2.hw.ac.uk/portal/files/8931251/2015_Napier_McEwin_Alt_LawJ.pdf">didn’t have</a> a problem with deaf jurors in principle and thought they could serve successfully as long as there were clear supportive policies and guidelines and training for interpreters and court staff. </p>
<p>A final study in which I have been involved – which is not yet published – explored a simulated trial involving a deaf juror with interpreters in Australia. The deaf juror participated effectively and was a key contributor in the deliberations. The other hearing jurors overwhelmingly said they weren’t aware of the interpreters being engaged in the process or airing their opinions about the case. They saw them as neutral and not affecting the deliberation process. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=155&fit=crop&dpr=1 600w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=155&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=155&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=194&fit=crop&dpr=1 754w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=194&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/143285/original/image-20161026-11252-1es3hg2.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=194&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Still from simulated jury study in Australia.</span>
<span class="attribution"><span class="source">Jemina Napier</span></span>
</figcaption>
</figure>
<p>In feedback sessions earlier this year, judges, lawyers, jury managers and people from deaf organisations agreed the evidence shows there is no social or linguistic impediment to deaf jurors in principle. The legal professionals did believe that the right to a fair trial should override the right to do your civic duty as a juror. They said that providing interpreters would be complex, but was achievable with careful planning. The increasing use of video conference technology was specifically mentioned as a way to provide access to interpreters more easily. </p>
<p>Overall, the evidence strongly suggests that deaf people should be able to serve as jurors – and it is hard to imagine any good reasons not to extend blind people the same rights. It’s time the law was changed in the UK, Ireland and Australia to make this possible. Other countries already permit these kinds of people to serve, including New Zealand and most US states. </p>
<p>The governments and law reform commissions in the UK, Ireland and Australia are all considering this issue at present: it’s high time they took it forward.</p><img src="https://counter.theconversation.com/content/67418/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Professor Jemina Napier has received funding for research on deaf jurors since 2005 from the NSW Law Reform Commission, and through various Macquarie University internal grants. She is currently involved with a team of researchers on an Australian Research Council Linkage Grant (LP120200261, 2013-2016), working with Professor Sandra Hale and Ms Mehera San Roque, University of New South Wales; Professor David Spencer, Australian Catholic University; and Dr Debra Russell, University of Alberta; and with partner organisations: Deaf Australia, the Australian Federation of Deaf Societies and the Australian Sign Language Interpreters Association.
</span></em></p>A recent Australian high court case has highlighted a problem that also exists in UK and Ireland.Jemina Napier, Professor and Chair of Intercultural Communication, Heriot-Watt UniversityLicensed as Creative Commons – attribution, no derivatives.