tag:theconversation.com,2011:/us/topics/racketeering-17352/articlesRacketeering – The Conversation2023-08-31T12:19:57Ztag:theconversation.com,2011:article/2122392023-08-31T12:19:57Z2023-08-31T12:19:57ZRICO is often used to target the mob and cartels − but Trump and his associates aren’t the first outside those worlds to face charges<figure><img src="https://images.theconversation.com/files/545340/original/file-20230829-22497-mdx0an.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County District Attorney Fani Willis speaks during a news conference after former President Donald Trump's Aug. 15 indictment. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-district-attorney-fani-willis-speaks-during-a-news-photo/1615613099?adppopup=true">Joe Raedle/Getty Images</a></span></figcaption></figure><p>It might seem odd to some that former President Donald Trump and his co-defendants, many of whom are lawyers and served as senior government officials, were charged with racketeering regarding their alleged attempt to <a href="https://d3i6fh83elv35t.cloudfront.net/static/2023/08/CRIMINAL-INDICTMENT-Trump-Fulton-County-GA.pdf">overturn the results of the 2020 election</a> in Georgia.</p>
<p>Racketeering charges are complex but generally speak to dishonest business dealings. Many racketeering prosecutions involve lucrative criminal enterprises, such as illegal drug operations or the Mafia. </p>
<p>Whatever the lawfulness of Trump’s efforts to overturn the 2020 election, no one claims his conduct was part of a Mafia scheme. </p>
<p>I <a href="https://scholar.google.com/citations?user=DMWfDCgAAAAJ&hl=en">am a scholar of criminal law</a> and procedure. Prosecutors sometimes charge white-collar defendants who are not part of a mob with RICO violations.</p>
<p>Trump is set to be arraigned on Sept. 6, 2023, in Atlanta, for his alleged attempt to overturn the election in that state. At that time, he will be read his formal charges and will plead guilty or, far more likely, not guilty. </p>
<p>A grand jury in Fulton County, Georgia, <a href="https://www.pbs.org/newshour/politics/read-the-full-georgia-indictment-against-trump-and-18-allies">indicted Trump</a> and 18 other political associates on Aug. 15, 2023. They are facing charges under Georgia’s <a href="https://law.justia.com/codes/georgia/2022/title-16/chapter-14/">Racketeer Influenced and Corrupt Organizations Act</a>, often called RICO. </p>
<p>Trump and others, including former Trump <a href="https://apnews.com/article/trump-giuliani-georgia-election-indictment-fulton-county-203b1e69cbff227a0bf8cc59a6bb645f">attorney Rudolph Giuliani</a>, are also charged with a number of other specific crimes such as forgery, filing false documents and <a href="https://law.justia.com/codes/georgia/2022/title-16/chapter-4/section-16-4-7/">solicitation</a> of <a href="https://law.justia.com/codes/georgia/2022/title-16/chapter-10/article-1/section-16-10-1/">violation of oath by a public officer</a>. </p>
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<a href="https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A black and white cartoon shows a map of New York City with photos of different known Mafia men, including Al Capone." src="https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=604&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=604&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=604&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=759&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=759&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545342/original/file-20230829-22-rsr2b4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=759&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A graphic from 1933 shows where different gang leaders, including Al Capone, operated. Before 1970, members of the Mafia or other similar groups were tried individually for their crimes.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/heres-the-way-the-racketeering-group-lined-up-in-the-early-news-photo/515619350?adppopup=true">Bettmann/Getty Images</a></span>
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<h2>RICO’s relatively short history</h2>
<p>In 1970, <a href="https://history.house.gov/Historical-Highlights/1951-2000/Crime-Control-Act-of-1970/">Congress enacted</a> the <a href="https://www.law.cornell.edu/uscode/text/18/part-I/chapter-96">Racketeer Influenced and Corrupt Organizations law</a>.</p>
<p>Before 1970, prosecutors could <a href="https://www.justia.com/criminal/docs/rico/">prosecute individuals</a> only for conspiracy and other specific offenses, even if they were allegedly Mafia-related crimes and even if the defendants were alleged to be career or professional offenders. </p>
<p>At least <a href="https://www.findlaw.com/state/criminal-laws/racketeering.html">31 states</a>, including <a href="https://law.justia.com/codes/georgia/2022/title-16/chapter-14/">Georgia, have since enacted</a> so-called “little RICO” or “state RICO” laws modeled after federal RICO, allowing such prosecutions to be brought in their courts. </p>
<p>The federal and state versions of RICO are notoriously <a href="https://www.ussc.gov/sites/default/files/pdf/training/primers/2021_Primer_RICO.pdf">detailed</a> and <a href="https://readingroom.law.gsu.edu/cgi/viewcontent.cgi?httpsredir=1&article=1415&context=gsulr">complex</a>. </p>
<p>In essence, however, most versions of the law create a new, and more serious, offense – namely, engagement in a pattern of <a href="https://www.investopedia.com/terms/r/racketeering.asp">specified criminal activity</a> as part of an organization. Sometimes the organization is a criminal gang of some kind that exists to make an illegal profit, such as robbery teams, loan sharks, narcotics manufacturers, professional gamblers or human traffickers. </p>
<p>The organization could also be an otherwise legitimate business or governmental entity. Making money is sometimes, but not always, a factor in racketeering cases.</p>
<p>So-called RICO predicates – the underlying crimes that form the pattern – encompass a wide range of illegal conduct, including crimes as diverse as <a href="https://www.law.cornell.edu/wex/bribery">bribery</a>, <a href="https://www.law.cornell.edu/wex/mail_fraud">mail fraud</a>, kidnapping and murder. </p>
<p>In general, both federal and state judges have interpreted RICO broadly, in both allowing charges and convicting defendants. RICO claims may also be brought by civil plaintiffs. But in such cases only monetary damages and other forms of civil relief may be awarded, and this does not result in imprisonment. </p>
<h2>Anyone can get charged with RICO</h2>
<p>In 1989, the Supreme Court explained that while <a href="https://supreme.justia.com/cases/federal/us/492/229/">RICO was originally intended for gangsters</a>, it could apply to companies and other people who are not part of an organized crime operation, as long as they violated the terms of the statute. </p>
<p>That year, the Supreme Court was <a href="https://www.washingtonpost.com/archive/business/1989/06/27/supreme-court-backs-use-of-rico-statute-damages/15eb8a87-5873-474b-8952-f2d87bf4e78d/">considering a case</a> in which the telephone company Northwestern Bell, which was serving the Minneapolis area, was accused of bribing state officials at the Minnesota Public Utilities Commission with gifts and employment in order to win rate increases. </p>
<p>The Supreme Court explained that Congress had organized crime in mind when it drafted the law but intentionally made it broader, encompassing a wider range of criminal conduct. </p>
<p>So, if otherwise upstanding citizens who work for legitimate businesses commit acts of bribery and corruption, this can lead to a RICO charge.</p>
<p>A few years later, in 1994, <a href="https://supreme.justia.com/cases/federal/us/510/249/">the Supreme Court unanimously ruled</a> that abortion clinics could use the federal RICO law to <a href="https://www.washingtonpost.com/archive/politics/1994/01/25/abortion-clinics-can-use-racketeer-law-on-protests/bbb61b8b-b737-47ba-8161-7cf5a0b25237/">sue anti-abortion protesters</a> who conspired to shut them down. </p>
<p>In 1997, the federal government <a href="https://www.law.cornell.edu/supremecourt/text/522/52">charged a Texas sheriff</a> with RICO after he accepted money from a federal prisoner in exchange for conjugal visits with the prisoner’s wife or girlfriend. The sheriff, Mario Salino, was <a href="https://www.tampabay.com/archive/1997/12/03/texas-jail-bribery-conviction-is-upheld/">sentenced to three years in prison</a> and fined $5,000. </p>
<p>Cases in the U.S. Supreme Court included liquor dealers suspected of <a href="https://www.law.cornell.edu/supct/html/03-725.ZS.html">evading Canadian export taxes</a> and a person accused of transporting automobile titles with <a href="https://www.law.cornell.edu/supremecourt/text/498/103">falsified odometer readings</a>. </p>
<p>Over the past few decades, <a href="https://www.justice.gov/opa/pr/castro-enterprise-leader-convicted-rico-conspiracy-and-other-violent-crimes">many business leaders</a>, <a href="https://www.justice.gov/usao-edpa/pr/philadelphia-congressman-and-associates-convicted-rico-conspiracy-public-corruption">politicians</a> and other <a href="https://www.npr.org/2019/07/11/740596170/fbi-arrests-former-top-puerto-rico-officials-in-government-corruption-scandal">government officials</a> <a href="https://www.nytimes.com/2019/05/23/business/dealbook/rico-insys-opioid-executives.html">have been convicted</a> of state and local RICO offenses for various crimes. </p>
<p>In August 2023, for example, a former mayor of Humacao, Puerto Rico, was sentenced to three years and one month in prison for his involvement in a bribery scheme. According to the Department of Justice, the politician, Reinaldo Vargas-Rodriguez, privately <a href="https://www.justice.gov/opa/pr/former-puerto-rico-mayor-sentenced-accepting-bribes">accepted cash from two companies</a> in exchange for his giving them municipal contracts. </p>
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<a href="https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A large screen on a street with trees and parked cars shows a photo of Donald Trump's mugshot." src="https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=372&fit=crop&dpr=1 600w, https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=372&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=372&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=468&fit=crop&dpr=1 754w, https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=468&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/545338/original/file-20230829-29-huoio9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=468&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">An outdoor screen in London displays a news story showing former President Donald Trump’s mug shot following his arrest in Georgia.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/an-outdoor-screen-in-central-london-displays-a-news-story-news-photo/1623314163?adppopup=true">Vuk Valcic/SOPA Images/LightRocket via Getty Images</a></span>
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<h2>Georgia courts are on board</h2>
<p>Georgia courts agree with the Supreme Court that their state RICO law requires no allegation or proof of “<a href="https://law.justia.com/cases/georgia/court-of-appeals/1990/a89a1832-0.html">nexus with organized crime</a>.” </p>
<p>A range of people in Georgia have been hit with RICO charges. In 2005, Georgia prosecutors charged a former DeKalb County <a href="https://law.justia.com/cases/georgia/supreme-court/2005/s05a0897-1.html">sheriff named Sidney Dorsey</a> with killing his successor, as well as racketeering and other crimes. <a href="https://www.11alive.com/article/news/local/derwin-brown-daughter-brandy-remembers-father/85-6825c440-0022-41af-a504-dd0fb0fa8d7c">Dorsey is</a> serving <a href="https://www.ajc.com/news/crime--law/sidney-dorsey-shot-death-clayton-county/Uz5AVLnfjNJpQ6NTgrnpLL/">life in prison</a>. Truck stop owners and operators accused of doctoring the <a href="https://cases.justia.com/georgia/supreme-court/s09a0371.pdf">prices and fuel quality labels on gas pumps</a> have also been prosecuted. </p>
<p>Perhaps most relevant to the charges against Trump and his associates, the <a href="https://law.justia.com/cases/georgia/supreme-court/1984/41044-1.html">Georgia Supreme Court</a> rejected a claim by Georgia’s elected commissioner of labor that officeholders seeking reelection were exempt from RICO: “By its express terms, the RICO act includes as a crime a reelection campaign by the holder of public office in which 2 or more similar or interrelated predicate offenses specified in the act are committed.”</p>
<p>It is not yet clear how Trump and his former associates will fare with RICO charges in a Georgia court. But they are far from the first people with no involvement in an organized criminal organization to be forced to defend themselves against racketeering charges.</p><img src="https://counter.theconversation.com/content/212239/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Gabriel J. Chin receives funding from the University of California and the State Bar of California.</span></em></p>Federal and state RICO charges, which target racketeering, have been applied to a wide range of crimes committed by politicians and business people over the past few decades.Gabriel J. Chin, Professor of Criminal Law, Immigration, and Race and Law, University of California, DavisLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2115822023-08-15T03:31:12Z2023-08-15T03:31:12ZFulton County charges Donald Trump with racketeering, other felonies – a Georgia election law expert explains 5 key things to know<figure><img src="https://images.theconversation.com/files/542726/original/file-20230815-6385-nfovfk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fulton County Superior Court Judge Robert McBurney receives documents from court clerk Che Alexander on August 14, 2023. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-superior-court-judge-robert-mcburney-receives-news-photo/1599897578?adppopup=true">Megan Varner/Getty Images</a></span></figcaption></figure><p><em>An Atlanta, Georgia, <a href="https://www.ajc.com/politics/trump-18-others-indicted-for-trying-to-overthrow-2020-georgia-election/PQ3N2YBIDRDJFLJGFLEBZUWM6I/">grand jury indicted</a> former President Donald Trump on Aug. 14, 2023, charging him <a href="https://www.law.cornell.edu/wex/racketeering">with racketeering</a> and 12 other felonies related to his alleged attempts to overturn his 2020 election defeat in the state.</em></p>
<p><em>Eighteen of Trump’s allies and associates, including former Trump attorney Rudolph Giuliani and former White House chief of staff Mark Meadows, were <a href="https://www.documentcloud.org/documents/23909548-trump-georgia-criminal-indictment">also indicted</a> for racketeering and other felony charges for their alleged involvement in the scheme.</em></p>
<p><em>This marks <a href="https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html">Trump’s fourth indictment in five months</a> – and the second to come from his efforts to undo the election results that awarded the presidency to Joe Biden. Fani Willis, the district attorney of Fulton County, Georgia, <a href="https://www.atlantanewsfirst.com/2023/07/24/timeline-donald-trumpgeorgia-investigation/">started investigating</a> Trump’s involvement in this alleged scheme, as well as that of Trump’s colleagues, in February 2021.</em></p>
<p><em>In January 2021, one month before the investigation started, Trump <a href="https://www.nytimes.com/2021/01/03/us/politics/trump-raffensperger-call-georgia.html">placed a phone call</a> to Georgia Secretary of State Brad Raffensperger and pressed him to <a href="https://apnews.com/article/election-2020-joe-biden-donald-trump-georgia-elections-a7b4aa4d8ce3bf52301ddbe620c6bff6">“find” enough votes</a> to overturn Biden’s win.</em> </p>
<p><em>The Conversation U.S. spoke with <a href="https://scholar.google.com/citations?user=AI_UyLUAAAAJ&hl=en">Anthony Michael Kreis</a>, a scholar of Georgia’s election laws, to understand the significance of the charges laid out in the <a href="https://www.documentcloud.org/documents/23909543-23sc188947-criminal-indictment">98-page indictment</a>. Here are five key points to understand about the precise nature of the charges and why <a href="https://www.nytimes.com/live/2023/08/14/us/trump-indictment-georgia-election#trump-georgia-rico-charges">racketeering is at the center</a> of them.</em></p>
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<a href="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Two black cars that say 'sheriff' on it block off a street in front of a walk over that says Fulton County and nearby government buildings." src="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542671/original/file-20230814-25-ul89dv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Police officers block off a street in front of the Fulton County Courthouse on August 14, 2023, in Atlanta.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fulton-county-sheriff-officers-block-off-a-street-in-front-news-photo/1614302634?adppopup=true">Joe Raedle/Getty Images</a></span>
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<h2>1. Racketeering is different from conspiracy charges</h2>
<p><a href="https://www.pbs.org/newshour/politics/why-georgias-rico-law-could-be-key-in-the-states-case-against-trump">With a Racketeer Influenced and Corrupt Organizations, or RICO, charge</a>, Willis presents a narrative that there were a large number of people involved in this case, but that they didn’t necessarily sit down at some point and over cocktails and say, “We are going to engage in this criminal act,” which would be a traditional conspiracy case. She is painting this picture of people winking and nodding and working toward this end goal of overthrowing the election, but without some kind of expressed agreement. </p>
<p>The Georgia RICO law allows her to rope in a lot of people who allegedly were involved with this kind of approach. </p>
<p>To be able to bring conspiracy charges, she would have to have an expressed agreement and a concrete act in furtherance of that conspiracy. And here there really wasn’t quite a plan – it is essentially a loose organization of people who are all up to no good. </p>
<h2>2. Georgia – and Willis – have used racketeering charges before</h2>
<p>Traditionally in Georgia, <a href="https://www.axios.com/2023/08/14/trump-georgia-rico-charges-fani-willis">RICO</a> has been used to prosecute people engaged in very violent kinds of activity – for street gangs and the Mafia, in particular. It has also been used in other contexts. </p>
<p>The most notable is the Atlanta public school cheating prosecution in 2015, when a <a href="https://www.washingtonpost.com/education/2022/02/01/atlanta-cheating-schools-scandal-teachers/">number of educators</a> were charged with manipulating student test scores. They wanted to make the public schools look better for various reasons. But they didn’t all know exactly what the other people were doing. </p>
<p>Willis <a href="https://www.jacksonville.com/story/news/2015/04/01/11-atlanta-public-schools-educators-convicted-racketeering-test/15657062007/">was the assistant district attorney prosecuting that racketeering</a> case. It’s a tool that she likes to use. And it is a tool that can be really hard for defendants to defend against. Eleven of the 12 defendants were convicted of <a href="https://www.usatoday.com/story/news/nation/2015/04/01/atlanta-schools-cheating-scandal-verdict/70780606/">racketeering in 2015</a> and received various sentences, including up to 20 years in prison. </p>
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<a href="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Fanni Willis looks straight ahead at the camera and sits at a wooden table." src="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=450&fit=crop&dpr=1 600w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=450&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=450&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=565&fit=crop&dpr=1 754w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=565&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/542672/original/file-20230814-9532-444nn4.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=565&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Fanni Willis, the district attorney of Fulton County, Georgia, is seen inside her office in September 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/fani-willis-the-district-attorney-of-fulton-county-georgia-news-photo/1246123003?adppopup=true">David Walter Banks</a></span>
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</figure>
<h2>3. Georgia law poses particular risks to Trump</h2>
<p><a href="https://law.justia.com/codes/georgia/2021/title-16/chapter-14/">Georgia’s RICO law</a> is much more expansive than the federal version of the law. It allows for a lot more different kinds of conduct to be covered. That makes it very easy to sweep people into one criminal enterprise and it’s a favorite tool for prosecutors. </p>
<p>And the punishments for violating the state’s RICO are harsh. There is a <a href="https://www.newsweek.com/donald-trump-rico-georgia-charges-fani-willis-1818509">minimum five-year sentence</a> for offenders, and there can be a lengthy prison sentence for any co-defendants, as well. </p>
<p>But it also introduces a new dynamic, which Trump might not be used to. There is a big incentive for people who are listed as co-defendants to cooperate with the state and to provide evidence, in order to escape punishment and secure favorable deals.</p>
<p>This is probably the biggest risk to Trump, and the likelihood that he would be convicted in Fulton County rests with this. The other people involved in this are not all household names, and presumably have families and friends and don’t want to go to prison. They may well find themselves in a position to want to give evidence against Trump. </p>
<p><iframe id="tYrfU" class="tc-infographic-datawrapper" src="https://datawrapper.dwcdn.net/tYrfU/12/" height="400px" width="100%" style="border: none" frameborder="0"></iframe></p>
<h2>4. It’s ultimately about election law</h2>
<p>It looks like Georgia election law is taking a slight backseat to some of these other possible charges – of false swearing, giving false statements – which is not quite an election conspiracy, or election interference, which are distinct charges under Georgia law. </p>
<p>The important lesson here is that Willis is essentially bringing an election conspiracy charge under RICO, so it is an election law violation by another name. </p>
<p>What she is vindicating is not only the rights of Georgians to vote and have their votes counted. Willis is also preserving the integrity of the election system – to not have poll workers harassed, to not have people making false statements about the elections in courts of law, and to not have <a href="https://apnews.com/article/fulton-county-election-investigation-trump-georgia-fb5240cf854eb546b027f950646268c2">people tamper</a> with an election.</p>
<h2>5. This could influence future key elections</h2>
<p>Georgia has some serious contested elections <a href="https://ballotpedia.org/Georgia_elections,_2024">ahead in 2024</a> and 2026. And people need to have faith in the system, the process, as well as in the institutions and the people. Fani Willis has a very important goal here – which is to expose the wrongs for what they were, to show people what happened here and to what degree it was criminal, if she can prove that. It’s also about reassuring people that if others engage in this kind of conduct, they will be penalized.</p><img src="https://counter.theconversation.com/content/211582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anthony Michael Kreis 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>Fulton County District Attorney Fani Willis’ RICO charges against Trump are targeting election law violations, but by another name. The charges can result in a minimum five years in prison.Anthony Michael Kreis, Assistant professor of law, Georgia State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1942822022-11-10T11:53:32Z2022-11-10T11:53:32ZSouth Africa provides fertile ground for funders of terrorism. Here’s why<figure><img src="https://images.theconversation.com/files/494600/original/file-20221110-18-z9fote.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The country needs to pay closer attention to compliance with anti-money laundering legislation. </span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The US embassy in South Africa has twice raised the alarm recently about terrorism in the country. On <a href="https://za.usembassy.gov/security-alert-u-s-embassy-possible-attack/">26 October</a> it issued a security alert for a possible terror attack in <a href="https://www.tripadvisor.co.za/Tourism-g312586-Sandton_Greater_Johannesburg_Gauteng-Vacations.html">Sandton</a>, the financial centre of Johannesburg. </p>
<p>Days later it <a href="https://home.treasury.gov/news/press-releases/jy1084">blacklisted four individuals and eight companies</a> as terrorist financiers for Islamic State (ISIS). This followed media reports, most notably by <a href="https://www.economist.com/middle-east-and-africa/2022/04/16/islamic-state-is-using-south-african-money-to-build-its-network">The Economist</a>, showing that ISIS was using South Africa to add to its war chest.</p>
<p>There is a long history of concerns about the country’s deficiencies in dealing with terrorism financing activities within its borders. More than 15 years ago, American terrorism expert <a href="https://jamestown.org/analyst/john-solomon/">John Solomon</a> <a href="https://jamestown.org/program/new-report-of-terrorist-camp-in-south-africa/">warned</a> that lawlessness and government corruption in the country facilitated terrorist financing. </p>
<p>I have been researching terrorist financing within South Africa for many years. In my book <a href="https://books.google.co.za/books?id=15ZdEAAAQBAJ&source=gbs_book_other_versions">Jihad: A South African Perspective</a>, I unpack the state of terrorist financing in the country using open sources.</p>
<p>The latest US action comes as South Africa is <a href="https://www.moneyweb.co.za/news/economy/hasty-law-amendments-to-avoid-sa-greylisting-face-serious-pushback/">rushing to avert “greylisting”</a>: being placed on the list of countries subject to increased monitoring by the <a href="https://www.fatf-gafi.org/about/">Financial Action Task Force</a>. The inter-governmental task force has identified deficiencies in the country’s policies and efforts to combat money laundering and terrorism financing.</p>
<h2>Risk of greylisting</h2>
<p>The issue will also surface in February 2023 when South Africa is due for another review by the <a href="https://www.fatf-gafi.org/">Financial Action Task Force</a>. This body evaluates steps by governments to prevent the financing of terrorism and money laundering.</p>
<p><a href="https://www.fatf-gafi.org/publications/mutualevaluations/documents/mer-south-africa-2021.html">In its last evaluation</a>, published in October 2021, the task force said South Africa had a strong legal framework against money laundering and terrorism financing. But its implementation had significant shortcomings, including a failure to prosecute criminal cases.</p>
<p>The country has either not complied or only partially complied with <a href="https://www.moneyweb.co.za/financial-advisor-views/what-happens-when-south-africa-is-greylisted/#:%7E:text=The%20report%20concluded%20that%20South,laundering%20and%20terrorism%20funding%20risks.">20 of the body’s recommendations</a> to combat money laundering and terrorism financing. There is thus a strong possibility that South Africa will be added to the greylist of countries that are <a href="https://www.fatf-gafi.org/publications/high-risk-and-other-monitored-jurisdictions/documents/increased-monitoring-october-2022.html">monitored closely</a>.</p>
<p>Greylisting is an attempt by the international community to prevent illicit funds being directed towards terrorist groups. </p>
<p>The task force’s concerns about South Africa aren’t new. In 2009, <a href="https://2009-2017.state.gov/j/ct/rls/crt/2009/index.htm">it warned</a> that the country needed to pay closer attention to regulating trusts, monitoring financial transactions, compliance with anti-money laundering legislation, and enhancing the disclosure of trans-border cash transfers. </p>
<p>The <a href="https://www.timeslive.co.za/sunday-times/business/2022-10-02-sa-cannot-escape-greylisting-says-financial-intelligence-centre-chief/">risk of greylisting</a> suggests that the country has not taken the necessary steps to ensure compliance.</p>
<p>This should hardly come as a surprise to those following the growing footprint of terror groups in South Africa. </p>
<h2>A longstanding problem</h2>
<p>In January 2007 <a href="https://www.washingtonexaminer.com/weekly-standard/pretoria-unguarded?_amp=true">Jonathan Schanzer</a>, a security analyst, reported that two South African cousins – Farhad Ahmed Dockrat, the principal of the Darus Salaam Islamic College in Laudium, Pretoria, and Dr Junaid Ismail Dockrat, a dentist – were proposed for consideration on the UN Security Council’s list of terror suspects. They had already been placed on the US treasury department’s <a href="https://home.treasury.gov/news/press-releases/hp230">list</a> of Al Qaeda’s supporters.</p>
<p>According to papers submitted to the Security Council, Farhad was alleged to be an Al Qaeda “facilitator and terrorist financier”. Junaid, it was claimed, was also an Al Qaeda “financier, recruiter and facilitator”. </p>
<p>Since 2007, the South African government has not done much to ensure that the country does not become a terrorist haven. </p>
<p><a href="https://www.gov.za/anti-corruption">Corruption</a>, general <a href="https://theconversation.com/south-africas-deadly-july-2021-riots-may-recur-if-theres-no-change-186397">lawlessness</a> and a security apparatus <a href="https://theconversation.com/zondo-commissions-report-on-south-africas-intelligence-agency-is-important-but-flawed-186582">focused on party factional battles</a> all account for why terrorist financiers thrive in the country. </p>
<h2>Terrorist financing</h2>
<p><a href="https://books.google.co.za/books?id=15ZdEAAAQBAJ&source=gbs_book_other_versions">My book</a> documents the case of <a href="https://www.govinfo.gov/content/pkg/CHRG-107shrg89957/html/CHRG-107shrg89957.htm">Yassin al-Qadi</a>, a US-designated terrorist financier, who invested US$3 million for a 12% stake in <a href="https://www.bloomberg.com/profile/company/GDRS:US">Global Diamond Resources</a>, which mined diamonds in South Africa. He also controlled New Diamond Corporation, an offshore company that had <a href="https://jamestown.org/program/the-danger-of-terrorist-black-holes-in-southern-africa/">mining interests in the country</a>. </p>
<p>Then there was the case of <a href="https://dbpedia.org/page/Abd_al-Muhsin_Al-Libi">Abd al-Muhsin al-Libi</a>, also known as Ibrahim Tantouche, who set up two Al Qaeda financing fronts – the Afghan Support Committee and the Revival of Islamic Heritage Society. Both operated as charities for orphans. In reality, the orphans were either dead or nonexistent. </p>
<p>As I point out in my book, terrorist financing can be simple or sophisticated. An example of the simple occurred on 25 April 2001 when <a href="https://www.wsj.com/articles/SB1039475895846624273">Mohamed Suleman Vaid</a> was arrested with his wife while attempting to smuggle US$130,000 in local currency across the border with Eswatini. The ensuing police investigation found that he had made this trip 150 times in the previous 18 months, and that there may have been connections to Al Qaeda via a Lebanese businessman.</p>
<p>A more sophisticated example came to light <a href="https://books.google.co.za/books?id=15ZdEAAAQBAJ&source=gbs_book_other_versions">in 2010</a> following a forensic investigation by South Africa’s Department of Trade and Industry. This showed the convergence of corruption, criminality and terrorism. It took advantage of the corruption occurring within South Africa’s Companies and Intellectual Properties Registration Office. </p>
<p>The case involved tax fraud, money laundering, racketeering, organised crime, fraud and siphoning off millions of rands to fund international terrorism. One Pakistani suspect who is now in custody, <a href="https://www.timeslive.co.za/news/south-africa/2010-12-01-tax-fraud-syndicate-member-gets-8-years/">Aliraza Syed Naqvi</a>, specialised in cloning legitimate companies by registering a fake company with the same name as a legitimate company and its own bank account. Monies meant for the legitimate businesses were then diverted to the fake one.</p>
<p>The <a href="https://books.google.co.za/books?id=15ZdEAAAQBAJ&source=gbs_book_other_versions">forensic audit</a> estimated that up to 285,000 fake or dubious companies were created in this way. This scheme would never have occurred had it not been for corruption within <a href="https://www.timeslive.co.za/sunday-times/lifestyle/2010-05-09-corruption-at-cipro-funds-global-terror/">the company registration office</a> itself. The report identified 60 of its officials as being involved in such suspicious activities.</p>
<h2>Addressing the problem</h2>
<p>In this context, the US <a href="https://home.treasury.gov/news/press-releases/jy1084">blacklisting</a> of companies and individuals comes as no surprise. What South Africa needs to do is to implement the Financial Action Task Force recommendations completely and ensure compliance. </p>
<p>Given the <a href="https://www.bbc.com/news/world-africa-61912737">high level of corruption</a> within the ruling party, this will be not be easy. But it needs to be done to deter terrorist financiers and ensure the credibility of the government.</p>
<p>The country has signed and ratified the necessary <a href="https://www.saps.gov.za/resource_centre/acts/downloads/juta/terrorism_act.pdf">counter-terrorism legislation</a>. It is now time to walk the talk. Government needs to work with business, especially banks, to ensure early warning systems are in place.</p>
<p>The judicial system needs to be empowered to develop the necessary specialised capacity to ensure speedy convictions. Finally, the country needs to work with global partners to aggressively respond to this threat.</p><img src="https://counter.theconversation.com/content/194282/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Hussein Solomon 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 has long been seen as deficient in dealing with terrorism financing.Hussein Solomon, Senior Professor and Academic Head of Department: Political Studies and Governance, University of the Free StateLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1064552018-11-12T14:41:14Z2018-11-12T14:41:14ZWhy removal of South Africa’s tax boss is key to Ramaphosa’s chances of success<figure><img src="https://images.theconversation.com/files/244522/original/file-20181108-74763-qfrkn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Tom Moyane has been fired as South Africa’s tax boss on the recommendation of a commission of inquiry. </span> <span class="attribution"><span class="source">Sunday Times/Masi Losi</span></span></figcaption></figure><p>South African President Cyril Ramaphosa has changed the country’s political landscape significantly since he came to power in February 2018. This has strengthened his position to carry out his <a href="https://businesstech.co.za/news/business/281371/south-africa-embarking-on-a-new-path-of-renewal-ramaphosa/">“renewal agenda”</a>. </p>
<p>Immediately after his inauguration, he replaced <a href="https://ewn.co.za/2018/02/27/cyril-ramaphosa-fires-10-ministers-david-mabuza-appointed-deputy">ten cabinet ministers</a>. He also moved those closely allied to his predecessor, Jacob Zuma, to other portfolios. </p>
<p>Since then, he has moved to fix the leadership of the criminal justice system institutions (such as the National Prosecuting Authority and crime intelligence) which were weakened under Zuma. Shaun Abrahams has lost the key position of National Director of Public Prosecutions; this contributes towards bringing Zuma’s hold on the country’s <a href="https://theconversation.com/south-africas-criminal-justice-system-is-on-the-mend-but-its-just-the-beginning-101753">criminal justice system to an end</a>. Zuma faces multiple charges of corruption, fraud and <a href="https://theconversation.com/president-zuma-loses-bid-to-dodge-criminal-charges-but-will-he-have-the-last-laugh-85703">money laundering</a>.</p>
<p>In addition, several Zuma acolytes have lost their positions at the helm of parastatals, which, according to Public Enterprises Minister Pravin Gordhan, were <a href="https://www.news24.com/SouthAfrica/News/gordhan-culture-of-integrity-needed-to-turn-around-soes-report-20181028">“repurposed” to benefit a few</a> under Zuma.</p>
<p>But of all the steps Ramaphosa has taken, his latest – <a href="https://www.timeslive.co.za/news/2018-11-01-ramaphosa-axes-embattled-sars-boss-tom-moyane/">sacking Tom Moyane</a> as the head of the South African Revenue Service (SARS) – is the most significant. The president removed Moyane from the job following recommendations made by a commission of <a href="http://www.thepresidency.gov.za/press-statements/president-ramaphosa-establishes-commission-inquiry-tax-administration-and">inquiry into tax administration and governance</a>. </p>
<p>Moyane’s axing ends one of the last vestiges of Zuma’s continued influence in the country’s governance. It’s also important because Moyane played a critical role in the three focus areas of Ramaphosa’s post-Zuma agenda. These priorities are economic innovation and vitalisation, dismantling the state capture infrastructure and culture, and ridding the governing African National Congress (ANC) of Zuma’s influence. </p>
<p>All three are related. Moyane touched them all.</p>
<h2>Why the tax agency matters</h2>
<p>Zuma succeeded in controlling the criminal justice and <a href="https://www.dailymaverick.co.za/article/2018-04-17-south-africas-damaged-intelligence-system-is-at-a-crossroads/">intelligence system</a>. But he could not achieve the same in the public finance sector. Moyane’s appointment to head the all important Revenue Service was, therefore, a breakthrough for him. </p>
<p>There are two ways in which revenue services can be used to nefarious ends. The first is that, as part of its job of collecting revenues, the service gathers sensitive personal information on individuals. The manipulative potential of this information is invaluable for politicians. </p>
<p>The second is that controlling the tax collection process opens the door to officials exploiting it as a patronage instrument. For example, it’s possible to protect politicians and others who do not comply with tax laws. </p>
<p>Before Moyane took over the revenue service it played a key role in combating organised crime. This was particularly so in the tobacco and cigarette industry, which is linked to wider and <a href="http://www.jonathanball.co.za/component/virtuemart/new-releases-1/2018-releases/death-and-taxes-how-sars-made-hitmen-drug-dealers-tax-dodgers-pay-their-dues-detail?Itemid=6;%20http://www.nb.co.za/books/20140">international criminal networks</a>. Moyane dissolved the special units that did this investigative work. </p>
<p>How did Moyane come to play this crucial role?</p>
<p>Moyane has been a career public official. He served in the <a href="https://nationalgovernment.co.za/units/view/187/state-information-technology-agency-sita">State Information Technology Agency</a> – the government’s main IT agency that manages big networks, such as those for paying social grants that benefit 17 million people. He also worked in the Government Printing Works and the Department of Trade and Industry. He headed the Department of Correctional Services before becoming the <a href="https://www.politicsweb.co.za/party/jacob-zuma-appoints-tom-moyane-new-sars-commission">National Commissioner of the Revenue Service</a> in September 2014.</p>
<p>More significant, however, is his political background. He was in exile in Mozambique and Guinea-Bissau. He studied BSc Economics at the Eduardo Mondlane University in Maputo. During his <a href="https://www.politicsweb.co.za/news-and-analysis/jacob-zuma-in-exile-three-unexplored-issues">exile years</a>, dating back to 1976, he and Zuma became very close friends. </p>
<p>Maputo (and Swaziland) played a very important role in forming friendships and <a href="https://www.politicsweb.co.za/news-and-analysis/jacob-zuma-in-exile-three-unexplored-issues">political alliances for Zuma</a>. He appointed several of these friends to key positions during his presidency. </p>
<p>It’s likely that Moyane was handpicked directly by Zuma and that he wasn’t put into the job by the ANC as he has never been a member of the party’s National Executive Committee – its highest decision-making body in between national conferences. </p>
<h2>Moyane’s exit</h2>
<p>It’s uncertain if Moyane was acting mainly to protect or promote Zuma’s interests at the South African Revenue Services, or whether he was simply a willing agent for other interests, mainly in the private sector, that coincided with Zuma’s interests. </p>
<p>Also unclear is the revenue service’s exact role in <a href="https://mg.co.za/article/2018-09-14-00-definition-of-state-capture">state capture</a> under him, by exploiting its position as the best placed state institution to monitor indviduals’ and companies’ financial flows. </p>
<p>The Nugent commission of inquiry will hopefully provide <a href="https://ewn.co.za/Topic/Nugent-Commission-of-Inquiry">more clarity</a> on this, in its final report expected at the end of November.</p>
<p>Evidence before the commission and several media exposes have provided important insights into Moyane’s <a href="https://www.businesslive.co.za/bd/national/2018-10-17-read-judge-robert-nugents-full-interim-report-of-the-inquiry-into-sars/">destructive tenure</a> as SARS head. </p>
<p>This makes his departure a key prerequisite for restoring SARS to being the effective revenue collector and the centre of excellence in government it was before Zuma appointed Moyane to its helm. The importance of this to Ramaphosa’s economic recovery plan cannot be overemphasised.</p><img src="https://counter.theconversation.com/content/106455/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze 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>Moyane’s axing ends one of the last vestiges of Zuma’s continued influence in the country’s governance.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/943232018-04-04T16:26:05Z2018-04-04T16:26:05ZWhy Zuma’s trial matters for South Africa’s constitutional democracy<figure><img src="https://images.theconversation.com/files/213161/original/file-20180404-189824-15g9qrb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Former South African president Jacob Zuma stands accused of racketeering, fraud, money laundering and corruption. </span> <span class="attribution"><span class="source">EPA-EFE</span></span></figcaption></figure><p>Former South African president Jacob Zuma’s <a href="https://www.reuters.com/article/us-safrica-politics-zuma/south-africas-zuma-to-appear-in-court-on-april-6-on-graft-charges-idUSKBN1H2252">court appearance</a> carries huge significance for the country. That’s because his criminal trial is not merely about public outrage at <a href="https://www.news24.com/SouthAfrica/News/download-the-full-state-of-capture-pdf-20161102">state capture</a> and corruption in high political offices. Nor is it just about Zuma facing the consequences of his abuse of office. Or the criminal justice implications of a former president being charged with a series of crimes. </p>
<p>Its broader significance is that Zuma’s court appearance affects many of the most important philosophical foundations of South Africa’s constitutional democracy. The charges against him are immensely important for the foundations of the state. They also matter for democracy and for the constitutional social contract.</p>
<p>This is because the legitimacy of any elected public representative is based on the mandate they receive at a general election. That mandate is the product of a contract between voters and public representatives. Voters cede part of their most fundamental democratic rights of <a href="https://theconversation.com/the-end-of-representative-politics-41997">public participation</a> to the representatives. In exchange, and as a cornerstone of representative democracy, elected representatives must account for their actions to Parliament and to the voters.</p>
<p>If a public representative deviates from that mandate – or abuses it for other purposes or his own interest, or worse even for criminal purposes – then the foundation of representative democracy is violated. If abuses become widespread, or if a person in a key public position violates this contractual relationship, the foundation of representative democracy is under threat.</p>
<p>Public opinion in South Africa accuses Zuma of such a violation. The public also expects him to take political responsibility for it. In this context, his prosecution will amount to a public process to rectify and remedy his undemocratic and <a href="http://www.sabcnews.com/sabcnews/concourt-says-parliament-failed-hold-zuma-accountable-nkandla/">unconstitutional behaviour</a>.</p>
<p>Zuma’s mere appearance in court, and the accompanying public humiliation, should act as a reprimand for his abuse of the public’s trust in him as elected president. In essence, it could be seen as a process to restore the constitutional relationship between the public and elected representatives.</p>
<h2>State capture and state institutions</h2>
<p>Although his charges don’t address it directly, <a href="https://pari.org.za/betrayal-promise-report/">state capture </a> is a subtext in his court appearance. State capture – the alleged undue influence of Zuma’s friends, the Gupta family, in the running of the state for private gain – has caused serious institutional degradation in the public sector. The works of scholars Daron Acemoglu and James A. Robinson emphasise the importance of <a href="http://www.loot.co.za/product/james-a-robinson-why-nations-fail/dkdr-2320-g450?PPC=Y&gclid=EAIaIQobChMI9Iygw6qe2gIVTrHtCh06uQnGEAAYASAAEgLqkPD_BwE&gclsrc=aw.ds">strong and capable state institutions</a>. </p>
<p>Once institutions are threatened or undermined, states start to malfunction and constitutional crises develop. Institutions are associated with a number of constitutional principles. These include the <a href="https://www.parliament.gov.za/who-we-are">separation of powers</a>, <a href="https://researchspace.ukzn.ac.za/xmlui/handle/10413/9769">judicial independence</a>, a state’s responsibility to provide security and services as well as to collect taxes. Once state institutions are weakened, it becomes impossible to implement and protect constitutional rights.</p>
<p>Zuma’s infiltration of state institutions, such as the criminal justice system, the revenue service, the intelligence institutions and enterprises such as the power utility Eskom, almost broke the institutional spine of the state. This would have happened had it not been for institutions such as the Public Protector and the National Treasury, the Reserve Bank and the judiciary. </p>
<p>Part of Zuma’s legacy also includes the state’s fiscal capacity being seriously compromised as well as state institutions such as the Hawks or National Prosecuting Authority. </p>
<p>It’s necessary for him to account for all, in public.</p>
<h2>The law and moral values</h2>
<p>The <a href="http://www.latimes.com/world/africa/la-fg-south-africa-zuma-charges-20180316-story.html">criminal offences</a> that Zuma faces – including corruption, fraud, money laundering or racketeering – are not only crimes. They’re also violations of a society’s moral value system.</p>
<p>A legal system is intended to protect a society’s value system. It’s therefore an essential aspect of any <a href="http://www.justice.gov.za/alraesa/conferences/2005uganda/ent_s3_waliggo.pdf">constitutional democracry</a>.</p>
<p>In this light, Zuma’s trial is not only about whether he did, or didn’t, commit certain crimes. It will also serve to reaffirm the moral values that direct the lives of public representatives. Corruption, for example, harms the relationship between the voter and public representative and the electoral mandate that regulates that relationship. It challenges the very essence of representative democracy.</p>
<p>A former president on trial will be a strong reminder that political power is not supreme, that it cannot guarantee uncensored immunity and privilege. A trial will send the message that unbridled power comes with high risks and huge costs. </p>
<p>Luckily, the South African legal system does not allow for presidential immunity. It can thus avoid the spectre of autocratic executives who <a href="https://repository.up.ac.za/bitstream/handle/2263/25163/05chapter5.pdf?sequence=6">escape punishment for corruption</a>.</p>
<h2>A message for the private sector</h2>
<p>Zuma’s trial also sends a message to the private sector – that it’s conduct is judged by the same moral values as those used for public representatives. State capture collusion by private sector entities equally undermines the constitutional dispensation. </p>
<p>Hopefully, Zuma’s case will motivate business executives to reconsider how they relate to government, what form of lobbying is acceptable, how they participate in procurement processes, and how they deal with conflicts of interest.</p>
<p>It’s very important that the Zuma case is approached with utmost professionalism by the prosecuting authority. All the principles of the rule of law should be on display. No special treatment should be considered and no overt political agendas should be tolerated from any side – either to please or to humiliate.</p><img src="https://counter.theconversation.com/content/94323/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze 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 Africans expect former president Zuma him to take responsibility and remedy his undemocratic and unconstitutional behaviour.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/857032017-10-13T17:16:36Z2017-10-13T17:16:36ZPresident Zuma loses bid to dodge criminal charges. But will he have the last laugh?<figure><img src="https://images.theconversation.com/files/190191/original/file-20171013-3567-1u0fxtd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's Supreme Court of Appeal has upheld a High Court Decision to reinstate almost 800 criminal charges against President Zuma.</span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p><em>South Africa’s Supreme Court of Appeal has dismissed President Jacob Zuma’s and the National Prosecuting Authority’s <a href="https://www.moneyweb.co.za/news/south-africa/sca-upholds-ruling-to-reinstate-corruption-charges-against-zuma/">appeal</a> against an earlier decision by the North Gauteng High Court that a decision to dismiss criminal charges against Zuma in <a href="http://www.politicsweb.co.za/news-and-analysis/why-i-decided-to-drop-the-zuma-charges--mpshe">2009</a> was irrational. Then, Zuma had claimed that the charges against him were part of a political conspiracy to prevent him from becoming president. But the North Gauteng High Court, in a case brought by the opposition Democratic Alliance, <a href="https://www.dailymaverick.co.za/article/2016-04-29-high-court-on-zumas-corruption-charges-not-the-end-but-damning/#.WeDICVuCzIU">ruled last April</a> that the charges of corruption, money laundering and racketeering against Zuma should be reinstated. The Conversation Africa’s Politics and Society Editor Thabo Leshilo spoke to constitutional expert law Pierre de Vos about the latest decision.</em></p>
<p><strong>What are the implications of the judgment?</strong></p>
<p>The <a href="http://www.politicsweb.co.za/documents/da-vs-zuma--the-npa-full-judgement">judgment</a> means that the original decision by the North Gauteng High Court to charge President Zuma stands and – in the absence of another legal move – the <a href="https://www.npa.gov.za/">National Prosecuting Authority</a> is legally obliged to implement it. </p>
<p>This means Zuma will be prosecuted unless <a href="http://www.news24.com/SouthAfrica/News/10-things-you-didnt-know-about-new-NPA-head-Shaun-Abrahams-20150708">Shaun Abrahams</a>, the national director of public prosecutions, decides again to drop the charges (but on different legal grounds). The judgment also contains scathing criticism of the National Prosecuting Authority and its senior leadership.</p>
<p>It raises questions about the integrity of senior National Prosecuting Authority leaders and of the independence and impartiality of the prosecutions body. The judgment also notes that it was illegal for Zuma’s legal team to obtain and share the intercepted communications – the <a href="https://www.timeslive.co.za/politics/2017-10-13-recounting-eight-years-of-the-spy-tapes-saga-as-zuma-returns-to-court/">so called spy tapes</a> – which raises questions about why no one (including Zuma’s lawyer, Roger Hulley) was ever charged for breach of the law.</p>
<p><strong>What happens now?</strong></p>
<p>Zuma’s lawyers will probably make another submission to Abrahams to argue that the charges must be dropped. This may include arguments that too much time has passed since the alleged crimes were committed or that new evidence has come to light that raises questions on whether the NPA has a winnable case against the President. </p>
<p>The Appeals Court left open whether Abrahams has the legal power to review a decision by the National Director of Public Prosecutions or not. If Abrahams does have this power, and if he again drops the charges, it will probably be the end of the matter. </p>
<p>If the charges are not dropped, the NPA will proceed with the prosecution, at which point Zuma’s lawyers will almost certainly approach the court to ask for a permanent stay of prosecution. It is not practically possible for Zuma to appeal to the Constitutional Court as his lawyers already conceded before the Supreme Court of Appeal that the decision to drop the charges was <a href="http://www.dispatchlive.co.za/politics/2017/09/14/zuma-concedes-decision-withdraw-corruption-charges-irrational/">invalid</a>.</p>
<p><strong>What are Zuma’s options?</strong></p>
<p>As the <a href="http://www.justice.gov.za/sca/">Supreme Court of Appeal</a> points out in its judgment, Zuma and his lawyers have done everything in their power to prevent a situation where the president would have his day in court and would have to answer to the charges levelled against him.</p>
<p>This is why the president and his lawyers will continue to try to stop the prosecution by submitting new arguments to the National Prosecuting Authority on why the charges should be dropped. And, if that does not work, to try and convince the court that his prosecution must be stopped permanently because for some or other reason he could not receive a fair trial.</p>
<p><strong>Can a sitting president be put on trial? Does South Africa have a precedent for it?</strong></p>
<p>South Africa’s sitting president can be charged. There is no provision in the country’s <a href="https://www.gov.za/DOCUMENTS/CONSTITUTION/constitution-republic-south-africa-1996-1">constitution</a> – or in ordinary legislation – that stands in the way of this happening.</p>
<p>The South African parliament could pass a law that changes this and protects a sitting president from criminal liability. But this wouldn’t get very far as such a law would be unconstitutional. It would be breach of the Rule of Law as developed by the <a href="http://www.constitutionalcourt.org.za/site/home.htm">South African Constitutional Court</a> and it would also be in breach of section 9(1) of the Constitution which states that:</p>
<blockquote>
<p>Everyone is equal before the law and has the right to equal protection and benefit of the law.</p>
</blockquote>
<p>No sitting president has ever been charged with a criminal offence in South Africa. President Nelson Mandela was required to testify in a civil (as opposed to a criminal) case, after which the Constitutional Court imposed limits on when a sitting president would be required to testify in a civil case. </p>
<p>It would be unprecedented for a sitting president to face criminal charges and be prosecuted.</p><img src="https://counter.theconversation.com/content/85703/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Pierre de Vos receives funding from the National Research Foundation. He is affiliated with the Council for the Advancement of the South African Constitution. </span></em></p>The Supreme Court of Appeal judgment means that South Africa’s president must be prosecuted - unless the national director of public prosecutions decides again to drop the charges against him.Pierre de Vos, Claude Leon Foundation Chair in Constitutional Governance, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/424252015-05-27T11:05:46Z2015-05-27T11:05:46ZFIFA meeting begins with a bang as arrests put corruption top of the agenda<p>FIFA’s annual meetings are normally formulaic affairs where everything happens to plan: grand speeches are held, pats on the back are summarily dished out and, most importantly, <a href="https://theconversation.com/uk/topics/sepp-blatter">Sepp Blatter, FIFA’s president</a>, gets what he wants. This year’s annual congress, currently taking place in Zurich, looks like being altogether different.</p>
<p>Early on Wednesday morning several members of FIFA’s powerful executive committee were <a href="http://www.theguardian.com/football/live/2015/may/27/fifa-officials-arrested-on-corruption-charges-live">taken from their lodgings</a>, the salubrious Baur au Lac hotel in Zurich, and arrested with a view to being <a href="http://www.nytimes.com/2015/05/28/sports/soccer/fifa-officials-arrested-on-corruption-charges-blatter-isnt-among-them.html">extradited to the US on corruption charges</a>. Blatter was not arrested, and is “not involved,” said a FIFA spokesman. According to <a href="http://www.justice.gov/opa/pr/nine-fifa-officials-and-five-corporate-executives-indicted-racketeering-conspiracy-and">US authorities</a>, the charges range from racketeering to money laundering and appear to largely centre round the <a href="http://www.concacaf.com/">affairs of Concacaf</a> – one of the six regional bodies that come together to govern the world game – and how their officials dealt with marketing rights, advertising contracts and media deals surrounding a number of Concacaf tournaments. </p>
<p>Intriguingly, <a href="http://www.justice.gov/opa/pr/nine-fifa-officials-and-five-corporate-executives-indicted-racketeering-conspiracy-and">the US indictment</a> also mentioned the bidding process to host the 2010 World Cup. <a href="https://www.news.admin.ch/message/index.html?lang=en&msg-id=57391">Swiss authorities have also seized electronic data and documents</a> from FIFA’s head office in Zurich as part of a probe into suspected “criminal mismanagement and of money laundering in connection with the allocation of the 2018 and 2022 Football World Cups”.</p>
<h2>House of Scandal</h2>
<p>FIFA spokesman Walter de Gregorio has tried his best to see the positive in the drama of rich and powerful men being hauled from their beds and threatened with serious charges.</p>
<p>He <a href="http://www.theguardian.com/football/live/2015/may/27/fifa-officials-arrested-on-corruption-charges-live">told reporters</a>: </p>
<blockquote>
<p>This for FIFA is good. It is not good in terms of image or reputation, but in terms of cleaning up, this is good… It is not a nice day, but it is also a good day.</p>
</blockquote>
<p>He also said that Blatter, although relaxed, “is not dancing in his office”. </p>
<p>In terms of FIFA, allegations of corrupt practices <a href="https://theconversation.com/fifa-sheds-sponsors-as-it-heads-into-a-dangerous-decade-36675">are clearly nothing new</a>. Jack Warner, a long-time member of the FIFA executive committee and the principle mover and shaker in Concacaf (Confederation of North, Central America and Caribbean Association Football) resigned in 2011 amid a number of corruption allegations (which he has vociferously denied). FIFA ceased internal investigations following his “self-determined” resignation. “<a href="http://www.fifa.com/about-fifa/news/y=2011/m=6/news=fifa-vice-president-jack-warner-resigns-1455834.html">The presumption of innocence is maintained</a>”, a release from the organisation said. Meanwhile <a href="http://www.theguardian.com/football/2014/mar/18/jack-warner-fifa-world-cup-2022-payment-allegations">Warner himself referred</a> to a witchhunt against him.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=501&fit=crop&dpr=1 754w, https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=501&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/83085/original/image-20150527-4844-1hxod93.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=501&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A blancmange, in repose.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/mail2pete/252689730/in/photolist-bEpHUw-jANzzw-9YGMf3-9YDRqD-9YDUtD-9YGN97-9YDSXP-9YDRZg-9YDQSP-9YDQfR-9YDPsr-9YGHqh-9YDMNa-9YGFNb-9YDLr4-9YGEwC-2UWAU-8HJEax-4wPwev-2VxoSF-4v95Bx-4vdag1-4v956Z-ok6Ru-4MkUkM-mv1A5x-9YGNE1-7F2qXk-6aeM1r-7F56oY-bLSf9F-9tXMSy-dTgcg3-9RkUqf-bPre4g-2KHCH-7WySXZ-5ZasuK-a4LUjh-c1QFVL-4NXcEp-gdHwu-5w7QZE-ar1nem-rRboij-DPF9q-ar1kWq-ar1keE-4dSmza-6r96EN">Peter Brown</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>FIFA has done what many organisations facing fundamental corruption and governance challenges try to do: reform themselves without doing anything about the culture within which the new institutions are set. Defining, let alone changing, culture might well be described as akin to pinning blancmange to a wall. But awareness of the need to follow rules and regulations – and to be transparent about how decisions are made, how resources are allocated and how allegations of inappropriateness are going to be dealt with – are nothing but the basics.</p>
<p>In June 2011, FIFA launched a governance reform process. The notions of transparency and zero tolerance were, so it was announced, to be at the core of a new institutional framework. FIFA – coaxed and cajoled by the respected Swiss legal expert Mark Pieth – <a href="http://www.fifa.com/aboutfifa/organisation/bodies/standingcommittees/committee=1882034.html">introduced a two-tier ethics committee</a> to ensure that the actions of FIFA officials corresponded to the highest moral and ethical standards. </p>
<h2>Blatter battered</h2>
<p>FIFA’s inability to deal with the negative fall-out from the bidding processes for the <a href="https://theconversation.com/promises-promises-but-fifa-just-cant-admit-it-has-a-problem-34251">2018 and 2022 World Cups</a> laid bare how ineffective these processes were. Failed anti-corruption attempts are indeed littered with the corpses of impressive-looking oversight bodies and FIFA, it quickly became clear, was failing spectacularly. </p>
<p>FIFA <a href="http://edition.cnn.com/2014/12/17/sport/football/michael-garcia-resigns-fifa-football/">didn’t trust independent thinkers</a> enough to allow them to ask difficult questions, it didn’t feel secure enough to bring in genuinely transparent procedures. This is not the terrain for effectively tackling deep-rooted processes of corruption. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=381&fit=crop&dpr=1 600w, https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=381&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=381&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=479&fit=crop&dpr=1 754w, https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=479&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/83082/original/image-20150527-4850-n52x54.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=479&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Qatar football fans fly the flag.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/dohastadiumplusqatar/6062224850/in/photolist-8XYE6K-8XYDHc-8XYC9e-8XSmYm-8YeGFr-akqWzw-d8dY3W-bqyRhu-9W52Nt-j3ewRw-6YxSoB-iiGvaP-6YBSXG-aFHvGt-grBs3f-9mZ7Lk-raMCUi-pTXFUA-j2Tsye-j2Z6gv-aFHLhD-aW3RK6-aVMqq4-aVLjBD-bHLFeF-98Je58-maZvEt-5Sk5g2-eep8se-9VL3y8-6YBSVo-oD9Toh-kvrjLM-iiFJLm-9LxFWt-pXS4n5-95zmBq-aFHU7z-ajY6o1-ajVjTt-aeGuf7-aHtkT6-cLhYF5-8FLCeK-ajVjLR-ajY6Bb-dPBbFy-dPBbcU-ajY6Hd-ajY73S">Doha Stadium Plus Qatar</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/">CC BY</a></span>
</figcaption>
</figure>
<p>Wednesday’s events in Switzerland may indeed prove to be a watershed moment. The sight of FIFA officials being arrested, and the prospect of more and more evidence about the culture that pervaded FIFA becoming apparent may well force the organisation to change. </p>
<p>As head of FIFA, Blatter has to recognise that the old ways of doing things are out-of-date and, indeed, wholly inappropriate. It is what he does that will be the defining feature of not just the rest of this FIFA annual meeting, but also how the organisation moves to tackle corruption. </p>
<p>Football is not now a game played by a few kids in back streets – it is an outsized, cut-throat global business and it needs to be regulated. As things stand, that isn’t happening. Only when transparency, accountability and a preparedness to allow genuine external oversight are the watch-words of all FIFA’s activities will sceptics really start to believe in the organisation again.</p><img src="https://counter.theconversation.com/content/42425/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Daniel Hough 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>Football’s governing body and its President Sepp Blatter are used to annual meetings which run like clockwork. US and Swiss police have made sure this time it’s different.Daniel Hough, Professor of Politics, University of SussexLicensed as Creative Commons – attribution, no derivatives.