This blog post forms part of a debate between Progressive Professionals Forum president Mzwanele Manyi and Huffington Post SA editor-at-large Ferial Haffajee, on the constitutionalism and implementation of the Financial Intelligence Centre Amendment Bill. You can read Ferial's post here. - blogs editor.
From the outset let me start by making it abundantly clear that scare tactics like Gupta-gevaar simply do not work with me. I am a firm believer in the constitution with its imperfections and I am a creature of rule of law, justice and fairness.
People like me who are serial victims of trial by white monopoly capital (WMC) media are able to see the hypocrisy of mainstream media and its agenda to promote WMC interests. Your darling, Advocate Thuli Madonsela FAILED in her State of Capture dossier to arrive at adverse findings against the Guptas and as we speak, there is no court of law that has found Guptas guilty of any crime. Only mainstream WMC media and banks have tried them and found them guilty in the courts of newsrooms and boardrooms.
The constitution of South Africa says the country belongs to all who live in it, and everyone is equal before law, but clearly none of this applies to the Guptas, according to WMC mainstream media and their supporters.
On the Financial Intelligence Centre Amendment bill (FIC bill), the Progressive Professionals Forum position has been reduced to a "Gupta-supporting Manyi" issue. Again, this is a tired strategy to try to isolate and destroy vocal opponents of WMC. I must hasten to add that this WMC inspired strategy will continue to fail.
The PPF position on the FIC Bill has been very clear and consistent. Except for the dissolution of the Counter Money Laundering Advisory Council in the objects of the bill, the PPF supports ALL the objectives of the bill.
Parliament should not surrender to the banks the rights and constitutional obligations of the security cluster to protect the citizens of this country from any illicit financial dealings and terrorism activities.
The single issue that PPF has with the FIC Bill is how it opens the door for unconstitutional applications by agents who are not duly appointed law enforcement.
The constitutionality of these amendments must be subject to a test at the Constitutional Court if the National Assembly insists on passing this bill without the necessary amendments to address these concerns.
Parliament should not surrender to the banks the rights and constitutional obligations of the security cluster to protect the citizens of this country from any illicit financial dealings and terrorism activities.
Banks should not be allowed to be prosecutors, judges and executioners at the same time. Banks do not have the moral authority to be entrusted with this responsibility.
Some of the remedies should include the following:
- FIC inspectors must be vetted by security agencies before getting access to the financial information of the citizens.
- FIC inspectors should collate whatever information as required by the law, but where criminal activity is detected, they must give that information to appropriate law enforcement authority and NOT to the accounting authority institutions, which are the banks.
- Banks should NOT be allowed to be private courts. We have real courts.
- Section 205(3) of the Constitution empowers the South African Police Service (SAPS) to be the only authority that can investigate and combat crime, and this clause must not be undermined. Money laundering, corruption and the financing of terrorism are all criminal acts and thus are in the competence of SAPS.
- The prominent influential person (PIP) clause goes beyond the requirements of the Financial Act Task Force (FATF), which is concerned only with Politically Exposed Persons (PEPs).
- The selection of PIPs by the Bill is arbitrary and designed to target opponents of WMC, as such it must be scrapped to ensure full compliance with FATF recommendations. The inclusion of PIP's is an affront to equality before the law.
- The exclusion of bank officials and various financial services executives from the list of PIPs is a prominent example of the unfair, unjust, arbitrary and discriminatory and biased nature of this bill. Black business has evidence that ONLY Black people, particularly Africans, are the victims of account closures. In addition, the inclusion of judges in the list of PIPs may have unintended consequences of tampering with the objectivity of judges, particularly when they are dealing with matters affecting banks.
- The bill must respect the security cluster law enforcement agencies as listed in the National Intelligence Act, No 38 of 1994 and NOT seek to create parallelism.
- The dissolution of the Counter Money Laundering Advisory Council as provided for in the current 2001 FIC Act will remove objectivity and centralise power within the National Treasury and thus should be rejected. Furthermore, this dissolution will remove the necessary operational response by security agencies and relegate it to loosely-defined policy collaboration courtesies which are devoid of executive authority by appropriate security agencies.
- Serious consideration should be given to withdrawing this bill for a proper reconceptualisation and rearrangement of executive authority mandates to avoid parallelism.
In conclusion, government should not be rushed to pass this bill for two reasons, money laundering, corruption and terrorism are already criminal offences that are prosecutable today and thus no impression should be created that there is a vacuum on the law enforcement side.
Notwithstanding the various periodic updates that our financial institutions should provide to FATF, the bottom line is that the next inspection by FATF is only in October/November 2019.
PPF is of the view that this big rush by the banks to have this law passed without delay is informed by the fact that the banks want to shield themselves from their unlawful conduct of implementing the bill even before it is promulgated into law.