Opinionista Muhammad Khalid Sayed 24 July 2018

Unstitching the culture of criminal impunity

In South Africa, our failure to hold one another to account for the most heinous crimes in our past – not to exact revenge, but to facilitate justice and healing – can be read today in our crime statistics, in gender violence, and in grand corruption in our private and public sectors.

Twenty-one years ago last week, notorious Cape Town security policeman Jeff Benzien appeared before the Truth and Reconciliation Commission to apply for amnesty in respect of a host of human rights violations.

Characterising himself as a torture expert with particular expertise in the rapid extraction of information from political detainees immediately after their arrest, chilling photographs of Benzien showing commissioners how he dealt with freshly captured political detainees by suffocating them with wet bags were published across the world. He also used electricity.

Photo: Jeff Benzien during the TRC hearings. Benny Gool

Benzien wasn’t just a torturer; he was a killer, too. He was granted amnesty in respect of the 1987 shooting death of the Bonteheuwel activist, Ashley Kriel, which he described as having occurred by mistake during a struggle as he tried to arrest the young man. The commission noted that he had lied at Kriel’s inquest.

Kriel’s family have never accepted Benzien’s versions of events, and are convinced Ashley was deliberately murdered. A few years ago, an eminent forensic investigator hired by the family said that in his view Kriel was shot in the back from some distance.

The murder of Ashley Kriel raises a dilemma for post-apartheid South Africa.

The TRC was established in 1996 for good reason. It was a mechanism to enable the then-infant democracy to confront and begin to deal with the evil in its past – with the granting of amnesty a central pillar of the exercise. In order to qualify for amnesty, applicants had to satisfy various conditions. Chiefly, they had to demonstrate that they were telling the truth about what they did, that they acted in the context of a politically motivated objective and command structure, and that their actions were commensurate with their objectives.

Which begs the questions: What about those who did not apply for amnesty, hoping they’d manage to avoid detection? What about those whose amnesty applications were declined? And what about those who received amnesty, but are subsequently proven to have lied?

The simple answers to these questions are: Investigate and prosecute. Or, reopen inquests, as was done in 2017 in the case of Ahmed Timol, where the apartheid inquest finding of suicide while under gentlemanly interrogation was replaced by one of murder by the security police. Demonstrate to the families and the nation that the culture of criminal impunity created by the apartheid regime has been replaced by one of justice, dignity and accountability. In doing so, we acknowledge the heroes of our liberation struggle who paid the highest price for our future.

Ashley Kriel’s killer, and those under whose instructions he acted, are not the only ones who “qualify” for scrutiny and action by the National Prosecutions Authority in the post-TRC environment. So do the killers and engineers of Steve Biko’s murder, and those of the Cradock Four, Neil Aggett, Imam Haroun, Coline Williams and Robert Waterwitch … it’s a long list. The TRC recommended 300 cases for further investigation, and there are many others that the commission did not engage.

In the 1990s, New York City’s right-wing mayor Rudy Giuliani popularised the “broken window theory” as a response to crime. The thesis of the theory is that by clamping down on visible signs of crime, antisocial behaviour and disorder, an environment is created that is not conducive to further crime.

In South Africa, our failure to hold one another to account for the most heinous crimes in our past – not to exact revenge, but to facilitate justice and healing – can be read today in our crime statistics, in gender violence, and in grand corruption in our private and public sectors.

There has been massive societal focus on the head of our prosecution services, Shaun Abrahams, for his perceived tardiness in prosecuting State Capture. His fitness to hold office has been brought into question, and is awaiting the judgment of our highest court.

Conversely, there has been virtually no pressure on Abrahams to prosecute Steve Biko’s killers. Why not? Surely, if they are guilty of criminality, society should demand to see the Gupta brothers AND the likes of Jeffrey Benzien and members of his command structure getting to know each other – in prison?

These questions have more complicated answers, rooted in the stay-out-of-jail-forever cards brandished by Stratcom’s dogs of war. Prosecute us and we unleash ill-gotten secrets about members of the liberation movement whom we managed to compromise, some of which may be true, they say.

As young South Africans, we understand that compromises were necessary to create a stable platform for common purpose at the dawn of democracy from which societal transformation (spatial, social, psychological, political and economic) could peacefully unfold.

But 24 years down the line people are asking questions about long-term costs. The family and comrades of Ashley Kriel are asking: Surely the lies about Ashley’s murder cannot be the price we are expected to pay?

There are some encouraging signs. Besides the Timol inquest in 2017, the family of the young Soweto activist Nokuthula Simelane, who disappeared after her arrest 34 years ago, are one step closer to justice following a High Court ruling in June that the police should pay for the defence of her kidnappers and alleged murderers. But encouraging signs are insufficient; they do not facilitate sustainable justice or address the broader societal issue of impunity.

A few weeks ago, in commemoration of the 31st anniversary of his murder, the Western Cape ANC Youth League, Cosatu and MKMVA accompanied members of Ashley Kriel’s family to his grave site. The family continues to bear an intolerable pain in its heart at what they regard as the abandonment of justice for Ashley.

Unpalatable information and disinformation cannot hold the truth and justice at bay forever. Nations built on foundations of injustice inevitably flounder. DM

Khalid Sayed is the chairperson of the Western Cape ANC Youth League.

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