The South African government has a duty to inform citizens, in general, and the families and friends of victims, in particular, of the nature of the “deal” that has led to the non-prosecution of perpetrators of heinous crimes committed by members of apartheid security forces.
Citizens have a right to know, not only the terms of the deal, but the reasons why leaders of government were willing to forego justice with respect to the murders of courageous and committed comrades, colleagues and friends. And, what impact this has had, and continues to have, on where South Africa is today.
The reason citizens should know is because of the costs of the deal. The cost in impunity for the law that is our daily bread today. The cost of condemning victims’ families to more suffering as they wait for justice, that would never be done. The cost of besmirching the integrity of South Africa’s Truth and Reconciliation Commission, undermining the essence of its operational strategy and ignoring its recommendations. The costs of inequality, injustice and indignity for millions of people…
As things stand, citizens are left to join the dots between an affidavit deposed by former head of prosecutions advocate Vusi Pikoli in 2015 and a recent editorial published on the website of the foundation of the last apartheid president FW de Klerk.
In his affidavit, Pikoli said he was instructed not to prosecute apartheid-era cases, and believed his pursuit of these cases was among the reasons for his suspension by then-president Thabo Mbeki: “I confirm that there was political interference that effectively barred and delayed the investigation and possible prosecution of the cases recommended for prosecution by the TRC,” he said.
The FW de Klerk Foundation confirmed that in terms of an “informal agreement” between the ANC leadership and former operatives of the pre-1994 government the NPA suspended its prosecutions of apartheid-era crimes.
According to the foundation, “amnesty was, from the outset, a sine qua non [an essential condition] for the negotiations between the ANC and the National Party government”.
Trouble is, those who clinched the deal didn’t share the news with the people. They didn’t inform victims’ families to give up their pursuit of justice. And they didn’t let Archbishop Desmond Tutu and his fellow TRC commissioners in on their secret.
Instead, they presumably banked on the secret (together with its rationale), organically burying itself as perpetrators died of old age.
De Klerk was forced to the surface due to the tenacious pursuit of justice by a nephew of the murdered anti-apartheid detainee Ahmed Timol, Imtiaz Cajee. This week (October 27) is the 50th anniversary of Timol’s death.
Cajee’s persistence ultimately forced the National Prosecuting Authority (NPA) to reopen the inquest into Timol’s death and convert the finding of suicide to murder – and then charge ageing former security policeman João Rodrigues for the murder.
The De Klerk Foundation published its editorial in response to the NPA welcoming the judgment of the Supreme Court of Appeal dismissing Rodrigues’ application for a permanent stay of prosecution, and committing to prosecute perpetrators of apartheid-era crimes.
The Timol case was among more than 300 that the TRC recommended for further investigation with the view to prosecution. The TRC also made a raft of recommendations with respect to reparations, and narrowing social and economic inequality through mechanisms including a wealth tax.
South Africa could have chosen the path of a general amnesty or Nuremberg-style trials to deal with the significant demons from its apartheid past. Instead, it chose the revelatory and healing approach of a public commission, before appearing to abandon the project altogether.
Though best known for its role of creating public platforms for the telling of the true South African story from the perspectives of victims of human rights violations, the commission was, critically, a mechanism to grant amnesty to perpetrators of apartheid violence in exchange for their telling the truth. To stare the past in the eye – however ugly – and begin the process of moving forward.
Even so, granting amnesty was not unconditional. In order to qualify, applicants had to submit individual applications, proving, among other things, that they acted with political motives and had made a full disclosure.
As Therese Abrahamsen and Hugo van der Merwe described in a research report for the Centre for the Study of Violence and Reconciliation titled Reconciliation through Amnesty? Amnesty Applicants’ Views of the South African Truth and Reconciliation Commission: “The TRC’s amnesty process was a unique innovation, breaking with the international pattern of blanket amnesty and presenting a limited and conditional amnesty in relation to human rights violations.
“While the constitutional negotiations had secured the guarantee of an amnesty for political crimes, the legislators had devised the truth-for-amnesty provision in order to secure some form of accountability, and to feed into the broader reconciliation goals of the TRC.”
It was a contested process. Victims’ families had the opportunity to oppose amnesty applications, and many did. The late advocate George Bizos SC successfully opposed amnesty applications on behalf of a number of families, including the Bikos, Hanis, Goniwes, Calatas, Mkhontos and Mhlaulis.
These were very different circumstances to those of a general amnesty in which perpetrators would get on with their lives without having to confess to their roles in any violence or criminality.
The commission yielded a carrot and a stick. To protect the integrity of its processes, it was based on the premise that there would be no general amnesty. To avoid being prosecuted, perpetrators had to apply for amnesty. Those who didn’t, or who applied but were found not to qualify, would face prosecution. The problem is, after publishing its report the commission depended on the state fulfilling its role – which it didn’t.
We should be told why. The most obvious answer is that the apartheid regime approached negotiations with a knife behind its back. The knife it carried was evidence of individuals in its enemies’ ranks whose integrity its agents had, over the years, deliberately compromised in anticipation of this moment.
If that’s the case, as a nation battling to swim to safe ground through the toxic sludge of extreme disparities in living standards, grinding poverty – severely battered by state ineptitude, corruption and Covid – we need to know if there were any other secret deals that may have acted as hand brakes on justice and transformation.
We need to know if we’re still being compromised by those disgraceful compromises today.
We need to know because we can’t be held hostage by secrets. We need to know so we can begin to fix the damage the secrets have wrought.
We need to recommit to healing the wounds of our ugly past by opening the scabs over the festering wounds, cleansing them and allowing the light of openness to enhance the healing process. We owe it to ourselves and future generations. DM