ICTJ in the News

July 29, 2007

Backroom deals with apartheid perpetrators undermine TRC rationale

The Sunday Independent

By Graeme Simpson and Nahla Vajli

The following op-ed follows on the heels of significant developments in the legal landscape of South Africa's post-TRC era. On July 19, 2007, the ICTJ, along with Thembisile Nkadimeng, Nyameka Goniwe, Nombuyiselo Mhlauli, Sindiswa Mkhonto, Nomonde Calata, Khulumani Support Group, and the Centre for the Study of Violence and Reconciliation (CSVR), launched proceedings in the Pretoria High Court to challenge the validity of amendments to the National Prosecution Policy dealing with apartheid-era crimes. At that time, they also issued a joint press release detailing the challenge.

Following these developments, a piece by Christelle Terreblanche appeared in last week's Independent Online, alleging--among other things--that Archbishop Desmond Tutu had actually called for a moratorium on prosecutions for apartheid-era crimes, an entirely incorrect and misleading assertion. This piece is in part an attempt to clarify this misconception and to add to the dialogue about accountability, both in the South African context and the importance of challenging impunity globally.

From Fiji to Burundi, from Nepal to Colombia and from the Democratic Republic of Congo to Canada, South Africa's negotiated transition and its Truth and Reconciliation Commission (TRC) continue to be viewed by many around the world as the paradigmatic model of a country moving from authoritarian rule and civil conflict to democracy and reconciliation. Yet the high price paid by many of apartheid's victims in relinquishing their rights to justice is often not fully understood. A conditional amnesty process that let perpetrators who applied off the hook - provided they told the truth and could show that they had acted politically - was approved by South Africa's constitutional court.

But in the wake of this amnesty process, the government has largely failed to fulfill its side of the contract by providing adequate reparation for those who suffered and who have seen their claims to justice extinguished. Worse still, it seemed that there was no political appetite to charge and bring to justice those who did not apply for amnesty, or who did so but failed to meet the criteria set out and who were therefore denied this luxury.

Then, last week, in a watershed development, the department of public prosecutions announced that Adriaan Vlok and four others would stand trial for the attempted murder of former anti-apartheid activist, and now director-general in the presidency, Reverend Frank Chikane. In a move of global significance, it appeared that a senior member of an apartheid cabinet would finally be tried in open court, and the iconic South African experience looked poised to deliver a highly symbolic form of judicial accountability for victims, nearly 10 years after the TRC delivered its final report.

No one has been more mindful of the need to deliver on the promise of justice for victims of the past than Archbishop Desmond Tutu, the former chairman of the TRC. He has frequently called for reparations to be made and - for those who did not embrace the opportunity afforded by the commission to apply for amnesty - he has called for the law to take its course.

The announcement that justice would now run its proper course should therefore have been greeted with enthusiasm by Tutu, victims groups and civil society more generally.

In a bizarre turn of events, however, South Africans were greeted by news headlines on Sunday morning alleging that Archbishop Tutu had approached President Mbeki in order to request "a moratorium on post-TRC prosecutions of apartheid perpetrators".

In an article headlined "Tutu Asks for a Moratorium on Vlok", reporter Christelle Terreblanche alleged that Tutu had sought a meeting with Mbeki in the days preceding the laying of charges against Vlok in a bid to prevent prosecutions from proceeding.

The article was factually incorrect and embarrassingly served to misrepresent both the issues and the individuals and institutions involved.

The archbishop's meeting with Mbeki, which occurred some two months ago, was not in response to the recent charges against Vlok and others, but was in fact related to a new policy introduced to deal with post-TRC prosecutions.

What was requested of the president was not a moratorium on apartheid-era prosecutions, but quite the contrary - a moratorium on the implementation of amendments introduced to the National Prosecuting Policy in December 2005, which in fact paves the way for indemnity from prosecution for perpetrators of these crimes.

The amendments in question create a separate legal track and de facto second amnesty process for perpetrators of apartheid-era crimes, allowing as they do for the National Director of Public Prosecutions (NDPP) to make decisions not to prosecute apartheid-era crimes even where sufficient evidence exists to secure a conviction.

Rather than evaluating cases on the basis of evidence, the NDPP is given the discretion in cases of crimes of the past to make prosecutorial decisions based on erroneous criteria such as "the degree of indoctrination to which the alleged offender was subjected"; "the degree of remorse shown by the alleged offender" and the extent to which the prosecution may affect national reconciliation.

The criteria and powers being conferred on the NDPP constitute a rehashing of the initial amnesty process of the TRC rather than the promised pursuit of prosecutions that underpinned that historic compromise.

The amendments not only provide an unconstitutional second amnesty bid, they also establish a process that makes no provisions for the needs of victims. Under the policy, the National Prosecuting Authority can negotiate deals with accused perpetrators behind closed doors, with no obligation to involve victims or to disclose the truth of these crimes publicly.

Tutu's approach to the president was made in a bid to avoid the necessity for a legal challenge to these amendments, a challenge that has subsequently been launched by Thembi Nkadimeng - the sister of Nokuthula Simelane, the widows of the Cradock Four, the Khulumani Support Group, the International Centre for Transitional Justice and the Centre for the Study of Violence and Reconciliation.

The applicants challenging this policy in the high court argue that the application of the policy will constitute a violation of both South Africa's own Bill of Rights and international law, which obliges the state to prosecute crimes of this nature.

The families of Nokuthula Simelane and the Cradock Four have waited years for justice in respect of the crimes committed against their loved ones. Despite the fact that there is sufficient evidence relating to the crimes in question and that the perpetrators were not granted amnesty by the TRC, no prosecutions have been forthcoming. The longer prosecutions are held off, the less likely they will be successful as evidence is lost and memories fade.

In instituting this challenge to the prosecution policy, these families are seeking to ensure that they are afforded the same access to our justice system as all South Africans, and that decisions to grant indemnity from prosecution are not made by state officials in accordance with politically contrived criteria, as is the case with the new prosecution guidelines.

It is argued by some that the constitutional court may have erred in not giving enough attention to South Africa's international legal obligations when it considered and approved the amnesty provisions contained in the TRC legislation.

Either way, more than 10 years later, the expectation of victims applying to the court to have the prosecution policy guidelines struck down is that the court will be considerably less sympathetic to an approach that is no longer demanded by a delicate political transition (or the constitution itself, as was the case in the TRC matter), and that provides none of the protections for the rights of victims that the TRC process did.

If the new South African prosecutions policy is to be applied, it will add to the international notoriety of the South African process, but for all the wrong reasons. In providing a "back door" amnesty at the stroke of an administrative pen, the South African government will have completely undermined the rationale of the TRC, and will have further betrayed the victims who still wait for justice.

Graeme Simpson is thematic director at the International Centre for Transitional Justice in New York. Nahla Valji is a project manager at the Centre for the Study of Violence and Reconciliation in Johannesburg.