ICTJ in the News

August 21, 2007

Prosecutions Policy Fails to Serve Truth or Justice

Natal Mercury

by Paul van Zyl and Abdul Tejan-Cole

Friday's announcement that Adriaan Vlok, Johan van der Merwe and three others received 10-year suspended sentences for the attempted murder of Reverend Frank Chikane highlights some of the fundamental flaws in the government's recent strategy to deal with the past.

The "bargain" at the heart of the Truth and Reconciliation Commission (TRC) process was the prospect of amnesty in return for full disclosure and the threat of prosecution for failure to do so. This is as generous an arrangement as it controversial. It may have been prudent for those who were managing South Africa's transition from Apartheid to democracy to cut this deal in order to placate potentially disruptive security forces, reassure skittish whites and allow the liberation movements to deal with their excesses. But it is wrong not to acknowledge the legitimate pain and anger felt by victims or the risk of entrenching a culture of impunity by suspending the rule of law.

The key distinguishing (and arguably redeeming) feature of the TRC's amnesty process was that it was conditional. Unlike blanket amnesties passed by other repressive regimes, the South African amnesty was premised on the prosecution and punishment of those who failed to receive or apply for amnesty. The "stay-out-of -jail" sentences awarded to Vlok, van der Merwe et al. are deeply regrettable for several reasons.

First, they deserve to be punished and not just slapped on the wrist. Attempted murder is an extremely serious crime aggravated by the fact that the perpetrators in question occupied positions of power and trust at the highest levels of the state. We expect those who are politically and operationally responsible for the police to protect citizens. When they fail to come clean and use what was meant to be a once-off amnesty offer, it is particularly important to reassert the rule of law by meting out a punishment that is proportionate to the crime.

Second, South Africa is currently grappling with unacceptably-high levels of crime. If an "ordinary" criminal attempts to murder a motorist in the course of a hijacking, we expect severe punishment if he is subsequently apprehended and brought to trial. How do we square this with a 10-year suspended sentence handed to top officials for a similar crime? Crime-fighting efforts require that citizens have trust in the integrity and competence of those responsible for enforcing the law. It is difficult to imagine this sentence engendering anything other than cynicism and a sense of double-standards.

Third, the Commission's original amnesty deal was justified as the price to be paid for peace and democracy. In the words of the Constitutional Court, the amnesty was "a historic bridge" from a violent and oppressive past to a stable future. But that bridge has now been crossed. No one can credibly assert that Apartheid-era security forces will overthrow the current government if we pursue accountability. The failure now to sanction severely those who spurned the original amnesty weakens the rule of law and the protection of human rights. Symbolic punishment, like the suspended sentences in this case, subverts the moral and strategic rationale for the original amnesty. Worse still, it creates the impression that regardless of the TRC process perpetrators were promised impunity in backroom deals.

Fourth, a perfunctory court appearance followed by a suspended sentence lacks any of the procedural safeguards of the original amnesty process, which was designed to elicit as much truth about the events in question as possible. This trial denied the public an opportunity to ask the kinds of questions that victims and their representatives asked amnesty applicants during the TRC.

Adriaan Vlok served in the South African cabinet and on the State Security Council (SSC) for five crucial years from 1986 to 1991. During that time the SSC approved counter-revolutionary strategies that authorized the security forces to "eliminate", "destroy", "neutralize" and "permanently remove" anti-Apartheid activists. We now know that Vlok and van der Merwe understood this language to authorize assassinations and acted accordingly. Those who did the dirty work were praised and promoted to the highest ranks in the police. These crimes were never genuinely investigated and this supposedly ambiguous language was never clarified or amended when the killings of these activists were widely reported both at home and abroad. These were crimes committed by a system, not just by individuals. F.W. De Klerk's implausible and evasive argument-rejected by the TRC -that bad apples were responsible, rings as hollow now as when he first articulated it. De Klerk proudly told the TRC that he attended over 90% of SSC meetings. It is astounding, and incriminating, that such diligence did not cause him to wonder whether the language it approved might not by interpreted as a license to kill - particularly when Vlok and van der Merwe, who sat on the SSC with him, were authorizing assassinations based on precisely this language.

Vlok and van der Merwe have already failed to make full disclosure before the TRC. It is clear that the defendants concealed the truth about critically important questions regarding the criminal, political, and moral responsibility of the most powerful figures in the Apartheid government, including a Nobel Laureate whose role in history should be the subject of rigorous investigation. The nature of their current trial has yet again allowed them to evade the kind of detailed questions that all South Africans are entitled to have answered. All we have to rely on is a general commitment on their behalf to cooperate in future prosecutions. But judging by the failure of the government to devote meaningful resources to post-TRC prosecutions over the past decade, it would be unwise to rely on their involvement in future trials to fully reveal the authorization and execution of Apartheid crimes. This trial underscores the importance of the legal challenge recently brought by the Khulumani victim group and other organizations against the government's prosecutions policy. Vlok et al. made use of this policy while negotiating their plea bargain and it should now be obvious that the policy serves neither the interests of truth nor justice.

Finally, this trial is not just bad for South African and its people, it also threatens to tarnish an approach to dealing with past atrocity that has been closely followed and generally respected throughout the world. South Africa's approach to transitional justice has not been without its flaws. Victim groups have legitimately complained that reparations and prosecutions have been inadequate and that as a result the process has been skewed towards the needs and interests of perpetrators and the privileged. A comprehensive reconsideration of the government's policy towards justice and reparations is now necessary. Without it, what has been regarded as an inspiring model for other nations, will be fundamentally discredited both at home and abroad.

Paul van Zyl is Executive Vice President of the International Center for Transitional Justice and served as Executive Secretary of the TRC. Abdul Tejan-Cole is Acting Director of the Center's Cape Town office.