FANIE DU TOIT
On 23rd February the Constitutional Court ruled in favour of a civil society coalition that challenged the so-called ‘Special Dispensation for Presidential Pardons for Political Offences’ initiated by President Mbeki in November 2007. The ruling, unanimously awarded with costs against the President, the Minister for Justice and Constitutional Development and a number of Afrikaner right-wing perpetrators, found that ‘given our history, victim participation in accordance with the principles and the values of the TRC was the only rational means to contribute towards national reconciliation and national unity’.
Although the ruling focuses only on the ‘Special Dispensation’, it has the potential to put a spanner in the works of future attempts to pardon political crimes without consulting victims. However, as one expert put it: ‘Consultation does not mean a veto, but at least victims can now no longer be ignored.’
This ruling marks the end of yet another unsuccessful attempt by government to overcome some aspects of the backlog of unfinished TRC cases. It also acts as a stern rebuke to all political parties who participated in the process, including the Democratic Alliance, which has publicly lauded the Constitutional Court finding last week despite having chaired the Presidential advisory committee that originally refused to grant victims access to the ‘Special Dispensation’ process.
Previously, civil society successfully challenged a set of Cabinet approved guidelines according to which the National Prosecuting Authority would pursue apartheid-era cases, with sweeping powers to affect plea bargains but without having to involve victims. Former Minister Adriaan Vlok received a suspended sentence in a court case that lasted only a few hours and revealed no new information. Whatever one says about Vlok’s personal reconciliation efforts with victims, the formal, state-driven process through which he received a suspended sentence made little or no allowances for victims to be involved.
Many countries emerging from conflict have opted simply to forget past horrors in an attempt to move on. In a few cases, mostly after military conquest, war criminals were put on trial. South Africa, however, broke new ground with its Truth and Reconciliation Commission and the notion of limited or conditional amnesty, which could be granted only if perpetrators told the whole truth and demonstrated that their actions were ‘politically motivated’. With this delicate compromise the TRC tread a fine line between holding perpetrators fully accountable and letting them off the hook completely. At the same time it sought to bring to the foreground victims and their experiences.
Apartheid generals, to be fair, were never happy with this arrangement. After all, when they were promised amnesty in 1993, there was no mention of conditionality. These generals, including General Johan van der Merwe and others, as described in a recently-released statement, felt that ‘from the very beginning the TRC-process was characterised by a one-sided approach in which members of the Security Branch were often harshly discriminated against’ – this despite the fact that most amnesty applications actually came from the ranks of the liberation movements and not the security forces. Yet, despite their misgivings they eventually had to accept the TRC process, along with activists such as the Biko, Ribeiro, and Mxenge families, who again felt that the dispensation would be too lenient on perpetrators. Both groups were compelled by the political middle ground to agree to the compromise. All political parties, including the National Party, debated the TRC legislation in Parliament and eventually endorsed the process, with the exception of the Inkatha Freedom Party which abstained.
This position was further supported by a landmark Constitutional Court ruling delivered by Justice Mohammed that held that amnesty for criminal liability was constitutional because ‘without it there would be no incentive for offenders to disclose the truth about past atrocities’.
Hindsight is often perfect sight, but we now know that the TRC process did not foresee that so many top generals and others would simply shun its offer of amnesty in exchange for truth. Nor did the TRC’s founders anticipate the ANC government’s reluctance to follow through on its most basic logic: that those political perpetrators who did not receive amnesty, would, wherever possible, be prosecuted, or that victims would be paid adequate reparations.
The reality is that many of the victims remain isolated and ignored, not only by former enemies, but now also by their elected leaders. As one of the victims of the 1996 Christmas bombing in Worcester, whose perpetrator had applied for a pardon as part of the Special Dispensation process said: ‘I have not been able to work since that day. I am still waiting for justice. I would like the president to come to Worcester and discuss the pardons with the victims. If he could meet De Kock, why not us?’
As a consequence, unfinished aspects of the TRC’s work continue to haunt us. This cannot be good for reconciliation in South Africa. According to the 2009 SA Reconciliation Barometer, only 35% of South Africans believe government has done enough to prosecute perpetrators of apartheid crimes. The survey also found a decline in the percentage of South Africans who feel they want to forget about the past and ‘get on’ with their lives, from 77% in 2008 to 70% in 2009, and in those agreeing that they are ‘trying to forgive those who hurt me during apartheid’, from 63% to 57% over the same period. These indicators have point to the same trend: the past is not receding, but remains an all-too-present force.
In the main, government procrastination is to blame for this hiatus. When approaching government over the past ten years on these issues, civil society has repeatedly been told that the matter is being attended to. Thus victim groups continue to feel marginalised and civil society is left to guess about possible progress.
The TRC was designed to engineer a dramatic inversion of apartheid’s social hierarchy. Perpetrators would engage the process, not on their terms, but within a framework that would restore the human and civic dignity of those who suffered under their hands. The generals may feel that this process discriminated against them. In fact it was an attempt by a nascent society to make a statement about its future priorities – at the centre of which would stand the victims.
On Tuesday, the Constitutional Court reminded all South Africans of the basic principle of victim participation that underpinned our transition. Whatever measures we do take to complete the TRC process, this foundational principle of our democracy is now protected by the ruling of the Constitutional Court. Few want long, drawn-out apartheid court cases or a ‘second TRC’. In fact, many would like to see a speedy and dignified conclusion to the TRC process – but, without compromising on the most basic principle of putting victims first or squandering opportunities for further truth recovery.
The extent to which we will achieve this, twelve years after the TRC closed its doors, now crucially depends on leadership from government. What is needed is an inclusive and transparent process with clear criteria and incentives for perpetrators to help provide that which would be most valuable to their erstwhile victims: the truth.
In moving ahead, South Africans would do well to remember Justice Mohammed’s justification for amnesty: that it provides an incentive for perpetrators to reveal further truth about what really happened and why. Truth is a precious commodity in any reconciliation process. It creates trust where formerly there was none. When missing, it also impedes the psychological recovery of victims. It informs strategies to ensure non-repetition of political crime. In this sense, Mohammed argued that amnesty or pardon could be redeemed from being only an instrument of impunity and further humiliation, to becoming an opportunity to gain better understanding and emotional closure about political crimes.
It would be an immense pity if the gains made by the TRC process were squandered through a combination of casual neglect, bureaucratic incompetence and a lack of political will to make good on promises made to victims at the onset of the South African democracy.
Fanie du Toit is Executive Director of the IJR. A version of this article appeared in the Cape Times.