Cape Times; 17 May 2018; Yasmin Sooka
RIGHT PAST WRONGS: Former Truth And Reconciliation Commission chairperson Archbishop Emeritus Desmond Tutu. Countless perpetrators chose to avoid the commission and many others were refused amnesty, but virtually none have been held to account, says the writer.
SOUTH Africa’s negotiated transition, with its truth-for-amnesty approach to dealing with politically-motivated human rights violations committed in the past, was celebrated around the world as being an innovative way of dealing with serious international crimes.
Twenty-four years into the democratic order, however, we have betrayed many of the commitments made at the time.
Perpetrators of human rights violations who made full disclosures about their crimes to the Truth and Reconciliation Commission (TRC) were granted full civil and criminal amnesty. Those who were denied amnesty or who spurned the opportunity to apply for amnesty were required to face criminal justice. Countless perpetrators chose to avoid the commission, and many others were refused amnesty, but virtually none have been held to account.
The discomfort many South Africans – including commissioners who served on the commission – experienced at the idea of granting amnesty to the perpetrators of the most barbarous acts was tempered by the knowledge that the commission was a component of an extraordinary healing process, and that those who turned down the “carrot” the commission offered would face the “stick” wielded by the National Prosecutions Authority (NPA). One way or the other, justice would be done.
Shockingly, however, not only has there been no stick, but the victims of apartheid-era violations received totally inadequate reparations. The “bad guys” profit – they lose nothing, no pensions, no homes, pay no reparations and show no remorse or regret for crimes they would have been imprisoned for in any other country – while the rights to justice of those on whom they trampled are set aside – again.
Other countries pursue justice no matter how long it takes. Argentinian, Chilean and Guatemalan prosecutors, among others, have pursued hundreds of cases from the 1960s, seventies and eighties. They continue to work on such cases across South and Central America to this day. They put us to shame. Just last year, German authorities prosecuted a perpetrator for Nazi atrocities committed in the mid-20th century.
South Africa’s record, by comparison, is pitiful. Turning our backs on the victims of apartheid is a shameful scar on our nation’s integrity. Last week I read with great interest that National Director of Public Prosecutions (NDPP) advocate Shaun Abrahams told journalists in Cape Town his office was prioritising 15 apartheid-era investigations and prosecutions. (In 1999, the TRC handed a list of more than 300 cases to the NPA for further investigation with a view to future prosecutions.)
I want to give Abrahams the benefit of the doubt and believe we will soon see the fruits of the labour of credible and honest investigators and prosecutors with a serious desire to see justice done.
That would certainly represent a sea change from what the Foundation for Human Rights, to whom some of the families of victims have turned for help, has experienced in the past. We are used to the pleas of victims falling on deaf ears.
Ten years ago, we had to go to court to stop the NDPP from proceeding with a prosecution policy that provided a back-door amnesty to perpetrators. We also had to go all the way to the Constitutional Court to stop a political pardons process that again bent over backwards for perpetrators while excluding victims.
Since then, it has been one uphill battle after another where the victims themselves have had to pursue justice and virtually beg the state and its institutions to do their jobs. In 2015 we returned to court to compel the NPA to make a decision in the case of Nokuthula Simelane, a young cadre who was murdered by the Security Branch in 1983.
In this case we exposed gross political interference in the criminal justice system that resulted in cases from the apartheid era being suppressed. It emerged that advocate Vusi Pikoli, who was the NDPP at the time, and advocate Anton Ackermann were instructed by politicians to drop these cases.
Only after we filed papers in the high court did the NDPP take a decision in the Simelane case. This after the family had pleaded for action for nearly 20 years.
In the Timol matter, action was only taken after we piled on the pressure and threatened litigation. It seems that action is only taken when we go to court or threaten court action.
We must also ask why the NPA has chosen not to pursue the decision-makers, those who issued the instructions executed by their security forces. Why was Eugene de Kock prosecuted, but not the generals who instructed him to commit atrocities?
What happened to the General Krappies Engelbrecht indictment that was prepared in the 1990s following the D’Oliviera investigations? Has it been destroyed or is it just hidden from sight in the hope it will be forgotten?
And, who is it that hopes it will be forgotten? Hopefully, Abrahams’ new prioritisation process will render further litigation unnecessary. And, hopefully, the new political order in the country will support our objective to see past wrongs remedied expeditiously.
In the meantime, together with colleagues from other NGOs, backed by skilful lawyers and investigators, we will continue on our path of pressuring prosecutorial authorities into action. It is deeply frustrating. Our small team is working round the clock, with very little to show for its endeavours.
We struggle to raise funds to support the investigations. Why is it out job? Why is our state not doing what it is supposed to do?
If we wait any longer, justice and truth will forever be denied. Witnesses, suspects and indeed family members are getting old. Many have already died. Parents and family members have gone to their graves without answers.
The TRC told the essential story of our past. But there are still many unanswered questions. A large number of families who lost loved ones are still looking for answers, even today. This is not unusual in countries that have undergone similarly fundamental change across the world. It’s an area I have continued to work in Sri Lanka, Central African Republic, Nepal and South Sudan.
In any country, part of the old order survives. In South Africa old order personnel are strategically placed in key places to keep tabs and obstruct. Courageous prosecutors and detectives could have stood up to fight for justice. None have, yet.
The eight cases we are presently working on are the alleged “suicides” in police custody of Neil Aggett, Hoosen Haffejee and Babla Saloojee; the alleged “accidental” death of Matthews Mabelane; the alleged “natural” deaths of Nicodemus Kgoathe, Solomon Modipane and Jacob Monnokgotla; and the disappearance and murder of Nokuthula Simelane following her abduction by the Security Branch in 1983.
As we did with the Timol family, we are assisting these families to gather information and knock on the right doors in their pursuit of justice. If Abrahams is able to open these doors, there are a number of other cases waiting in the wings.
However, here at the foundation we won’t be holding our breath.
Sooka is a lawyer who heads the Johannesburg-based Foundation for Human Rights. She served as a commissioner of the TRC.