The 3 500 amnesty applicants will remain shrouded by secrecy if a controversial Bill is passed. Gaye Davis reports
A CABINET compromise allowing Truth Commission hearings on amnesties to be heard behind closed doors has set the stage for a major showdown between the government and non- governmental organisations — and could lead to a Constitutional Court battle.
Human rights lawyers and NGOs are outraged at the secrecy provision added to the Promotion of National Unity and Reconciliation Bill after intense behind-the-scenes negotiations at cabinet level late last year in a deal struck to get the National Party on board.
“We are prepared to bring a Constitutional Court challenge if the Bill goes through as it is,” Lawyers for Human Rights’ national director of litigation, Ahmed Motala, said this week.
In particular, a clause putting amnesty hearings “behind closed doors” and a general provision allowing Truth Commission hearings to be in camera in the interests of “security of the state, public order and good morals” — lifted from the Criminal Procedure Act — violated the constitution, Motala said.
These and other “broad, vague provisions” would not survive a Constitutional Court challenge, he believed. “The Bill should be fair to perpetrators of human rights abuses as well as survivors.”
The furore over the covert, abortive attempt to secure a blanket amnesty for
3 500 police officers, outgoing police commissioner General Johan van der Merwe and former cabinet ministers Adriaan Vlok and Magnus Malan days before the April elections has fuelled concern over the Bill, due before parliament this session.
The cabinet this week declared the indemnities invalid as the applications were incorrectly completed. All 3 500 applicants may now apply for amnesty through the Truth Commission. In terms of the current Bill, any court action against an applicant will be stayed. However, the full disclosures they are required to make about their actions in exchange for amnesty will be in secret. Certain details of applicants’ identity and the nature of their crimes may later be published, but it is unclear how much information will be available.
Human rights lawyers are concerned that secret hearings will prevent survivors of human rights abuses from taking part in proceedings, particularly since any amnesty granted would strip them of their right to take civil or criminal action, giving perpetrators total impunity.
A Constitutional Court challenge could significantly delay the Truth Commission in starting its work. It would ratchet up pressure on the NP, confronted by restive security force members, past and present, wanting certainty about their futures and who no doubt hold, as insurance policies, potentially damaging information about the past regime’s actions.
It would also face the ANC with the ire of constituents already unhappy about compromises made in the interests of national unity — of which the constitutional provision entrenching the concept of amnesty is one of the most significant. “We’ve already compromised by allowing for an amnesty,” an NGO source said this week. “Now we’re being asked to compromise on the truth as well. People are tired of making compromise upon compromise.”
The cabinet deal was struck soon after the original draft Bill — which contained no secrecy provision — was presented to the cabinet last year. The Bill was redrafted in a successful bid to bring the NP, faced with strong objections to the original Bill from the security forces, on board — but is likely to plunge the government into a new crisis.
Withering criticism of the deficiencies of the present Bill dominated a two-day gathering in Somerset West this week organised by the Justice in Transition project. Attended by leading advocates and NGOs in the legal, church and health- care sectors, it was designed to canvass ways they could support the truth and reconciliation process and assist the Truth Commission in its work.
Instead, furious debate on the Bill ensued — with ANC MP Johnny de Lange, chair of the National Assembly’s justice committee, and his senate counterpart, Mohseen Moosa, coming under fire.
The Weekly Mail & Guardian understands that NGO delegates, appalled by the deal struck on secret hearings, threatened to withhold co-operation from the commission. Submissions on the Bill to the parliamentary justice committee received so far are also understood to be highly critical.
The Black Sash said in its submission: “The commission’s purpose is to disclose the truth. To achieve that purpose, we have compromised on accepted international norms regarding the prosecution of perpetrators of torture assassination and the like. We cannot compromise on the truth being heard.” Lawyers for Human Rights, the Legal Resources Centre and the Centre for Violence and Reconciliation at Wits University will all be submitting reports detailing why the Bill is “fundamentally unacceptable”.
Centre for Violence and Reconciliation researcher Paul van Zyl said the indemnities row showed “the danger of allowing processes to happen in secret. It leads to a lack of faith in the process, undermines people’s confidence in it and can lead to an abuse of power. This should warn us not to make the same mistake with the Truth Commission”.
He said the Bill was “so subject to compromise it’s incoherent” — raising the possibility of extended technical legal wrangles delaying Truth Commission proceedings as the courts unravel its meaning.
Justice in Transition project director Dr Alex Boraine, who healped draft the original Bill, said the compromise “came as a shock — it’s a step backwards. We’ve had enough of cover-ups, lies, double-dealing and deceit, as we’ve seen with the indemnity fiasco. Everything that’s happened is a warning against holding amnesty hearings in secret. I am deeply concerned we’re going the same old way of doing things behind closed doors. I thought those days were over.”
The parliamentary standing committee on justice has the power to change the Bill. But as the compromise on amnesty hearings was made at cabinet level, the question is whether ANC parliamentarians will toe the party line and endorse the secrecy clause, or dismantle it.
The Bill goes before a joint standing committee on justice next week.
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