South Africans may never know the truth if the Promotion of National Unity and Reconciliation Bill goes through, argues Paul van Zyl
THE recent furore over the clandestine attempt to grant amnesty to 3 500 members of the security forces (including Adriaan Vlok, Magnus Malan and Johan van der Merwe) has strengthened calls for the speedy establishment of the Truth and Reconciliation Commission. It is widely believed that the commission will put an end to secret amnesties and restore both openness and transparency to the process of uncovering past violations of human rights. That belief is wrong. The Promotion of National Unity and Reconciliation Bill, which establishes the truth commission and was recently published for public comment, contains a set of compromises that have appalled the human rights community and victims of human rights violations alike.
The most serious objection to the Bill is that all amnesty applications and hearings are to occur behind closed doors. In previous drafts of the Bill open hearings were the rule and in camera hearings could only be held in exceptional circumstances in the interests of “state security”, “public order” or “good morals” or where harm might result to a person who testifies. These criteria were already extremely broad and had caused concern among those who recall how these concepts were abused during the apartheid era. But the present situation is immeasurably worse. Consider the following hypothetical scenario:
Eugene de Kok, the commander of the notorious Vlakplaas unit, is on trial. He is facing 106 charges ranging from murder to fraud. Over 100 witnesses, some of whom are “turned” colleagues, are set to testify against him. His trial, the culmination of an extensive and professional investigation, seems certain to offer an invaluable insight into the workings of police hit squads and the repressive arm of the apartheid government.
When the Truth Commission is established, his trial will be stopped and he will be called before it to testify behind closed doors. He will then be granted amnesty and all record of his criminal wrongdoing will be expunged. The only information that must be revealed to the public is his name and “sufficient information” relating to the crimes for which he has been granted amnesty. This permits the commission to interpret “sufficient information” very narrowly and publish in the Government Gazette the following attenuated notice: “Eugene de Kok: amnesty granted for murder, attempted murder and fraud.” All the hours of painstaking investigations required to establish how the Vlakplaas unit operated and from whom it received its instructions will never be publicly revealed. We may never discover the modus operandi of the hit squads and may never unveil how they interfaced with the offical police force and its political masters. The commission is also not obliged to name the victims of a particular assassin or torturer. Nyameke Goniwe may never discover who killed her husband, Chris Rebeiro may never learn who brutally murdered his parents and the relatives of Stanza Bopape may never find out who caused him to “disappear”.
The message of the commission has been compelling and simple: Fully disclose your crimes and you will be granted amnesty. The latest compromise makes a mockery of the notion of full disclosure. Perpetrators can “fully disclose” in secret to a committee which can then selectively publish what it chooses. This process can only obscure the truth and undermine the credibility of the whole initiative.
The current draft of the Bill is also ominously silent on the sanctions that people who have committed gross violations of human rights will suffer. The constitution compels us to grant such people amnesty and one may (reluctantly) accept that this may be necessary in the interests of stability during our period of negotiated transition. This does not mean that such a person should be allowed to hold public office. The protection and promotion of human rights requires a concerted and sincere effort from those in public office and civil society alike.
If torturers or killers are allowed to remain in public office then the process of democratising state institutions may be jeopardised. Public confidence in these institutions will be reduced and the state’s commitment to clean, accountable and open government will be questioned.
This may limit the extent to which NGOs and community- based organisations are willing to co-operate with vital state initiatives such as the reconstruction and development programme. It may also undermine the moral authority of the state and lead citizens to disregard important calls for an end to crime or a resumption of service payments.
If politicians who have violated human rights are allowed to stay, then citizens are sent a message — that those who commit crimes may do so with absolute impunity. If assassins within the security forces are allowed to retain their jobs then the process of building healthy police/community relations will be undermined.
The present draft of the Bill makes no reference to removal from office and one can only presume that its drafters have already accepted that removal from public office is too harsh a penalty for those who have committed brutal and callous crimes.
If the current Bill becomes law, then the truth commission cannot be guaranteed the support of victims, NGOs and the broader human rights community. It will reveal that those whose say counts in cabinet have something to hide. Sadly, it will also indicate that principles are all too easily sacrificed in the political horse-trading of the Government of National Unity.
Paul van Zyl is a researcher at the Centre for the Study of Violence and Reconciliation. He has been researching truth commissions and issues of justice in transitional societies for the past nine months