Something is morally rotten when one assassin is prosecuted and another gets off scot-free, argues Eddie Koch
WHEN a pair of assassins are able to squabble on the front page of a national newspaper over whose style of killing people was more moral, it is a clear sign that decay has set into the nation’s moral and judicial culture. That is exactly what happened when police hitmen Joe Mamasela and Dirk Coetzee fell out with each other in public this week.
The spectacle began with the extraordinary decision of KwaZulu-Natal Attorney General Tim McNally to order the arrest of Dirk Coetzee, the police captain who first exposed the existence of death squads in apartheid’s security forces, and two accomplices, for their role in the gruesome killing of Griffiths Mxenge in 1981.
Human rights lawyers and senior officials in some of the offices of the country’s attorneys general are outraged by the move, not so much because they believe Coetzee should be indemnified for the murders he has confessed to carrying out in the apartheid era, but because they believe McNally’s decision was capricious.
They point out that McNally ran a one-man commission in 1989 that ruled the renegade policeman’s sensational hit-squad claims were unsubstantiated. McNally denies any bias, saying he acted against Coetzee simply because he had recently acquired enough reliable evidence to build a prima facie case.
Either way, Coetzee’s fate contrasts dramatically with that of Joe Mamasela, a member of the anti- insurgency police unit based at Vlakplaas, who has admitted to being personally involved in the murder of more than 30 people. Mamasela has been promised indemnity by the KwaZulu-Natal and the Transvaal attorneys general for the murders, including that of Mxenge, in exchange for providing the investigation teams with more of the kind of information that Coetzee made public more than five years ago. On top of that, Mamasela is reported to be earning a salary of R10 000 a month as a special judicial investigator for the attorneys general.
McNally says his opinion, supported by Judge Harms now in the Appellate Division, was that Coetzee was an ”unreliable” witness when he first exposed the hit squads and this left him without enough prima facie evidence to prosecute the Mxenge case. It was only when Mamasela emerged with new evidence, that McNally felt he had a case with a reasonable chance of succeeding in court.
McNally says reports from the Transvaal attorney general’s office indicate that Mamasela is now providing ”reliable” information about a range of political murders – even though the Vlakplaas operative is on record as saying that he personally helped cover up the existence of hit squads at the time of the official inquiries into Coetzee’s revelations.
Whether the attorney general’s decisions to reward one killer with amnesty and money while punishing another were biased or not, they highlight the extraordinary powers concentrated in the hands of single officials whose job it is to decide whether to prosecute or reward them with immunity from prosecution in exchange for information. One prosecutor acknowledged that sometimes ”the roll of the dice” determines whether a killer gets jail or indemnity. He argues that the kind of prejudice which McNally is accused of showing could be prevented if such decisions were left to a judicial panel rather than a single attorney general.
Legal experts say it is common practice in most western legal systems for prosecutors to do deals with accomplices who are willing to give evidence about a crime in court. This is the staple diet of many detective movies and courtroom dramas. Without this power, they say, there would never be prosecutions in a great number of criminal cases.
But in Europe and North America there are sets of ethical guidelines and regulations that severely limit the reward that prosecuting agencies can use to induce potential witnesses to give evidence. Complete amnesty is extremely rare and perpetrators usually get only a reduced sentence in exchange for co-operating with the authorities. And, in some cases, public opinion acts as a powerful brake on the power of the attorneys general or their equivalents.
This was highlighted in a recent case in Canada in which a couple was prosecuted for abducting two young girls and subjecting them to gross torture and sexual abuse. Paul Bernado was given a life sentence after being found guilty, while his lover, Carla Homolka, was given 12 years because she turned state witness. This caused a moral outrage in Canada as citizens in every state mounted protests and sent petitions to demand that her sentence be increased.
The principle embedded in that country’s culture is that heinous crime, especially the taking of human life, should never go completely unpunished. To grant full indemnity to killers is to encourage a sense of entitlement among the assassins who exist in every city of this country: the kind of ethical rot that takes place when one killer uses a national newspaper to argue that he was ”better” than another.
In the absence of clear parameters being drawn around this complex issue by the offices of the attorneys general, it is likely that the Truth and Reconciliation Commission will end up taking responsibility for promoting a human rights culture that venerates the principle that murder can be mitigated but never condoned. One of the amnesty committee’s main tasks is to give meaning to the concept of ”proportionality” — that political motivation for carrying out a human rights abuse can provide grounds for amnesty if the severity of the crime is commensurate with the political beliefs that motivated agents to execute it.
The problem is that, so far, the amnesty committee of the truth commission has received more than 2 000 applications from perpetrators and has only held two public hearings in this regard.
Much of the work of this committee — which has the vital role of setting precedents for amnesty — – is being held up by red tape. The lack of legal aid is creating a bottleneck for the stream of violators who either want to lodge applications or make public appearances to confess their crimes and plead for amnesty.
Once these blockages are cleared, the truth commission will begin to interact extensively with the attorneys general over the question of whether criminal proceedings should be instituted against known human rights violators or whether cases against the accused should be suspended so that they can make amnesty applications.
For this to happen, the attorneys general, amnesty committee and judges in cases already under way must discuss and concur on the postponement. This meeting of legal minds is likely to produce more definite guidelines around the complex question of which killers should be punished and which should go scot- free.
In a violence-prone country like ours, where the system has so far allowed some assassins to develop a sense that they are entitled to reward instead of penance, the sooner this happens the better.