Human rights abusers are staying away from the truth commission — and the attorneys general are being blamed, reports Stefaans BrUmmer
THE Truth and Reconciliation Commission has been left in the lurch by those it needs most to solve the mysteries of the past — human rights abusers — and attorneys general are being blamed for their failure to show up.
The commission this week said while about 1 800 people have applied for amnesty, 1 650 of them are prisoners — known cases where convicts argue their crimes had a political dimension. Of the about 150 who are not prisoners, it appears no more than a few dozen involve “fresh” cases where no prosecutions have been instituted. Less than five months remain before the amnesty applications deadline of December 15.
Figures across the spectrum, from human rights lawyers and individual truth commission officials to representatives of the “old guard”, this week said the main reason perpetrators have failed to come forward is uneasiness that the possibility of self- exposure at the commission may damage their chances in courts of law.
Since the commission’s “proportionality test” may well mean those guilty of more serious crimes will not get amnesty in spite of confessions, many are staying put, taking a gamble on not being caught.
Some argue KwaZulu-Natal Attorney General Tim McNally’s indictment last week of Dirk Coetzee and security police colleagues — in spite of Coetzee and two of his co-accused having lodged amnesty applications — has increased perpetrators’ uneasiness about the truth process.
Human rights lawyer Brian Currin, who counts a number of perpetrators among his clients, said this week: “This has become a major problem. I have even advised some people not to apply.”
Currin said while the Promotion of National Unity and Reconciliation Act ruled out the courts using confessions before the truth commission’s amnesty committee as evidence, confessions may well alert attorneys general to the culprits in unsolved cases, who may then prosecute on the strength of their own investigations.
Dumisa Ntsebeza, acting commission chair while Archbishop Desmond Tutu was abroad this week, said the commission was not overly concerned about the low turn-out, as it was hoped there would be a change nearer to the December deadline. “I don’t think it is [a crisis] for the commission, but it is a crisis for the perpetrators. You know what human beings are like. There is the problem of a bottle neck, as we anticipate a mad rush closer to the cut- off date.”
Ntsebeza, who also heads the commission’s investigative unit, said the commission and the attorneys general shared the desire for the pursuit of the truth, but that the different end result of both processes — criminal justice seeking prosecution, and the commission encouraging amnesty applications to harness reconciliation — caused “tension”.
He said the attorneys general have co-operated with the commission on many levels, but that there was no full agreement on which classes of investigations they should hand over to the commission. Though the commission had taken no decision yet, it would not “waive any rights” allowed it by the Act to subpoena witnesses, including attorneys general, to supply information.
Ntsebeza pointed to two instances of potential conflict with Jan D’Oliveira, Transvaal attorney general. D’Oliveira has made no secret that he regards the tentative approach to the commission by 22 former and serving security force operatives last month as an apparent attempt by some of them to pre- empt intended prosecutions — and that he still wants to prosecute in the more serious cases.
But Ntsebeza said: “We have asked for all the relevant information. [That means D’Oliveira] will not be able to prosecute in the medium term, but for us it is the wider picture … A complete picture can only emerge if we have as much information as possible.”
He also said the commission wanted to subpoena Joe Mamasela, the former Vlakplaas operative both McNally and D’Oliveira want to use as a state witness in exchange for indemnity. Said Ntsebeza: “We have said we are not going to waive any of our rights, and we have in fact briefed legal counsel for an in camera hearing [with Mamasela].”
Some attorneys general are known to be reluctant to hand over cases and witnesses as they believe their prosecutions — especially serious cases where amnesty may not be given by the commission — will be prejudiced irrevocably if they are first exposed to the quasi-judicial procedures of the amnesty committee.
McNally confirmed he had met other attorneys general in Pretoria this week. He would not say what the talks were about — apart from discussion over media criticism of his handling of the Coetzee case. It is likely the talks included aspects surrounding the need for a co-ordinated approach where criminal prosecutions may have an impact on the workings of the commission.
It has been argued that the threat of prosecution is the “big stick” which will supplement the “carrot” of the commission’s amnesty offer in getting human rights perpetrators to confess.
Ironically, Currin — and Coetzee’s lawyer, Julian Knight — found themselves in bed this week with former police commissioner General Johan van der Merwe and the Foundation for Equality before the Law in attacking the approach of the attorneys general. The foundation, which has among its members top names from the apartheid security establishment, was established after McNally started his prosecution of former defence minister Magnus Malan.
While no one argued prosecutions should not be instituted against those who failed to apply for amnesty or failed to make full confessions, they agreed the “selective” prosecutions at the moment created uncertainty.
Said Currin: “The attorneys general — certainly McNally — have been acting in an unpredictable way … What we need is legislation that all [political] prosecutions are suspended pending the [finalisation of the] commission.”
Van der Merwe said: “You take a big risk if you ask for amnesty now, and then you are charged. After that you can hardly excercise your normal rights in terms of the Criminal Procedure Act … to exercise [your] right of silence, or to plead not guilty, or to wait and see the evidence.”
Knight said: “What the attorneys general are doing in deciding to selectively prosecute people is having the effect of putting people off from coming forward — which is protecting the master puppeteers of the old regime from detection.”
He pointed out that security force operatives applying for amnesty forfeited their chance of qualifying for state legal support should the matter go to court — as with Coetzee — since only those who maintained their innocence qualified under treasury regulations.
McNally this week said he looked at matters “from the other side” to that of the commission. “Is there anything to stop prosecutions where people have applied for amnesty or intend to ask?”
He said the Malan trial was not relevant to the amnesty debate, as the accused have maintained their innocence. In the Coetzee case, he has also not had any notification that the accused want a trial postponement pending their amnesty hearings.
McNally said the attorneys general had met the commission — and he was due to meet it again soon — to discuss areas where their interests overlap.
D’Oliveira was not available for comment.