Ann Eveleth
APROPOSAL that political killers in KwaZulu-Natal receive special amnesty could be unconstitutional, say legal experts. This is a blow for the peace package currently being negotiated for the province.
The provincial amnesty deal would give warlords and foot soldiers from KwaZulu- Natal special opportunities to be indemnifed against political crimes. It is the most controversial element of the peace plan.
Human Rights Commission (HRC) member Karthy Govender this week said the two parties would have to “provide sufficient justification if they want to move away from the principles of an open and democratic society underpinning the constitution”.
He was referring to provisions in a peace plan tabled by the African National Congress that suggest a national deadline of May 1994, beyond which acts of political violence may not be pardoned by the Truth and Reconciliation Commission, be extended in KwaZulu Natal.
The proposal also suggests that amnesty hearings for those who have fought in the province’s ongoing civil conflict can be heard behind closed doors, contrary to current truth commission regulations.
Govender warned that the selective application of a special amnesty to KwaZulu-Natal could open the door to constitutional challenges from “people who are serving sentences for crimes committed during the extension period in other provinces or from people who have not benefited from in camera hearings”.
He said the plan had “serious” implications for the rule of law: “If you keep drawing a line in the sand and then extending it, you are sending the message that it will continue to be extended and this aggravates problems we are already experiencing in terms of lawlessness. The parties would have to demonstrate exactly why the criminal justice system cannot bring the killers to book and that the truth commission is not working.”
The HRC could also decide to challenge the final provisions if it felt they were unconstitutional, added Govender.
Members of the truth commission also claim the proposals threaten to undermine the organisation’s efforts. Although, the ANC’s proposal suggests a role for the commission in nominating members to a special provincial amnesty board, commission representative John Allen said he could not comment as it had not yet been approached.
Other commission members, however, have privately expressed frustration with the proposal, and insist they will have nothing to do with it. One member argued the commission would, in fact, no longer exist by the time legislation to create a special amnesty process for the province was passed by Parliament.
The truth commission is expected to table its final report later this year and close its doors by March 1998.
There are also signs the proposal – mooted as the first step toward a potential Zanu- Zapu-style relationship between the ANC and IFP – could achieve this unity at the cost of weakening the ANC’s tripartite alliance in the province.
While leaders of the South African Communist Party (SACP) and Congress of South African Trade Unions (Cosatu) were this week measured in their criticism of the plan, both admitted the proposals had sown confusion among grassroots supporters.
Cosatu’s provincial chair, John Zikhali, said the union federation hoped to complete consultations on the issue by the end of the month: “In principle we support peace, but as for the cost we are willing to pay for it, we are still grappling with that,” he said.
The SACP’s Jeremy Cronin said his party was “a little bit concerned” about the amnesty proposal as well as a plan to offer IFP leader Mangosuthu Buthelezi a “very senior” national government post, but KwaZulu-Natal SACP member Nkosinathi Gumede was more forthright. “We cannot have these packages at the expense of the people who have been killed. The ANC has criticised us for going public with our criticism, but we say the ANC tabled their package in public without consulting us,” he said.
“The alliance is under stress. The ANC is just seeing the alliance as their sub- structure,” added Gumede.
ANC and IFP provincial leaders met this week to continue fleshing out the plan – the brain-child of ANC national and provincial chair Jacob Zuma – which aims to end the province’s years of bloody political violence.
Zuma and IFP KwaZulu-Natal Premier Ben Ngubane led this week’s talks, but the process has the backing of both parties’ national leaders. President Nelson Mandela and Deputy President Thabo Mbeki gave their nod to the plan at a meeting at Mandela’s Qunu home late last year.