Mail & Guardian reporters
The landmark Truth and Reconciliation Commission (TRC) decision to deny amnesty to the killers of Chris Hani was not a political fix but was instead entirely consistent with the legislation governing the truth body.
Opposition parties and relatives of the two killers, Clive Derby-Lewis and Janusz Walus, have slammed the decision, accusing the truth commission of being a mouthpiece of the African National Congress and of applying inconsistently the TRC’s amnesty rules for politically motivated murders.
It has been argued that it is “common sense” that Hani’s assassination was politically motivated, and that for that reason alone, the South African Communist Party chief’s killers should be entitled to amnesty.
Gaye Derby-Lewis told the Mail & Guardian this week: “To say the decision [by the amnesty committee] is not political is ludicrous. It seems there is lack of consistency between this case and with Apla [Azanian People’s Liberation Army] leadership taking responsibility afterwards [for Pan Africanist Congress actions].”
Gaye Derby-Lewis, who is currently suing the police for allegedly tapping her visits to her husband in jail, said “the amnesty legislation seemed to embody a spirit which said you had a war here and that people who were part of that war deserved to be heard. We thought that was the spirit in which the TRC would be conducted but it seems the political climate was against us.”
The New National Party’s Jacko Maree complained that the TRC’s amnesty committee “may be tempted to apply different norms and standards depending on who the amnesty applicants are and what the political pressures may be”. He also told The Citizen that the amnesty committee had not always given the same ruling to similar applications.
Nevertheless, on Tim Modise’s talk show on SAfm on Thursday morning Maree admitted to the Hani family’s counsel, George Bizos, that he had not read the judgment.
Had he read it, he would discovered that the amnesty committee’s decision had hinged on the killers’ failure to satisfy very specific clauses in the act governing the TRC, the Promotion of National Unity Reconciliation Act.
The Act methodically stipulates the exact criteria regulating who falls into the camp of the politically motivated. Derby-Lewis and Walus did not satisfy the TRC’s amnesty committee that they had carried out the hit on behalf of the Conservative Party, which, in any case, did not espouse violence at the time.
The amnesty committee’s judgment concluded: “In all the circumstances, we are not satisfied that the applications comply with the requirements of the Act, in particular the provisions of Section 20(2)(a) …”
That section of the Act opens the amnesty door to “any member or supporter of a publicly known political organisation or liberation movement on behalf or in support of such organisation …”. There are other similar subsections which offer the chance of amnesty to, for example, employees of the former state or any person carrying out a coup d’tat, but the Hani amnesty judgment hinged on Section 20(2)(a).
If Walus had been able to convince the committee that he had carried out the hit on the instructions of Derby-Lewis, and on the assumption that Derby-Lewis was merely relaying an order from the CP, the Polish immigrant might have stood a chance. He would then have been able to claim he had carried out the assassination on behalf of, or in support of, the CP.
Walus initially said in his amnesty application he had acted alone, but subsequently amended his application to say he had jointly planned the hit with Derby- Lewis.
The TRC said in its judgment it was “abundantly clear Walus was not acting as a mere functionary. He was under no duress or coercion and executed the plan as he deemed fit.”
The committee said his testimony was contradictory on whether he was acting on orders, adding that as an active CP member, Walus “would have been aware that the party has constitutionally established decision- making structures and that Derby-Lewis had no power to order him to commit murder, particularly in view of the CP’s policy of non-violence”.
The amnesty committee said it appeared Walus’s argument that he was acting on orders was an “afterthought” and “an attempt to enhance Walus’s chances of receiving amnesty by curing deficiencies in the original application”.
According to the amnesty committee, the assassins were also blocked by Section 20(1)(c) of the Act, which requires a “full disclosure of all relevant facts”.
The committee shot holes in the applicants’ explanation of their notorious list of names, on which Hani was number three, saying it was a hit list “with the intended victims prioritised as indicated on the list”.
The judgment said: “In explaining the purpose of the numbering, applicants testified that Walus numbered the names on the list in priority of their enmity towards the CP. In another breath, Derby- Lewis explained that the numbering would serve as some kind of code reference to the person concerned for purposes of confidential telephonic conversations between applicants.
“All of these explanations for the numbering were in line with applicants’ strenuous denial that there was a plan to assassinate more persons than just Mr Hani. In our view the applicants’ explanation in this regard is false.”
It continued: “The explanation that the numbers would serve as a code [for the two accomplices to communicate with one another] was equally absurd.”