Cathy Jenkins:A SECOND LOOK
`Let me ask you, Reverend [Musa] Zondi, who should be prosecuted for stockpiling weapons and who should not? If we want the country to be governable, as the Inkatha Freedom Party says it wants to do, who do you think should be prosecuted whenever they transgress the law?”
Tim Modise, interviewing the IFP national representative last week, summed up the dilemma facing the country after the discovery of an arms cache big enough to start a civil war.
The dilemma of who to prosecute, and for what, has hung over South Africa since the first days of transition to democracy. For all the virtues of the Truth and Reconciliation Commission, one of its most insidious, if unintended, consequences has been to leave the country puzzled and uncertain about the circumstances in which criminal prosecution is appropriate.
The truth commission’s amnesty process, by which those who have tortured, bombed and murdered in the name of politics can obtain complete immunity from civil and criminal suit in exchange for no more than full disclosure of their deeds, is a process which many have found difficult to understand and accept.
Perhaps the strongest argument in favour of the truth commssion’s amnesty process and the different treatment of political crimes is that it facilitated the holding of the 1994 elections.
For many, though perhaps not the victims of the crimes and their families, the contribution of the amnesty process to the transition to democracy will justify its existence. But it was an offer with a limited lifespan, which more than 7 000 people chose to take up; for those who did not, the deal has now expired.
The IFP was outspoken in its criticism of the truth commission and many of its members deliberately decided not to take advantage of the amnesty process – Phillip Powell among them.
There will always be possibilities, in any country, for those who are willing not merely to provide information but actually to testify against their partners in crime to obtain a reduction in sentence or even a complete discharge from criminal prosecution.
In this country the Criminal Procedure Act of 1977 provides for just such a discharge to be given by a court (and only by a court) where a person who agrees to testify as a prosecution witness answers “frankly and honestly”, in the opinion of the court, questions which may incriminate himself. That such a discharge should be granted sparingly follows from the fact that it is a “substantial indulgence” granted to the witness for “merely performing the duties to be expected of an ordinary citizen”.
As Modise put it, “At what point are we going to draw the line? Who should be prosecuted for possessing illegal weapons, and of the magnitude that we’re talking about here. We’re talking rocket launchers, we’re talking hand grenades … seven tons of such weaponry – and then somebody gets arrested for illegally possessing a handgun and gets sentenced to five years’ imprisonment for breaking the law.”
The normal principles of criminal procedure have been deformed for long enough in this country. It is time to draw a line under amnesty for “political” offences.