De Kock should be pardoned, too

Any government amnesty policy must apply across the board, argues.

The government’s moves to start pardoning failed amnesty applicants will come as no surprise to those who have followed the Truth and Reconciliation Commission (TRC) process—and particularly the stance of President Thabo Mbeki—since the TRC issued the first five volumes of its final report in October 1998.

It is just the latest in a line of actions by a government hostile to the spirit and intent of the law that created the TRC in 1995.

The pardons have been widely, and justly, attacked.
But some element of justice could emerge from it—depending on how far the government is willing to go

If it goes the whole way and pardons all those whose amnesty pleas were rejected, it could import some fairness and equity into what is a short-circuiting of the originally conceived TRC amnesty process.

The TRC was created with three primary objectives—to uncover the truth about human rights abuses after 1960; to recommend reparations for the victims of abuse; and to consider amnesty to the perpetrators. All of this was envisaged as part of a process of promoting reconciliation in South Africa, and not, as Minister of Justice and Constitutional Development Penuell Maduna claimed this week, to deliver reconciliation.

What is the government’s record on these three goals?

The TRC is widely credited with having uncovered much of the truth about the abuses of the apartheid era. It could, andshould, have uncovered more. But it hit the nail on the head on the political assassination policy of the PW Botha regime, the horrors inflicted on the region and the human rights violations in the exile camps of the liberation movements.

Especially on the latter, Mbeki, then vice-president, responded by taking court action to block the publication of the final report. The move failed—but set the tone for his essentially hostile posture towards the TRC.

Mbeki’s attitude was reflected in his boycott of the report’s handover ceremony, in the paltry single afternoon set aside for Parliament to debate the report and the many critical African National Congress speeches—including his own—that marked the debate.

Not once in the nearly four years since the report appeared has any member of the government commented on the report’s many recommendations, let alone moved to implement them.

These include the reparations policy of the truth commission. For nearly two years the TRC’s reparations committee toiled on developing a comprehensive and affordable policy of reparations for victims of rights abuses. It comprised both non-monetary and fiscal measures.

In early 1998 the TRC made an interim payment to the victims. Since then, the Department of Justice and Constitutional Development, assigned responsibility for administering the reparations, has done nothing to implement them. It has paid out not a single cent of the modest annual grants recommended by the commission.

In the meantime, victims have died. Others have remained trapped in penury or plagued by illnesses and afflictions for which they cannot afford treatment. Children of victims have been unable to pursue studies because they cannot pay fees.

The hostility of this government to the TRC has, in effect, further victimised casualties of apartheid. 

Then there is the amnesty process. Of the just more than 7 000 individuals who applied for amnesty, only about 25% succeeded. The high failure rate points to the fact that the offences of many applicants fell outside the TRC Act’s provisions—they were essentially “trying it on”.

Many of those who should have applied did not—including high-profile members of the National Party, their senior security and law-enforcement officers, members of the Inkatha Freedom Party, the homeland governments and their security agencies.

What has been forgotten is that the Act provided for the prosecution of those found to be responsible for gross human rights abuses, but who did not seek amnesty.

Soon after the publication of the truth commission’s report, a special unit was formed in the Scorpions to investigate the possible prosecution of failed amnesty applicants and human rights abusers who dodged the amnesty process. So far this unit has brought a solitary court action—the unsuccessful prosecution of officers of the Ciskei defence force involved in the Bisho massacre.

Given this failure, and the abortive and hideously expensive attempt to prosecute Wouter Basson, the prospect of further prosecutions of even low-level perpetrators seems remote. Neither does there appear to be any political will to go after high-profile figures. Does anyone seriously believe that the government will bring cases against the likes of former president PW Botha, or Mangosuthu Buthelezi or Winnie Madikizela-Mandela? It is not going to happen.

It is in this context that the possibility of some justice in the government’s policy on pardons can be discerned.

Can it be right or just that those who took part in the amnesty process, but were denied pardons, should remain in jail, while those who did not bother to take advantage of the amnesty provision remain free?Can it be fair for Eugene de Kock to stay in prison while his Vlakplaas superiors and the likes of Craig Williamson, Joe Verster and many others remain outside, enjoying all the rights offree citizens?

It should be remembered that much of what we know about the government’s “dirty war” in the 1980s comes from De Kock.

The Minister of Justice has argued that the 33 Eastern Cape offenders pardoned last week “participated in the struggle”. This is no argument because, from their perspective, so did De Kock, Clive Derby-Lewis and Januz Walus.

The unpalatable fact is that if the government’s policy of pardons is to be fair, it must be applied across the board—not just to those who were on the “right” or “winning” side in the struggle.

Only in this way can some sort of justice be salvaged from the perversion of the South African amnesty process.

Dr John Daniel is a former researcher with the Truth and Reconciliation Commission and currently a research director in the Human Sciences Research Council. The views expressed are his personal ones

Client Media Releases

Survey: Most Influential Brands in SA
ITWeb's GRC conference set for February 2019
Survey rejects one-sided views on e-tolls
Huawei forms partnerships to boost ICT skills development
North-West University Faculty of Law has a firm foundation