The government’s apparent desire to grant amnesty to all apartheid-era political criminals is heading for an unexpected obstacle — that of a Constitutional Court challenge by victims.
Piers Pigou, of the victims’ rights body Khulumani, confirmed this week that his organisation was exploring legal options, and seeking funding, to fight government if it legislated a general amnesty “which does nothing for victims”. Khulumani would fight any deal that ignored reparations and the disclosure of human rights violations, Pigou said.
At the same time, truth commissioner Yasmin Sookah confirmed she had asked senior counsel Gilbert Marcus for an opinion on the amnesty issue.
This week the Minister in the Office of the President, Essop Pahad, told journalists in Pretoria there were “political forces in South Africa arguing for a general amnesty” and that the government had to consider their views. If the government refused, Pahad said, “it has to explain why”.
The Cabinet would, however, have to study the Truth and Reconciliation Commission’s final report, which is likely to be tabled in Parliament next month.
The “political forces” Pahad referred to include the Inkatha Freedom Party. It is known that IFP chief whip Koos van der Merwe recently met Minister of Justice and Constitutional Development Penuell Maduna to discuss amnesty, and that the party has started to approach potential applicants in its own ranks.
The IFP favours a form of amnesty by means of presidential pardons, based on the recommendations of a panel of judges. The judges would determine, on the basis of political party or other third-party affidavits, if the crime at issue was genuinely political.
Also among Pahad’s “political forces” is a group of top apartheid generals, including Constand Viljoen, Georg Meiring, Jannie Geldenhuys, Magnus Malan and Dirk Marais, who have been pressing for an amnesty for apartheid soldiers over several years.
Interviewed this week, former defence force chief Geldenhuys confirmed the generals had been negotiating with the ANC, and that they and the ruling party had sent the government “consolidated” proposals on a general amnesty. He would not elaborate.
Viljoen said talks had picked up momentum in recent months after a lengthy lull. He was “hopeful” about the prospects.
The government’s biggest potential headache, and Khulumani’s focus, is the Constitutional Court’s ruling in the 1996 “Azapo case”.
The Azanian People’s Organisation argued that the TRC amnesty process unconstitutionally denied victims redress. However, Judge Ismail Mahomed found it was justified in a context where victims received reparations and amnesty applicants disclosed their crimes.
A general amnesty law that excluded reparations and the obligation to disclose would seem to flout the judgement. A law that included them would, on the face of it, require a new TRC process of some kind.
Other possible obstacles to a general amnesty law include the post-script to the interim Constitution, which explicitly linked amnesty with reparations, and international conventions obliging the government to act against human rights abusers.
Pigou said he was personally convinced the government had decided to press ahead with a general amnesty. A source close to the TRC agreed, saying the government would legislate if it could negotiate the legal obstacles.
The sources added that President Thabo Mbeki’s recent controversial pardoning of 33 convicted criminals, many of whom were denied amnesty by the TRC, seemed designed to test the waters.
Pigou complained that the government appeared to be shifting the goalposts. Both Nelson Mandela and Mbeki had assured Parliament in February 1999 that there would be no general amnesty.
The ruling party was pandering to right-wing generals, while ignoring the rights of the “cannon-fodder of the liberation movement”.