For more than eight years germ warfare expert Wouter Basson has lived in the shadow of the prison gates, accused of masterminding state-sanctioned mass murder under apartheid. Now the Constitutional Court will decide whether his 2002 acquittal on 64 criminal charges was justified, or the result of bias and bad findings by an old-guard Pretoria High Court judge.
Chief Justice Arthur Chaskalson will preside over a six-day hearing from Monday that could see Basson (54) become the first person in South Africa to face trial for war crimes.
Basson, a cardiologist and former brigadier, was sacked from the South African Defence Force (SADF) in 1992 in a purge amid allegations of Third Force activity. He headed Project Coast, South Africa’s ultra-secret chemical and biological warfare programme, from 1980.
Arrested in January 1997 in Pretoria, he went on trial in October 1999 on 67 charges of drug trafficking, fraud and murder.
Despite testimony from more than 140 witnesses, including self-confessed killers, and thousands of supporting documents, Basson walked free 30 months later. One of his first acts was to admonish the media to stop referring to him as “Dr Death”.
But prosecutors appealed against the decision on grounds that Judge Willie Hartzenberg ought to have recused himself from a trial he had prejudged. The state had tried to have Hartzenberg removed 39 court days into the proceedings following a series of decisions that emasculated the case against Basson. Among other comments, the judge told senior prosecutor Anton Ackerman he was “bored” with testimony about an alleged R37-million fraud against the SADF’s slush fund.
In May 2003 the Appeal Court dismissed a state application to overturn the verdict. But last March the Constitutional Court found there were compelling constitutional reasons to revisit that decision.
Three questions form the core of next week’s hearings:
Did the judge’s refusal to remove himself undermine impartial adjudication?
Did the quashing of six major charges before Basson entered a plea undermine South Africa’s international law obligations regarding war crimes?
Was the state prejudiced by being barred from presenting Basson’s testimony at his original bail hearing?
The six charges Hartzenberg forced the state to drop in October 1999 could form the basis of a future war crimes trial. They relate to the extermination of more than 200 South-West Africa People’s Organisation (Swapo) prisoners of war in Namibia in the 1980s, and the murder or attempted assassination of several African National Congress operatives, including current Intelligence Minister Ronnie Kasrils and Arts and Culture Minister Pallo Jordan, in England, Mozambique and Swaziland.
Hartzenberg ruled Basson could not be tried for alleged crimes on foreign soil and was protected by a blanket amnesty for all security force members quietly slipped on to the statute books before Namibian independence in 1990.
The original indictment against Basson claimed the murders were the result of a conspiracy by the shadowy Civil Cooperation Bureau (CCB) to eliminate “enemies of the state”. He was accused of supplying state assassins with poisons they injected into Swapo detainees to kill or incapacitate them before their naked bodies were flung into the sea from aircraft.
Acting for the state in the Constitutional Court last year, advocate Wim Trengove argued that the Namibian amnesty could only shield Basson from prosecution in that country, and that the crimes he was accused of were clear contraventions of the Defence Act, the Military Discipline Code, the Geneva Convention, the Nuremberg Charter and the 1973 United Nations resolution declaring apartheid a crime against humanity.
“The murders were systematically aimed at members of a racial group as part of a design by the apartheid government to murder its political opponents, using bacteriological and other means, and South Africa has a duty to prosecute these offences,” Trengove said.
South Africa’s 11 most senior judges concurred, with Judge Albie Sachs —himself the target of a CCB assassination attempt — stating that if the charges against Basson were proved, “it would be difficult to argue that they do not constitute war crimes”.
Trengove, who will argue the state’s case again next week, points out that Basson is “one of the few people accused of gross human rights violations in the apartheid era who has been prosecuted for the crimes of which he is accused. They are crimes of the most serious and extensive nature, and the outcome of this case is of great importance, not only to him, but also to the victims of those crimes.”
It is in the public interest, Trengove argues, “that an authoritative determination be made of the validity, or otherwise, of his acquittal”.
Should the Constitutional Court decide in the state’s favour, the National Prosecuting Authority would be free to retry Basson. The principle of double jeopardy would not apply, since a finding that the judge ought to have recused himself would nullify all proceedings after February 2000.