The National Prosecuting Authority’s (NPA) decision to prosecute former police minister Adriaan Vlok and former police commissioner Johan van der Merwe, along with three former police officers, was inevitable. The Truth and Reconciliation Commission (TRC) legislation is clear: if alleged perpetrators failed to apply for amnesty, or were denied it, they would be subject to prosecution.
Although former president FW de Klerk insists that he neither condoned nor supported human- rights abuses, there is speculation that he may be prosecuted. Given the amount of sloppy reporting on this issue, it is hard to discern the truth. Yet it is a fact that he sat on the State Security Council, which among other things was responsible for the establishment of the notorious paramilitary “Caprivi Trainees” that operated in KwaZulu-Natal.Â
De Klerk is adamant that he had sincerely apologised for apartheid at the TRC and on subsequent occasions. His apology was not, however, akin to the great political apologies offered by the likes of Raúl Alfonsin in Argentina, Willie Brandt in the former Warsaw Ghetto or even, for that matter, by Leon Wessels, the former deputy minister of law and order. Wessels conceded that it was not a case that he and his cabinet colleagues did not know about his government’s atrocities; rather, “we didn’t want to know”.
De Klerk will be remembered as one of the few leaders in history who negotiated himself out of power. It is not be too late for him to make the kind of apology that all will be compelled to hear.
More broadly, the prosecutions raise certain questions about:
- Reconciliation: De Klerk warned that the prosecutions should be undertaken with “the greatest sensitivity and circumspection” because of the potential negative impact on national reconciliation. Fair comment — but the majority of victims of apartheid-era crimes identify truth, acknowledgement and an apology as priorities for reconciliation.
- Memory: Some suggest it is time to close on the past and move on. But Timothy Garton Ash reminds us that “often it is the victims who are cursed by memory, while perpetrators are blessed by forgetting”.
- Prosecutions: “I am resorting to prosecutions now because it is the only option I have, but if I had an opportunity to sit down and talk, I would choose that,” says Thembi Simelane-Nkadimeng, the sister of Nokuthula Simelane, who disappeared after being abducted by the Security Police in Soweto in September 1993. “Why do those who killed my sister prolong my suffering by refusing to tell me where to find her body?”
- Accountability: The rule of law requires accountability. The TRC recommended that those who either failed or chose not to apply for amnesty should be prosecuted.
The past is never quite past. If former senior officials break their silence about the past, it could encourage others to do the same, taking this nation a step closer to finding closure.
My plea is that Vlok, Van der Merwe and the other accused use the prosecutions as an opportunity to make full and complete disclosures of what they know, not only about the attempted poisoning of Frank Chikane, but about other apartheid-era crimes as well.
For this reason, the NPA’s regulations for the prosecution of apartheid era crimes promulgated in January 2006 ought not to be used to limit the extent of the truth being sought. The regulations give the NPA discretion to allow the accused to enter into plea bargains and not to be prosecuted even where sufficient evidence exists to secure a conviction if it is not in the “public interest” to do so.
Some organisations and victims of apartheid crimes have served notice that they will challenge the NPA regulations in court as a violation of the Constitution. My major concern is that if the NPA regulations are implemented behind closed doors, this will limit the very truth telling that the nation needs to find closure on at least some aspects of the past.Â
It is probable that few South Africans are looking for revenge. The punishment that the court hands down may well reflect the spirit of reconciliation captured in the interim constitution, which encouraged “understanding but not vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.”
The underlying condition for this commitment is acknowledgment, truth and the affirmation of the need for reparation.
Charles Villa-Vicencio is executive director of the Institute for Justice and Reconciliation