It was bound to happen. The Truth and Reconciliation Commission might have promised enough reconciliation to facilitate the transition to democracy, but it hardly produced enough truth to bury the memory of apartheid in history.
The public needs to discover the role of those who ran the apartheid state and who authorised the violence, particularly during the final two decades of National Party rule — a period that was so terrible that it would be difficult for the TRC to have the last word.
A motley group from across the political spectrum is now talking about the need for political intervention, rather then employing the legal system to prise open the secrets of a brutal past. But the TRC was itself the compromised product of a political process. It represented a bridge over which the country was able to cross to democracy.
Most reasonable people would acknowledge that, without the TRC, transition might have been impossible. But the criminal roles of those who were responsible for ”third force” killings, for example, cannot be settled by a political process that has already failed to produce the truth.
Opposition to reliance on the criminal justice system does have one powerful point. If prosecutions go ahead, the process has to be transparent, and the public must be able to understand the basis of the National Prosecuting Authority’s decisions. The NPA cannot simply say there is a prima facie case against X but refuse to proceed.
Been there, done that.
But if the NPA decides that its policy is directed at the apartheid state exclusively, that can be sustained on the basis that a criminal state is far more morally culpable then those who resist it.
The process of prosecution will, however, be fraught with difficulty, no matter the quality of the decision-making process.
For a start, it is clear that the apartheid government destroyed a massive store of vital documents. According to Terry Bell and Dumisa Ntsebeza’s important book, Unfinished Business: South Africa, Apartheid and Truth, FW de Klerk initiated this process. Doubtless, De Klerk would contend that the process of change he had courageously begun in 1990 would have been compromised if then-powerful people sensed the possibility of retribution. But De Klerk’s decision will always raise the inference that he sought to hide the actions of key NP leaders, including himself.
Bell and Ntsebeza describe how investigators from the Goldstone Commission set up by De Klerk in 1991 ”blundered” across a veritable library of state secrets that probably would have unlocked the truth about the role of NP leadership. Adopting the narrowest of legalistic arguments, Judge Goldstone claimed that he could not engage in a fishing expedition and hence only seized a very limited range of documents. A short time thereafter the entire ”library” was destroyed.
This loss denied the possibility of truth to the country and will now make prosecution more difficult. That leads to a second problem: the history of prosecution in attempting to hold powerful people legally accountable for apartheid crimes.
To date the record has been pretty hopeless. Vast resources were employed in the trials of Magnus Malan and Wouter Basson, all to no avail. Unless better and more reliable evidence is available to the state, it runs the risk that the criminal justice system will produce no more ”truth” than did the TRC.
Of course, apart from evidence, there is the combined effect of the skill of the prosecution and the approach of the presiding judge. But a properly conducted trial, like that of Eugene de Kock, may just provide the country with greater insight about who was responsible for so much mayhem, and help restore faith in the principle of accountability.
History cannot simply be made to disappear. Citizens are already incredulous that there was a body, the State Security Council, set up to formulate violent responses to political opposition to the apartheid state, and yet ultimately we are supposed to believe that a few colonels and one cabinet minister of little political power or presence ran the national show! Presentation of this myth as fact can only breed cynicism, which hardly helps the nation-building effort.
Prosecutions may well be an imperfect and risky strategy, but is there any viable alternative to a more comprehensive understanding of our violent past?