Today, on 6 November 2020, the Supreme Court of Appeal (SCA) hears the case of João Rodrigues v National Director of Public Prosecutions and Others. João Rodrigues, a former member of the Security Branch during apartheid, is charged for the murder of Ahmed Timol on 27 October 1971.
In his appeal to the SCA, Rodrigues seeks a permanent stay of prosecution based on an alleged infringement of his constitutional right to a fair trial. More importantly, Rodrigues claims that the state granted an amnesty that bars any prosecution of him for the murder of Timol. The high court in Johannesburg already dismissed Rodrigues’s application seeking a permanent stay of prosecution in June 2019.
An essential aspect that the SCA has to determine in this matter is whether such an amnesty exists and, if so, whether such amnesty may bar the prosecution of Rodrigues. If such an amnesty exists, it could potentially prevent future prosecutions of many apartheid-era crimes.
TRC amnesties vs blanket amnesties
In his papers to the SCA, Rodrigues asserted that: “[A]n amnesty had been granted to perpetrators or alleged perpetrators of unlawful conduct of a political nature alternatively that there was an agreement with the authorities to the effect that no prosecutions would be instituted for political offences of this nature.”
This raises the question of which kind of amnesty Rodrigues is talking about. The amnesty in question is not comparable to amnesties granted by the Truth and Reconciliation Commission (TRC).
TRC amnesties set out two main prerequisites: (i) any person who wished to benefit from an amnesty in respect of any criminal act had to submit an application; and (ii) the applicant had to make full disclosure of all relevant facts. However, Rodrigues never applied for amnesty to the TRC and, 49 years after Timol’s death, his family and friends are still waiting for Rodrigues to disclose the truth of what really happened on 27 October 1971.
Looking at the amnesty that Rodrigues describes, it satisfies all the criteria of a blanket amnesty. Blanket amnesties are defined by the following characteristics: (i) exempting a broad category of perpetrators from prosecution; (ii) not requiring any application on the part of the alleged perpetrator; and (iii) not demanding any inquiry into the facts of each application for amnesty. In its final report, the TRC, knowing the value of individual amnesties for the truth-finding and reconciliation process, clearly distanced its amnesties from blanket amnesties.
An example of a blanket amnesty and its consequences for the prosecution of crimes can be found in Namibia. Five weeks before Namibia’s independence, the last South African administrator general, Louis Pienaar, issued an amnesty proclamation. The proclamation granted amnesty to any member of the South African and South West African forces for any crime committed in the territory of Namibia. Until today, no prosecution has been initiated in a Namibian court for crimes committed by South African or South West African forces under the South African administration.
A free pass for crimes committed in the furtherance of apartheid?
Although it falls within a state’s sovereignty to issue amnesties such as blanket amnesties, that does not automatically mean that such amnesties have to be applied. With regard to crimes against humanity, international, regional and domestic jurisprudence demonstrates that blanket amnesties are not applicable and cannot absolve perpetrators from accountability. Namibia, Libya and Sierra Leone represent examples of states trying to avoid such accountability.
In the example of Libya, the International Criminal Court rejected the amnesty in question and reasoned that “[a]mnesties … intervene with states’ positive obligations to investigate, prosecute and punish perpetrators of core crimes”, such as crimes against humanity.
The Special Court for Sierra Leone also dismissed the application of amnesty provisions in the Lomé Agreement regarding crimes against humanity and concluded that: “A state cannot bring into oblivion and forgetfulness a crime, such as a crime against international law, which other states are entitled to keep alive and remember.”
The African Commission on Human and Peoples’ Rights further confirmed in several decisions that amnesties are incompatible with the obligation of states under the African charter.
The Rodrigues case is not an ordinary murder case. It occurred in furtherance of apartheid, a system of racial segregation and oppression. The term “amnesty” derives from the Greek word “amnestia” and translates to “forgetting”, but crimes of such gravity like the killing of Timol cannot just be forgotten. If the asserted amnesty in the Rodrigues matter indeed exists, perpetrators of such crimes might not be prosecuted, which constitutes impunity.
As the South African Constitutional Court confirmed in its jurisprudence, South Africa has an international-law obligation to prevent impunity and combat the most serious international crimes, such as crimes against humanity or war crimes. The killing of Timol fits at least three categories of crimes against humanity. On this basis, the asserted blanket amnesty cannot apply. If it does, the asserted amnesty has the potential to place South Africa in violation of its international obligations.
The elephant in the room: A crime against humanity
It remains to be seen how the SCA will handle the question of amnesty. The gravity of the issue around the asserted amnesty should not be underestimated, because nothing less than the future of prosecuting apartheid-era crimes is at stake. The Rodrigues case reveals how essential the correct legal characterisation of the alleged conduct is. These proceedings further show the importance of such characterisation to overcome legal hurdles, such as the alleged amnesty or a potential time bar to initiate prosecutions.
In the Rodrigues matter, this would require a reconsideration of the charge sheet. Even though Rodrigues is currently indicted for the murder of Ahmed Timol, the high court in Johannesburg pointed out in its judgment in 2019 that “it would be open to the state, if they so desire, to reconsider the charge sheet”. Therefore, the charge sheet could still be amended and also include the crime against humanity.
Shamila Batohi, the national eirector of public prosecutions, stated in November 2019 that the National Prosecuting Authority (NPA) would consider how to “utilise the legal framework to be more creative in even perhaps charging apartheid as crime against humanity”, it remains to be seen whether the NPA will deliver on its promise. Cases like the Rodrigues one are regrettably representative of the inertia of the NPA in prosecuting crimes that shake the conscience of entire nations.