Members of the ANC give testimony in Cape Town about human rights abuses committed during apartheid. (Photograph by Gallo Images/ Oryx Media Archive).
Whenever a crisis arises in South Africa, especially a sustained one such as load-shedding or crime, nostalgia for apartheid seeps back into political discourse. Not only on social media but also news media.
Although the South Africa of 2023 is not the vision so many fought for over centuries, making comparisons with a crime against humanity demonstrates ignorance, amnesia or, at the very least, a failure of imagination. When it comes to policing, this amnesia is especially pernicious. One key factor behind this nostalgia lies with the unfinished work of the Truth and Reconciliation Commission (TRC) and the prosecution of the crimes of the former South African Police (SAP).
The TRC process began with the heart-wrenching testimonies of survivors and witnesses. Many of the perpetrators came forward too, corroborating many of the testimonies with their confessions. The TRC encouraged such confessions from agents of the apartheid state by offering amnesty from prosecution if they made full and complete disclosures.
Looking back now this may seem trivial, but it was a revolutionary attempt at pursuing the often irreconcilable goals of justice, truth and peace.
Prior to the TRC, most conflicts of the latter half of the 20th century ended with either violent purges and re-education camps for the former elites, or blanket amnesty for those who commit crimes against humanity. The former sacrificed peace for justice, the latter pursued peace at the cost of justice, and both failed to yield the truth of the past.
For example, for South American countries like Argentina and Chile, which suffered under fascist military dictatorships, the military officers were induced to return to democracy by amending their constitutions to grant amnesty for any crimes. Yet, to this day, every Thursday in Buenos Aires the Mothers of the Plaza de Mayo gather for a vigil in front of the presidential palace waiting to hear the truth about what happened to their children who were “disappeared” by state forces. In many other states, such as Cuba and Vietnam, the former elites faced summary executions or lengthy imprisonment and “re-education”.
By 1994, South Africa had faced more than 30 years of ever-increasing violence, teetering on civil war. The TRC was, in many ways, a compromised process to attempt justice, truth and peace. For some it was a compromise between the ardent wish for justice and truth by those who suffered, and those who did not want to risk violence by state agents who refused to leave positions of power and violence without being forced into “re-education”.
There was also a compromise between those wanting justice and those wanting truth: if no concessions were given to perpetrators then getting to the truth about what happened to the many victims of apartheid violence would never be told.
The TRC was also compromised in the sense of being weakened. Many state organs that ought to have cooperated did not, under FW de Klerk tonnes of government archives were burnt in an Iscor smelter to hide evidence, investigators were hampered in their work, and many suspected perpetrators did not come forward or did not give full disclosures.
Important for us today dealing with recurring apartheid nostalgia is how the TRC was compromised in its unfinished work. The key mechanism by which the TRC worked was by offering conditional amnesty from prosecution to those who came forward. While many did, there were others who did not. At the end of the process the TRC submitted the names of hundreds of individuals suspected of gross violations of human rights to the National Prosecuting Authority (NPA) for prosecution. As of March 2023, not a single one of those have been prosecuted.
Eugene de Kok, Clive Derby-Lewis and Janusz Waluś were the only people to have been successfully prosecuted for their crimes, but these were all prior to the work of the TRC. Wouter Basson was unsuccessfully prosecuted for the crimes relating to the apartheid state’s chemical and biological weapons programmes. Yet, none of the names are known to the NPA.
As a brief reminder of what sorts of crimes we are dealing with, from 1960 to 1990, the TRC found evidence of about 50 000 instances of torture at the hands of the police. The number equates to nearly five people every day being tortured by the state for 30 years. Many of these resulted in death. Members of Vlakplaas, the police’s undercover counterinsurgency division, admitted to torturing people to death and then blowing up the bodies with landmines next to railway tracks to make it look like they were incompetent “terrorists” who accidently blew themselves up.
Although Vlakplaas operatives and their methods are well-documented, no one should be as misguided as De Klerk was in apparently thinking that they were the exception of just a few bad apples. After the Sharpeville Massacre on 21 March 1960, the police were indemnified against any charges of excessive violence, not only for that event but for all future police actions.
The court system further let down these victims. Defendants would try to state in court that their confessions were extracted by torture, often with visible injuries. The judges ignored these pleas and sided with the police. There was no safety from the cruelty and the inhumanity of the SAP.
The Indemnity Act (1961), General Law Amendment Act (1962) and the Terrorism Act (1967) laid the groundwork for the institutionalisation of torture as a standing operating procedure by the police for the next 30 years. The inhumanity of detention without trial would also be used as a form of torture, with about 78 000 instances of such detentions during apartheid, and untold numbers of deaths in detention.
A pregnant woman was detained in 1963 for violating a banning order. She was forced to give birth in jail and was separated from her child when he became ill. The next day the police told her: “Your child is dead … this child will be buried by the government.” This is but one example of thousands of documented cases of brutality and cruelty in the TRC archives, perpetrated by police officers, warders, soldiers, judges, doctors and others. The cruelty of the police was not incidental, it was institutionalised and cannot be separated from its day-to-day functioning.
When apartheid is decried as a crime against humanity it is not done so as a propaganda slogan, it is a statement of fact on the inhumanity of the violence of the state and suffering of generations of South Africans. Apartheid was not solely about the separate and unequal distribution of state resources, it was an inherently and intentionally violent, brutal and dehumanising state policy.
Nostalgia for a crime of inhumanity constitutes a profound case of forgetting, and serves as a recurring reminder of the unfinished needs of justice in South Africa.
Simon Taylor is an extraordinary researcher at North-West University and the founder of Ana Nzinga Research. He was formerly with the department of international relations and cooperation.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian