MAMPHELA RAMPHELE | ANC opposition to Khampepe spits in the face of all South Africans

Judge Sisi Khampepe’s commission of inquiry into alleged political interference to stop heinous apartheid-era criminals identified by the Truth and Reconciliation Commission (TRC) from ever facing justice is, in fact, an inquiry into the morality and integrity of the ANC-led government, past and present.

The TRC was a flagship outcome of the country’s negotiated political settlement. Its mandate was to investigate human rights violations perpetrated between 1960 and 1994.

The searing testimonies of victims and family members at hearings of its Human Rights Violations Committee drew much attention, but the commission’s primary legal purpose was as an instrument to consider amnesty applications of perpetrators of apartheid-era human rights violations — and to make recommendations on reparations.

The TRC was governed by the Promotion of National Unity and Reconciliation Act, which was introduced by an ANC-appointed minister of justice. But as the commission’s work unfolded, it became increasingly uncomfortable for the ANC.

The rules of the commission’s amnesty-granting process were the first bone of contention. The act required perpetrators of human rights violations to personally apply for amnesty for specified crimes, but the ANC submitted a batch amnesty application for its leaders, who would take collective responsibility for the actions of all its members. This did not comply with the legislation and was ultimately rejected by the TRC’s Amnesty Committee after the matter was taken to the high court.

Then, in 1999, the ANC asked the high court to stop the official handover of the first five volumes of the TRC’s final report. The report contained findings that implicated the organisation in human rights violations.

The ANC argued that the actions of members of liberation forces were incomparable to those of the apartheid regime, and the TRC’s report was inaccurate and imbalanced

Although the overwhelming bulk of apartheid-era violence considered by the TRC was perpetrated by functionaries of the authoritarian state, there was also a measure related to armed resistance. The commission therefore included several cases relating to the death of civilians in explosions, as well as alleged abuses in exile.

The ANC argued that the actions of members of liberation forces were incomparable to those of the apartheid regime, and the TRC’s report was inaccurate and imbalanced.

The TRC won the case, and despite objections from his party, then president Nelson Mandela accepted the report from the commission chair, Archbishop Desmond Tutu.

But the die was cast, and the ANC has effectively stonewalled anything TRC-related since. Prosecutions have not been effected for those who did not receive amnesty, the reparations paid to victims have been paltry, and none of the recommended measures, such as the implementation of a wealth tax, have been implemented.

So desperate were victims’ families for justice that they launched a damages case against the state last year, to which the president responded by appointing a commission of inquiry to probe alleged political interference in prosecutions.

Now the president appears to be getting cold feet. He has added his weight to that of his predecessors Thabo Mbeki and Jacob Zuma in seeking the recusal of the chair of the committee, whom he appointed judge Khampepe. According to President Cyril Ramaphosa, he didn’t know that the judge had previously served as a member of the TRC’s Amnesty Committee or that she’d worked at the National Prosecuting Authority (NPA).

There must be compelling reasons for the ANC to so desperately seek to block the prosecution of apartheid murderers, not least because many of the victims laid down their lives for the self-same ANC

The effect of the president’s affidavit supporting Mbeki and Zuma’s application for the judge’s recusal will be to further delay an investigation into deliberate delays in the administration of justice.

For more than 20 years the ANC-led state has allowed the false narrative to take root that the TRC was nothing but emotional theatre. It has effectively been spitting in the face and denying justice to the families of victims … and in the face of Tutu and a cast of high-calibre commissioners and staff … and in the faces of all South Africans who believed in the promised land of post-apartheid unity and justice.

It is noteworthy that while the state undermined the TRC at home, more than 20 other states around the world recognised the value of its modelling and implemented truth commissions of their own.

There must be compelling reasons for the ANC to so desperately seek to block the prosecution of apartheid murderers, not least because many of the victims laid down their lives for the self-same ANC.

Unless there’s something that the state has to hide, the appointment of judge Khampepe, with her particular experience at the NPA, the TRC and the Constitutional Court, was an inspired one. She adds trustworthiness and integrity to a process that ultimately has the difficult task of judging the ANC’s morality and integrity in kneecapping the national unity and reconciliation process.

Judge Khampepe has the unwavering support of the Archbishop Tutu Intellectual Property Trust, the Desmond & Leah Tutu Legacy Foundation, and all at Desmond & Leah Tutu House.

Whether by commission or litigation, the shameful truth must emerge.

• Ramphele is chair of the Archbishop Desmond Tutu Intellectual Property Trust