President Cyril Ramaphosa is establishing yet another judicial commission of inquiry, to determine whether attempts were made to obstruct the investigation or prosecution of apartheid-era crimes referred by the Truth and Reconciliation Commission (TRC) to the National Prosecuting Authority (NPA), through improper political interference.
This can be read as a welcome response to long-standing calls for justice, particularly from aggrieved victims and family members. But the establishment of this commission is also deeply Kafkaesque. Indeed, the historical record of the TRC reveals that there has been little incentive for the ANC-led post-apartheid state to pursue potential prosecutions.
The proposed commission is the product of litigation brought by 25 family members of victims of apartheid-era political violence.
While an inquiry may assuage the victims’ legitimate quest for justice, it may risk repeating a disturbing historical pattern afflicting institutions set up to right the wrongs of the past, namely the production of findings and recommendations which are never formally acted upon. Or the production of abstract findings and recommendations to avoid meaningful redress.
In a timely new book, The Truth Commission and its Burdens: Perpetrator Findings and their Consequences, Prof André du Toit has addressed why there has been an absence of post-TRC prosecutions. For Du Toit, this is about the politics of the TRC itself. While the TRC hearings captured public imagination and made room for disclosure and mourning, the commission’s pivot to making perpetrator findings was politically explosive.
The 1993 interim constitution, emerging from fraught negotiations in the context of a military and political stalemate, stated unequivocally that “amnesty shall be granted” for past political violence, leaving it to the future parliament to decide how that amnesty process would be operationalised.
The crime against humanity that was apartheid did not only involve individual acts of violence, or crimes as narrowly defined by the PNUR Act. It was a regime that targeted entire communities through policies such as Bantu education, forced removals, ethnic cleansing and the denial of citizenship through Pass Laws.
The TRC’s mandate was stipulated in the Promotion of National Unity and Reconciliation (PNUR) Act, which stipulated conditional amnesty: amnesty would be provided, under its remit, for apartheid-era crimes that were fully disclosed and if political motivation could be proven. According to the Act, “crimes” meant “gross human rights violations” narrowly defined as killing, torture or severe ill-treatment, committed between 1960 and 1994.
This included violations committed by apartheid functionaries, but also by members of the anti-apartheid liberation movements. This proved to be incendiary. ANC and MK members repudiated the conditions of amnesty as, in their view, there remained a qualitative distinction between violence committed for the cause of a “just war” and the violence engaged to uphold a criminal system.
Du Toit notes how the TRC’s refusal to accept different moral categories of violence fractured its relations with the ANC. Archbishop Desmond Tutu, chairperson of the TRC, threatened to resign if the ANC persisted in its opposition. Ultimately, the ANC would acquiesce until formal findings were made against its members.
The final TRC report, submitted to government in October 1998, found that the ANC and its members “committed gross violations of human rights in the course of their political and armed struggled for which they are morally and politically accountable”. Kgalema Motlanthe — ANC secretary-general at the time — repeated the original misgivings of his party: the TRC, in his words, had “grossly misdirected” itself by incriminating those who fought to oppose a tyrannical system. A year later, in a special parliamentary debate on the TRC report, ANC president Thabo Mbeki went further, arguing that the TRC’s findings worked to “delegitimise or criminalise a significant part of the struggle of our people for liberation” and that national unity and reconciliation could not be based on a “denunciation of important parts of our struggle”.
The ANC went so far as to make an unsuccessful application to the High Court for an interdict, attempting to prevent the TRC from publishing any part of its report in which the ANC was implicated in human rights violations. There were also attempts by ANC leaders to meet with TRC commissioners to discuss the findings before the report’s release. Tutu refused in fear of the commission’s independence being compromised in the public eye. For Motlanthe, this refusal amounted to a violation of the TRC’s mandate and a “betrayal of the trust we and the majority of the people of our country placed on it”.
In October 1998 the TRC issued the government with a list of some 300 cases for further investigation and possible prosecution. The commission had denied amnesty to top ANC leadership, including Mbeki, Jacob Zuma, Mac Maharaj, Pravin Gordhan, Trevor Manuel and many others. The full list was sent to advocate Bulelani Ngcuka, the head of the newly established NPA, who appointed advocate Vincent Saldanha, a senior advocate from the Legal Resources Centre, to work on these cases.
Du Toit details how it later emerged that the report had gone missing, and that there were clandestine talks in 1999 about a possible new amnesty law. Many feared that prosecutions of former apartheid agents would result in private prosecutions of ANC members.
Later attempts to investigate apartheid-era crimes were also stymied. In January 2006, Vusi Pikoli, then National Director of Public Prosecutions, released a revised prosecution policy affirming the NPA’s discretion in deciding which TRC-related cases to pursue. The announcement triggered waves of unease across the political spectrum. The issue came to a dramatic head in 2007, when Mbeki suspended Pikoli and established another inquiry — the Ginwala Commission — to assess the latter’s fitness to hold office.
During this commission, Pikoli said he was approached by several senior officials attempting to dissuade him from proceeding with certain cases and that he believed his decision to pursue apartheid-era prosecutions was the driving factor for his suspension. He was permanently removed from office by then president Motlanthe on December 8 2008.
Ramaphosa has announced that Justice Sisi Khampepe will chair the commission. With her experience working on the TRC, and her more recent work in making bold and progressive findings of accountability against the City of Johannesburg in the Usindiso Inquiry, there may be some form of acknowledgment of the truth, and a sense, however modest, that justice has been achieved if the findings do result in any successful prosecutions.
But the crime against humanity that was apartheid did not only involve individual acts of violence, or crimes as narrowly defined by the PNUR Act. It was a regime that targeted entire communities through policies such as Bantu education, forced removals, ethnic cleansing and the denial of citizenship through Pass Laws.
The TRC made a range of recommendations beyond referring amnesty cases for prosecution. In Volume 6 (of its report) it finds that corporations were part of the making of structural, racial inequality and made specific recommendations regarding the responsibility of the business sector to contribute to the restitution for all “whose normal development was impaired by the system of apartheid” and not only those who had been identified as victims by the TRC’s narrower definition.
It even recognised a basis for both civil and criminal liability for certain actions of businesses. Are these “crimes” not also worth revisiting?
If we are to reappraise the post-apartheid state’s response to TRC recommendations, it ought not be limited to matters impacting a select few of those who identified as “victims” or alleged perpetrators denied amnesty. We should also look at the real legacy of apartheid — the persistent spatial inequality, a broken education system and the world-beating inequality.
Ramaphosa’s decision to hold this commission into whether there was “improper” political interference rather expresses a defeatist acceptance of the TRC’s official discourse on the crimes of apartheid, while after 30 years in power the ANC has proven unable to meaningfully address apartheid’s economic and social legacies.
• Lester is a lecturer in sociology at Stellenbosch University.
For opinion and analysis consideration, e-mail Opinions@timeslive.co.za
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