25 Oct 2006: ISS Today: South Africa: Amendment of the Prosecuting Policy: Prosecution of Criminal Matters Arising From the Conflicts of the Past and

25 October 2006: South Africa: Amendment of the Prosecuting Policy: Prosecution of Criminal Matters Arising From the Conflicts of the Past and Which Were Committed Before 11 May 1994

 

Perhaps the wordy amendment to the prosecuting policy - the title of this commentary - passed you by as it did me.  Perhaps you missed it for the same reason I did, that it was passed in early December 2005 when most people had already turned their thoughts to their holidays and when the ‘silly season’ had firm hold on the newspapers. Indeed, the timing of the amendment to the prosecuting policy is as curious as its contents. For what the National Director of Public Prosecutions (NDPP) did in December was to cynically word a prosecution policy that at once reiterates the clichés about the value of the Truth and Reconciliation Commission process while creating a space for prosecutors to provide amnesty-like immunity from prosecution for apartheid human rights violators.

 

In April this year some of the most influential non-governmental watch dog organisations took the NDPP to task. They argued strongly that the policy amounted to a rerun of the amnesty process of the TRC that flew in the face of the rights and dignity of victims. Certainly on a technical, principled and legal basis the policy is nothing less than disingenuous. But what has puzzled me most is why the new policy was introduced at all. And, why now, more than 5 years after the end of the TRCs amnesty process? Why, when the office of the National Director of Public Prosecutions has come under such heavy fire for its handling of other politically significant cases. For, as the Foundation for Human Rights, the Khulumani Support Group, the Centre for the Study of Violence and Reconciliation have pointed out, the policy is nothing more than a fresh offer of amnesty for those who failed to come forward during the TRC process. A highly controversial move at a time when the NDPP can scarcely afford it.

 

In fact, the policy adds insult to injury by allowing the NDPP to exercise his discretion as to whether the facts of the disclosures made by perpetrators in terms of this policy should be made public. Clearly then the policy is not aimed at ensuring that more details about our past become part of our national history. Nor can it be an attempt to encourage the foot-soldiers to come forward to cleanse their consciences about violations committed by their commanders or colleagues, because not even the TRC’s generous amnesty offer was enough to lure them out. There have to date only been a handful of prosecutions involving former state officials since the end of the TRC. It is, therefore, unlikely that any who should have, but did not, apply for amnesty is loosing sleep over their imminent prosecution. The TRC provided more than adequate opportunity for perpetrators of human rights violations to come forward whether they were motivated by altruism or fear of future prosecution. Those that did not should be open to prosecution.

 

Perhaps more significantly, prosecutors already have at their disposal legal measures to indemnify perpetrators. Section 204 of the Criminal Procedure Act (1977) allows prosecutors to ask the court to indemnify a witness against prosecution if s/he implicates him/herself in giving testimony against a third party. In the case of the prosecutions of Wouter Basson and Eugene De Kock, many of the witnesses who came forward only did so because they themselves could have been prosecuted, but they were offered indemnity if they gave evidence and if the judge believed their testimony to be credible. Section 105A of the Criminal Procedure Act allows prosecutors to enter into a plea bargain with perpetrators of crimes, under certain circumstances, a tool that is often effectively used by prosecutors to obtain justice without lengthy court battles. If prosecutors can already take advantage of these legal measures even more questions can be raised about what the state hopes to achieve with the new policy.

 

I cannot speak on behalf of victims of apartheid. Nor do I wish to take issue with the policy on technical legal grounds. I wish to raise my voice as someone who worked as an investigator and analyst for the TRC for three harrowing years and say that this policy is an insult to our history. It is a violation of the TRC process. It is also unnecessary. It is extremely unlikely to lead to more details about human rights violations of the past coming to light. It is even more unlikely to lead to restitution for victims. It will however entrench impunity which we, as a nation, simply cannot afford. The Legal Resources Centre, on behalf of the families of victims, is set to launch a legal challenge to the policy. As important as a legal challenge is, surely the NDPP sees that it is a waste of resources that can be avoided by simply retracting the policy.

 

Chandré Gould, Crime and Justice Programme, ISS Tshwane (Pretoria) Office