The irony here is that it is common knowledge that a deal has already been struck with the NPA which assures both the accused that they will not go to jail. The question that must be posed is if a deal is already struck with the accused where is the justice?

No sooner had the prosecution been announced but from the other side of the divide, Mr. Dirk van Eck, an Afrikaner announced that he too would seek redress in the courts for the loss of his wife and three young children who were killed on December 15 1985 when the vehicle they were traveling in, on a dirt road in a game farm, detonated a landmine planted by two African National Congress (ANC) combatants.  Many fear that this is not the way to go if true reconciliation is to be achieved; arguing that it will lead to a witch-hunt of anyone and everybody involved in the past who did not get amnesty from the TRC, including F.W. de Klerk, and in doing so totally undermine the work of the TRC. But at the same time victims and survivors of the past must have recourse to truth, acknowledgement and apology if reconciliation is to have any meaning. The fact of the matter is that by and large the TRC did not deliver the truth and people need to know what happened to loved ones before reconciliation can be achieved.

However, there is another greater fear! The legislation that brought the TRC into being came directly from a stipulation in the interim constitution of 1993 which called for a spirit of reconciliation that would encourage “understanding but not vengeance, a need for reparation but not retaliation, a need for ‘ubuntu[1]’ but not victimisation”. The new legislation allowing the National Director of Public Prosecutions (NDPP) to make decisions about who or who not to prosecute came as amendments introduced to the National Prosecuting Policy in December 2005, and only adds to the fear that those that did not avail of the TRC amnesty are being given a second chance. The fear is that a separate legal track and ‘de facto’ a second amnesty process for perpetrators of apartheid-era crimes is in the offing. Rather than evaluating cases on the basis of evidence, the NDPP is given the discretion in cases of crimes of the past to make prosecutorial decisions based on erroneous criteria such as “the degree of indoctrination to which the alleged offender was subjected”; “the degree of remorse shown by the offender” and the extent to which the prosecution may affect national reconciliation. The criteria and powers being conferred on the NDPP constitute a rehashing of the initial amnesty process of the TRC rather than the promised pursuit of prosecutions that underpinned the historic compromise.

The amendments not only provide an unconstitutional second amnesty bid, they also establish a process that makes no provisions for the needs of victims.  Under the policy, the National Prosecuting Authority can negotiate deals with accused perpetrators behind closed doors, with no obligation to involve victims or to disclose the truth of these crimes publicly. This has led to a legal challenge to these amendments. The applicants, victims and survivors, are challenging this policy in the high court arguing that the application of the policy will constitute a violation of both South Africa’s own Bill of Rights and international law, which obliges the state to prosecute crimes of this nature.  Those bringing the application have waited years for justice in respect of the crimes committed against their loved ones. Despite the fact that there is sufficient evidence relating to the crimes in question and that the perpetrators were not granted amnesty by the TRC, no prosecutions have been forthcoming. The longer prosecutions are held off, the less likely they will be successful as evidence is lost and memories fade.

In instituting this challenge to the prosecution policy, these families are seeking to ensure that they are afforded the same access to the justice system as all South Africans, and that decisions to grant indemnity from prosecution are not made by state officials in accordance with politically contrived criteria, as is the case with the new prosecution guidelines. 

If the new South African prosecutions policy is to be applied, it will add to the international notoriety of the South African process, but for all the wrong reasons.  In providing a “back door” amnesty at the stroke of an administrative pen, the South African government will have completely undermined the rationale of the TRC, and will have further betrayed the victims who still wait for justice.

The quest for true reconciliation continues but the latest legislation offers little hope of advancing this long sought after goal of a reconciled nation.

-Sean O'Leary, M.Afr., Dennis Hurley Peace Institute, Pretoria, South Africa

[1] ‘Ubuntu’ an African philosophy which argues that a person is a person through people

[2] This article threw heavily from an article written by Graeme Simpson from the International Centre for Transitional Justice in New York