Keep politicians away from Truth process

When the former Minister of Transport and good friend of Schabir Shaik, Mac Maharaj, and the leader of the DA, Helen Zille appear to agree on something, one should get worried. Both are arguing that that leaders of political parties should intervene to solve the crisis around the prosecution of those individuals who committed crimes but never applied for Amnesty from the Truth and Reconciliation Commission.

Maharaj and Zille seems to forget that one of the founding values of the Constitution is that our society is based on the Rule of Law. Mr Maharaj's statement is particularly troubling because he seems not to understand that in such a state based on the Rule of Law, everything can not and should not be sorted out by politicians.

"My concern with what is happening... is that what is a political problem is being shunted off to a bureaucracy to handle. The bureaucracy, no matter how much it is a legitimate State organ, is given the power to resolve matters behind closed doors, and even to the point where you and I will not know the truth. I don't accept that," he said.

The point is of course that in a democracy based on the Rule of Law, decisions on who should be prosecuted and who not must exactly be taken out of the political process and must be resolved by an independent body like the National Prosecuting Authority (NPA) to ensure that everyone is treated as equals before the law.

To argue that the NPA is just the bureaucracy and that the big boy politicians should sort out the mess, is to fundamentally misconstrue the nature of a Constitutional democracy. For once the Presidency has it right. Its Spokesperson points out that the politicians have already approved guidelines to be used by the NPA on who to prosecute and how not. These guidelines were approved by Parliament.

It is surely now for the NPA to apply these guidelines without fear or favour - that is without interference of the politicians.

Helen Zille's statement is more ambivalent. A generous interpretation is that she meant to say that these guidelines had to be revisited by the politicians. Once the new guidelines have been approved, they should be applied without political interference.

Of course, Parliament can pass legislation to provide blanket amnesty or to make some other arrangement to deal with the matter - as long as the legislation conforms to the Constitution. But if it did so, it would undermine the Truth and Reconciliation process. It would let all those people off the hook who rejected the TRC process and would in effect therefore vindicate their rejection of the process.

This is not an easy question to resolve. It is clearly upsetting many people and thus we get statements that further prosecutions would undermine reconciliation. One part of me have sympathy with this view, but then I have to ask: how can we have reconciliation if we do not have an acknowledgment of the horrors of the past? For a mother whose son was tortured and murdered by the ironically named security forces and who still does not know what happened to her son and where he is buried, reconciliation must be a hollow word.

As always perhaps it is the elites that will reconcile with each other so that they can make obscene amounts of money and live happily ever after, while the foot soldiers on both sides will not taste the fruits of the half-baked reconciliation at all. Is there any other way?

O Vlok, the past is unpredictable. . .

The present brouhaha about the prosecution of Adriaan Vlok and allegations of wrongdoing by ex-President FW de Klerk reminded me of the comment Evita Bezuidenhout made about the Truth and Reconciliation process. “The future is certain,” she remarked, “but it is the past that is unpredictable”

We will always be fighting about the past, Evita seems to say, because what the “accepted” view of the past is in a society, depends on our view of the present. If we were now to agree that Vlok and De Klerk gave illegal orders for people to be killed or (more likely) turned a blind eye so that the foot soldiers could harm or kill the opponents of the apartheid state, we must accept that there is no moral equivalence between the De Klerk’s and the Mbeki’s of our world.

For most South African’s this is a no-brainer. The one side supported a system that was declared a crime against humanity and the other side fought for liberation and freedom, so for most people there can never be moral equivalence between the apartheid state and all those white people who supported it on the one hand, and the ANC, on the other hand.

But for many white South Africans who have never come to terms with the horror of apartheid, it seems impossible to admit this and so they keep on arguing that the two sides “both did bad things” that we now have to forgive and forget.

However, that was not the (deeply problematic) compromise reached when the Truth and Reconciliation Commission was set up. It was agreed that we will only forgive that which was known, so that we could remember the evils committed in the past and could ensure that it be avoided in future.

What some of us did not know was that in its last years the apartheid state had made it impossible for us to know and thus to remember their evil deeds. As Terry Bell reported in a fascinating article in the Cape Times, during its last years in office it destroyed tons of files and other documentary evidence of the past.

Up in smoke went any chance of really finding out how evil the apartheid system was and to what extent the leaders like Vlok and De Klerk knew or orchestrated the torture and killing committed by security forces or their surrogates in the late eighties and early nineties. Thus De Klerk’s so called halo was kept in tact. That is also why he went to court to prevent the Truth Commission from making findings that would adversely affect his standing (and indirectly the standing of all white people who supported the system).

The present fight is therefore deeply meaningful because it is about who can be called “good” and who “bad”. Of course the ANC also did bad things, but like Britain in the Second World War they did them in the name of a noble cause. Few people today hark back to the decimation of Dresden by the RAF in which hundreds of thousands of German civilians were killed as few will hark back to the Magoo’s Bar bomb in 50 years.

This is because Vlok and De Klerk will find out that the past is unpredictable and that we will continue to re-interpret it in favour of the ANC as our society changes and the power of the De Klerk’s and their constituencies in South Africa diminish.

This is why some people get so upset about the ANC and pour scorn on everything it does. As anyone who reads this Blog will know, I have often criticized the ANC government for stupid and unwise decisions, but that is different from trying to discredit the government as government. Those who do the latter (some of them commenting at length on this Blog), seem to protest too much.

History will judge them harshly. More harshly, I would think than anyone in the ANC today – including fools like Yengeni and McBride.

What the Vlok is going on?

It is tempting to crack jokes about the decision of the National Prosecuting Authority (NPA) to prosecute Adriaan Vlok for the attempted murder of Frank Chikane, who at present is Director General in the Presidency. (“Poor Vusi Pikoli will have to wear waterproof shoes for the foreseeable future.”)

But it is not really a laughing matter. Vlok was rightly a much despised figure when he was the Minister of Law and Order from 1986 to 1991. He seemed to try to imitate President PW Botha by swaggering and threatening the “terrorists”. Either because of direct orders by Vlok or Botha, or because of hints and winks, the police hit squad activity increased during his tenure.

Many people were killed by the state during this period.

Vlok actually applied for and received amnesty for ordering the blowing up of Cosatu House and the headquarters of the South African Council of Churches. It was therefore a bit of a surprised when he washed the feet of Frank Chikane as part of his request for forgiveness for ordering the poisoning of Chikane, because he did not apply for amnesty in this regard.

The deal struck between FW De Klerk’s National Party and the ANC was to create a Truth and Reconciliation Commission which would give amnesty to any person who committed criminal acts, provided that those acts were associated with a political objective and the applicant had made a full disclosure of all relevant facts.

Implicit in this compromise was the understanding that those perpetrators who failed to apply for amnesty or failed to make a full disclosure could be criminally prosecuted. Some high profile prosecutions – Eugene de Kock (convicted) and Wouter Basson (acquitted) – followed, but most people who did not apply for amnesty were not prosecuted.

One reason for this was that it is difficult to prosecute those – like Vlok, Magnus Malan or De Klerk – who may have given direct or indirect orders to underlings to torture or murder opponents of the apartheid state. Such illegal orders were never given directly but were given obliquely if at all. Often Ministers merely had to hint that steps had to be taken to deal with a person or a situation for underlings to revert to torture or murder.

Of course, Ministers knew their hints would result in criminal acts, but liked the fact that they could not be directly held responsible for those deeds. That is why the claims by Mr. FW de Klerk and his supporters that he never ordered people to be killed or tortured or never knew these things happened should be taken with a pinch of salt. Even us ordinary people who only read the Weekly Mail knew people were being tortured and killed. Perhaps De Klerk and others are not legally responsible, but morally, they have a lot to answer for.

It is in that context that the prosecution of Adriaan Vlok should be welcomed. He clearly did not make a full disclosure about his activities as Minister of Law and Order and even recently has shown a remarkable lack of knowledge about what happened in his department while he was Minister of Law and Order. In his telling, he was an ignorant bumbling fool who did not know half of what was going on in his Department.

Of course, it would be problematic if he was the only one prosecuted for apartheid era crimes. The NPA is constitutionally required to make decisions about who should be prosecuted without fear favour or prejudice. This means where sufficient evidence exists, the NPA should also prosecute others who committed crimes in the name of political ideologies during the nineteen eighties and early nineties.

Cynics might well argue that the prosecution of Vlok constitutes a clever attempt by the NPA to bolster its image with its critics, who feels the NPA is used to carry out a vendetta against Jacob Zuma and other ANC politicians. By charging apartheid era politicians, the NPA can appear to show that it really acts against everyone.

To silence such cynics, it its important that the NPA also prosecute other perpetrators who did not make full disclosures to the TRC. Only time will tell whether this will indeed happen.