A "culture of impunity"
Successive amnesties may send out wrong signals:
encouraging rather than alarming criminalsGraeme Simpson
Much has already been said about the media's handling of the recent high profile rape cases in the Johannesburg suburbs of Malvern and Observatory. In particular, it was suggested in this column yesterday that it was almost as if the commercial press had only just "discovered" the magnitude and seriousness of the rape problem in South Africa.
To its credit, the same cannot really be said about government. Indeed, at least as early as May 1996 - when the Cabinet approved the National Crime Prevention Strategy (NCPS) - government signalled its recognition of the problem. Violence against women and children was specifically identified as one of several crime priorities within the NCPS. In signalling the government's political will to tackle this crime issue head on, the NCPS acknowledged that the solutions lay not only in the crucial task of re-engineering South Africa's criminal justice system, but also in civic education, popular culture changes as regards crime, and in environmental design which makes such criminal behaviour more difficult to engage in.
The NCPS also recognised the grave danger which crimes such as rape and child abuse indirectly pose to South Africa's embryonic human rights culture. If popular confidence in the rule of law and in the effectiveness of our criminal justice system cannot be restored - if we continue to fail to catch and prosecute rapists and other criminals - then our hard won Bill of Rights will be discredited as serving only the interests of the criminals, rather than potential victims of crime, or the society at large. The NCPS is emphatic that we cannot allow any growing sense of criminal impunity to undermine government's commitment to these fundamental human rights.
However, this is the context which makes the Minister of Justice, Dullah Omar's, response to the Observatory and Malvern rape cases so disturbing. Of course his outrage at these rapes is well-placed. So too is his concern - in general - with poorly applied bail laws. Yet his suggestion that, if need be, he would seek to amend the Constitution so as to further restrict the rights of an accused to seek bail, implies a willingness to encroach upon the fundamental right of an accused to be presumed innocent until proven guilty.
In the face of legitimate public outrage about the burgeoning problem of rape - as well as the somewhat less legitimate "trial by media" of an innocent accused - this rather dangerously suggests that problem lies with our constitutionally enshrined Bill of Rights, rather than with the functioning (or non-functioning) of our policing and justice institutions. Yet it should be precisely from such high popular emotion, that our new Constitution ought to protect individual rights. Instead, our collective human rights are potentially to be sacrificed through being misconstrued as the source of criminal impunity.
Our bail law is already appropriately restrictive in respect of people accused of violent crimes. In order to protect society, our law states that it is the onus of the accused in such cases to prove why they should get bail, rather than the obligation of the prosecuting authority to show why they should not. This gives our courts considerable discretion to refuse bail, as long as the investigating officer and the prosecutors are gathering evidence and doing their jobs effectively. If there is a problem, then it may be in the inefficiency or lack of community accountability of the investigating officers and prosecuting authorities - it certainly is not with the Constitution!
Minister Omar's comments are not only worrying, but also ironic. The irony lies in the "culture of impunity" which although rooted in the apartheid era, appears to be gaining momentum in post-apartheid South Africa. This "culture of impunity" is not exclusively a consequence of failures in the criminal justice system, but is arguably compounded by government's apparent propensity to extend "amnesties" in respect of criminal behaviour - albeit politically motivated in some instances.
Recently, in response to a request from the Truth and Reconciliation Commission (TRC), we have witnessed the State President approve an extension of the amnesty date for politically motivated human rights violations. We have also seen government approve a short-term amnesty for "tax dodgers". Finally, it has also been mooted that a special amnesty arrangement be negotiated as a vehicle for "resolving" the conflict in KwaZulu-Natal, although this has not been approved by government and has been opposed by the Inkatha Freedom Party.
We simply cannot, at one and the same time, recognise that the roots of violent criminality in South Africa reside within the historical politics and dehumanisation of the apartheid era, but simultaneously simply ignore the impact which politically-motivated amnesties may have on the credibility of our criminal justice system. The criminalisation of politics and the politicisation of crime are two sides of the same coin.
I do not raise this point in order to take issue with the politically negotiated amnesty arrangements which are entrenched in our Constitution and which lie at the heart of much of the work of the TRC. When confronting the legitimate frustration of victims of human rights abuse who are angry that full justice cannot be done, the point is well taken that without such an amnesty agreement, we may never have secured our new democracy. Furthermore, because of the lack of access to the sort of information necessary to secure prosecutions, only a very few of apartheid's victims stood much chance of succeeding with criminal charges or civil claims against the perpetrators. It is also arguable that our over-burdened criminal justice system - the police, the courts and the prisons - could never have handled all these claims.
Nonetheless, until recently, the TRC could happily deflect these legitimate frustrations of victims and survivors, by arguing that the amnesty was a political agreement reached between the ANC and the National Party during the negotiation process. However, they can offer no such explanations to the victims of the right wing pipe-bombings which occurred during the run-up to the 1994 elections, as it is the TRC itself which has sought to extend the amnesty to cover these incidents.
There are a number of rationalisations proffered by the TRC to explain this extension of the amnesty cut-off period from December 6 1993 (the date on which the interim Constitution was finalised) to May 10 1994 (the date of President Mandela's inauguration). Some of these explanations relate to why the latter date is more appropriate than the former, some to the legal niceties of why it is impossible to draw workable distinctions between offenses committed on either side of the original date - as if it is any easier to do so in respect of the latter date. The bottom line, however, is that this is a political intervention by the TRC to trade impunity of the election bombers for the cooperation of certain right wing elements with the TRC.
It is precisely this sort of political intervention, however it is explained or justified, which attracts a certain moral responsibility for the "culture of impunity" which it inadvertently services. In my view, the Worcester and Rustenburg bombings are as clear a manifestation as any of this sense of impunity.
In this context, the mooted amnesty for KwaZulu-Natal is even more of a concern. Although it is to his credit, it is nonetheless ironic that TRC Vice Chairperson Dr. Alex Boraine has spoken out in the media opposing this proposal, because, in his view, it will compromise the integrity of the TRC and the TRC amnesty process. Yet it would cumulatively be even more devastating to the integrity of the South African criminal justice system.
Whatever its shortcomings at the level of implementation, the NCPS has at least one striking analytical strength: it seeks to remove violent crime from the realm of political legitimisation and insists that we rescue our criminal justice system from the historical association between politics and crime in South Africa. As regards ongoing conflict in KwaZulu-Natal, the implied imperative is that we begin to treat violence - however it is rationalised - as criminal.
If government even contemplates the KwaZulu-Natal special amnesty, it will not only damage its own credibility in respect of fighting crime, but it will further contribute to the growing "politics of impunity" from which our criminal justice system and the rule of law in South Africa may struggle to recover. There are undoubtedly times when we may have to sacrifice principles in the name of pragmatism, in order to end wars or to achieve peace. However, so long as we do this with scant regard for its impact on the credibility of our criminal justice processes, we breathe life into the culture of impunity which is the foundation stone of criminal behaviour in our society. At some point, we will have to bear the moral responsibility - not only for the bombs in Worcester and Rustenburg, but also for the rapes in Malvern, Observatory and in suburbs and townships across the country.
Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence and Reconciliation.
In The Star, 24 January 1997.
© Centre for the Study of Violence and Reconciliation
