Court throws out NPA amnesty policy

Court throws out NPA amnesty policy

The Pretoria High Court has put a stop to what could have amounted to a second amnesty for the perpetrators of gross human rights abuses under apartheid, says a report on the IoL site. The court on Friday struck down amendments to the NPA's prosecution policy, adopted in 2005 to deal with some of the 'unfinished business' of the Truth and Reconciliation Commission.

The final TRC report identified about 300 cases for possible prosecution of those perpetrators of human rights abuses that were either denied amnesty, or did not apply. The controversial NPA policy was challenged last year by the widows of Ford Calata, Matthew Goniwe, Sparrow Mkhonto and Sicelo Mhlauli – the so-called Cradock Four – and the sister of missing MK operative, Nokuthula Simelane. They argued that the amended prosecution policy allowed the NPA to re-run the TRC's amnesty process and grant effective indemnities from prosecution to those who had been refused, or failed to apply, for amnesty from the commission. They also argued that the policy would entitle the NPA to decide not to prosecute, even in circumstances where there was adequate evidence to justify prosecution. The court agreed that the policy amounted to a 'copy cat' of the TRC amnesty process, ruling that the policy was unlawful and a 'recipe for conflict and absurdity'.
Full report on the IoL site

The ruling effectively means political crimes must be treated like other crimes. 'Crimes are not investigated by the victims. It is the responsibility of the police and prosecution authority to ensure that the cases are properly investigated and prosecuted,' said the court, according to a report on the News24 site. Hugo van der Merwe, of the Centre for the Study of Violence and Reconciliation, said that the NPA had applied for and made amendments to its powers in December 2005 to give itself 'room in which to manoeuvre'. 'As I understand it,' he said, 'the NPA came under a great deal of pressure not to prosecute – and this came from across the political spectrum.' Van der Merwe told The Sunday Independent that there had been huge 'political sensitivity' attached to the cases that should still have been prosecuted. He said many senior members of the ANC and the PAC had not applied for amnesty during the TRC and did not want to be prosecuted now. 'So the NPA had to find a way in which it could offer amnesties. Van der Merwe, and Comfort Ero, of the International Centre for Transitional Justice, said that the NPA had now to get on with prosecuting properly. Ero said the judgment upheld an important principle of the rule of law in a democratic state, 'namely that where there was sufficient evidence to prosecute, the NPA must comply with its obligation under the constitution'.
Full report in The Sunday Independent
Full report on the News24 site
See also a Beeld report


Published in: Legalbrief Today
Date: Mon 15 December 2008
Category: Litigation
Issue No: 2218

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