By Stephen Charnas and Joris Kooiman
Recent suggestions in the media that South African President Jacob Zuma is considering granting a pardon to convicted former apartheid hit squad commander, Eugene De Kock, has again brought into focus the state of reconciliation and healing in South Africa more than a decade after the conclusion of the Truth and Reconciliation Commission (TRC).
The TRC was set up with the purpose of creating a forum for baring the truth about politically motivated atrocities committed by both sides during the apartheid era, offering amnesty for full disclosure, in the hope of cleansing the soul of the reborn democratic nation.
However, such a public attention-grabbing political move as Zuma releasing a notorious apartheid perpetrator in the name of reconciliation, conveniently diverts attention from some of the most critical impediments to the reconciliation process. Seen against the backdrop of the government's inadequate execution of its obligation regarding the compensation of victims in the form of financial reparations, as established by the TRC, populist talk of reconciliation rings somewhat hollow.
At the time, the concept of a TRC was lauded as a truly visionary instrument for facilitating the emergence of a new South Africa out of the traumatic experiences of the past. Perpetrators from both sides appeared at public hearings to reveal details of their activities in an effort to afford a semblance of acknowledgement and dignity to the victims' surviving relatives. It was hoped that the unconditional acceptance of responsibility by those that performed the terrible deeds would form the bedrock on which everybody could play their part in moving from a society governed by racial oppression towards a one based on mutual respect and equality.
The present situation involving De Kock makes for thought-provoking examination. From 1983-92 the man who came to be known as 'Prime Evil' commanded the SA Police's counter insurgency unit, responsible for carrying out the regime's 'dirty tricks', based at the Vlakplaas farm near Pretoria.
In his appearance at the TRC, De Kock revealed details of a number of covert operations against the ANC and others, but the commission ultimately held that he had not made a sufficiently full disclosure and granted him only partial amnesty. This left him open to criminal prosecution, and in 1996 he was convicted on 89 charges, including six of murder, two of conspiracy to commit murder, multiple fraud and the illegal possession of arms and ammunition, and was sentenced to an effective 212 years in prison.
Interestingly, one of his biggest lobbyists comes in the form of well-respected associate professor of psychology, Pumla Goboda-Madikizela, who sat on the Human Rights Committee of the TRC. Gododa-Madikizela subsequently conducted extensive interviews with De Kock, which led to the publication of her book, A Human Being Died Last Night. She paints De Kock as a product of his environment, who believed wholeheartedly that he was doing his duty but who has since come to understand the consequences of his actions in a wider context and feels sincere remorse. Goboda-Madikizela also views De Kock, a colonel, as a scapegoat who took instructions from leaders of higher rank, none of whom have been brought to book.
The main thrust of her argument, however, revolves around the concept of restorative justice, aimed at finding a harmonious future balance. In theory, letting go of retributive inclinations and facing up to the whole issue by having it out in the open, will have a therapeutic effect on the population, allowing the nation to move forward as an integrated whole. Therefore, she argues, the continued incarceration of the likes of De Kock keeps the ordeal of the past alive, preventing the victims from being able to recover fully.
In principle, the preference for such a method of settling the score is a noble endeavour and an extraordinary act of compassion. Notwithstanding the best of intentions, however, many people are left with a sense that the process is incomplete and that its lofty goals remains unfulfilled. There is a widespread feeling among South Africans that the full truth remains elusive. There are still too many unanswered questions regarding those who sat at the top of the tree. In the spirit of peaceful transition, a number of former apartheid government officials and leaders of the police and military received high-ranking positions in the institutions of the country's first post-apartheid interim government of national unity, before retiring on hefty state pensions, while the bulk of those that bore the brunt of the oppression saw little change in their fortunes once the euphoria that followed political emancipation had died down.
The counterfoil to the granting of amnesty – or in the De Kock case, pardon – is reparation. To validate the TRC, both these constituents of the process must be administered in balance. In Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others (1996), the Constitutional Court unanimously concluded that the epilogue of the Interim Constitution of South Africa (Act 200 of 1993) contains a requirement for a law to be adopted by parliament, which would provide for amnesty for perpetrators while equally providing for reparations for victims of the political conflicts of the past. Section 42 of the TRC Act provides for a reparations and rehabilitations policy, for the committee to make recommendations for interim measures for interim relief, and for the establishment of a President's Fund, from which all monies payable to victims would be disbursed.
Sadly, this has not been forthcoming and, due to an attitude of total indifference on the part of government, the process of disbursement of reparations has come to a standstill. "We have engaged government of many occasions with regard to the reparations matter and every time we meet they acknowledge that they recognise their obligations. Yet, that is a far as it ever goes, and now having exhausted all reasonable attempts to compel government to fulfil its duty, we are considering the course of legal action to force the state to stop dragging its feet," says Dr. Marjorie Jobson, National Director of Khulumani Support Group, which represents victims that participated in the TRC.
So, what message of reconciliation will the grandiose pardon of an apartheid villain send to the majority of the population? The humanity – known in African culture as ubuntu – shown by the victims of apartheid towards their abusers is staggering, but it is not to be disrespected. The spirit of forgiveness and reconciliation is far more willingly forthcoming when the wronged party is making progress previously denied to them, but while the people who benefited most from the system of racial inequality still enjoy the good life, those who suffered, suffer on. If the primary aim of reconciliation is to attain a state of equilibrium, then the release of De Kock could be viewed as further upsetting the balance rather than restoring it. The spirit of a reconciled future in the hearts of the people can never flourish while the economic inequalities of the past endure. If pardoned, De Kock's criminal record will be expunged, as if the horrific acts had never occurred. Where is the justification, where is the quid pro quo?
Should Zuma opt to grant De Kock a pardon it could give rise to an interesting legal test. While the very idea of a presidential pardon can be questioned in the context of a constitutional democracy, the recent Constitutional Court decision in Albutt v Centre for the Study of Violence and Reconciliation and Others held that presidential discretion is not absolutely unfettered. Pardon remains an executive decision but the court held that there has to be a rational connection between the aim of granting the pardon and the process followed in ultimately reaching the decision to grant it. Under normal circumstances, the president is not obliged to explain his reasoning but if challenged in court on the basis of illegality through 'bad faith' or 'irrationality' then, in order to refute the contention, the details of the thought process will have to be revealed and decided upon by the judge within very narrow parameters. The court's ruling was limited to a particular issue in relation to pardon applications made in terms of Thabo Mbeki's 'special dispensation'.
In 2007, erstwhile President Thabo Mbeki recognised the need to deal with the 'unfinished business' of the TRC, setting up a window period within which people could apply for a special presidential pardon, strictly in respect to acts committed with a political motive prior to 16 June 1999. Usually, the president is free to exercise his discretion in granting a pardon, but in a gesture aimed at resolving the perceived 'loose ends' of the TRC, Mbeki created a 'special dispensation' for pardon applications, establishing a committee to submit recommendations upon which he would be guided but not bound in reaching his ultimate decision.
No provision was made for the participation victims' familiesin the process, and an application for them to be heard was rejected by government. In the Albutt case, unrelated to De Kock's but bearing strong similarities to his situation, the Court held, confining itself strictly to cases falling within the scope of Mbeki's 'special dispensation', that in this specific situation, the opinions of the victims had a rational connection to the aim of achieving reconciliation, and therefore interdicted the president from making a final decision until he had considered the views of the victims. In De Kock's case, such a ruling may, in fact, boost his chances of freedom as the views expressed by some of his victims' families – whom he met with face-to-face – suggest support for his release, although vehement opposition has come from victims' support group Khulumani.
Regarding De Kock's application – which does not fall within the scope of the Mbeki 'special dispensation' – a variation on the question raised in Albutt may need to be interrogated: can there be said to be a rational connection between the release of De Kock and the spirit of reconciliation, in the absence of the actual implementation of active measures to distribute reparations to the victims?
"Under the prevailing circumstances regarding the absolute negligence of the government to distribute reparations to victims, we would consider it a blatant act of 'bad faith' if the President were to frame a possible pardon for De Kock under the banner of reconciliation. Moreover, claiming to bring the people of the country together in the name of resolving the past certainly bears no rational connection with the concept within this context," added Dr. Jobson of the Khulumani Support Group.
In many ways the government has failed its people by neglecting to pay adequate attention to the plight of the TRC victims. Doubts about its commitment to the task are borne out by the fact that the issue of the victims' right to be heard in the assessment of applications for pardon by perpetrators needed to go all the way to the Constitutional Court before the president was ordered to relent and lend them his ear.
In isolation, to forgive one of the apartheid era's most infamous characters might be seen to be an act of compassionate humanity, but set in a context in which many of the obligations undertaken to assist in alleviating the pain of the victims remain unfulfilled, it starts to look somewhat disingenuous.