NPA must prosecute apartheid commanders

YASMIN Sooka, head of the Foundation for Human Rights and former Truth and Reconciliation commissioner, posed a critical question to the nation this week: At what point will the National Prosecuting Authority (NPA) indict those at the command level? She was referring to the ministers, generals and commanders of the apartheid era who ordered killings and evaded the TRC. It is a question that can no longer be swept under the carpet any more than it could in Germany after the Holocaust or in Chile after Pinochet.

Only two weeks ago, Guatemala convicted four high-ranking military officers for rape and enforced disappearance that took place in 1981. In Latin America, hundreds have been prosecuted and convicted for crimes committed by military juntas in the 1970s and 80s.Germany, even today, is still pursuing surviving Nazis responsible for atrocities.

Successive post-apartheid administrations have failed to deliver on their statutory and constitutional obligations to bring to justice those perpetrators who were denied amnesty or failed to apply for it.

According to advocate Howard Varney who has led the charge to seek justice for the victims, not only have these matters not been vigorously pursued by successive administrations, but active steps have been taken to subvert the course of justice. Of the more than 300 cases which the TRC recommended to the NPA for further investigation, only a handful have been pursued over the course of the past 24 years.

What is more, in 2004, the government established a secret “Amnesty Task Team” to explore avenues to avoid criminal prosecutions of cases arising from the TRC process. Among the proposals made was an amendment of the prosecution policy to permit the NPA to decline to prosecute on various new criteria. According to Varney, it effectively allowed for a back door amnesty under the guise of prosecutorial discretion.

Another impunity measure proposed by the task team was a programme of political pardons to be processed behind closed doors. In 2009, the high court issued an urgent order restraining the president from granting such pardons and, in 2010, the Constitutional Court confirmed that victims had to be consulted before political pardons could be granted. To date no one has been pardoned under this dispensation.

But perhaps most concerning is the fact that political interference was brought to bear on the nationaldirector of the NPA at the time, Vusi Pikoli, which is alleged to have emanated from the ministerial level. Such pressure caused the investigation and prosecution of all apartheid-era cases to be suppressed.

One of those cases was that of the activist Nokuthula Simelane, who was abducted, tortured and disappeared by the Security Police in 1983, and the TRC had recommended that the suspects face justice. For years the family pleaded for the state to act, but were forced in 2015 to seek an order from the high court compelling the NPA to make a prosecutorial decision in respect of the known suspects. Since the indictment of four accused there were four postponements to resolve the issue of legal assistance to the suspects. In the agonising wait for justice, Simelane’s father and brother have died.

In a landmark judgment this week, however, Justice Cynthia Pretorius ruled that the state had abysmally failed Simelane and the family, and the police must pay the legal costs of apartheid police accused of murder, and the accused must face a swift trial.

This was a victory for the TRC process, albeit 24 years too late.

A coalition of human rights lawyers and activists are now pursuing justice in 20 cases of apartheid-era crimes. Those cases include the murders of the Cradock 4 and the Pebco 3, and the deaths in detention of Neil Aggett, Matthews Mabelane, Hoosen Haffejee, Suliman Babla Saloojee, Jacob Monnakgotla, Solomon Modipane, and Nicodemus Kgoathe. The latter died in detention on February 4, 1969, after “slipping in the shower” at the Silverton Police Station, and Modipane died three weeks later after “slipping on a piece of soap”.

But it is more than the foot soldiers of the apartheid machinery that must be held accountable for these crimes. The commanders who ordered their deaths bear even greater culpability, even if they weren’t involved in the physical act of murder.

In the case of the attempted murder in 1989 of church leader Frank Chikane, Pikoli concluded that former Minister of Police Adriaan Vlok and former commander of the Security Branch JV Van der Merwe failed to disclose their crimes in full, and therefore declined to grant them immunity from prosecution.

In their application for a political pardon, Vlok and Van der Merwe admitted the existence of a hit list drawn up by the police and army, but refused to disclose the modus operandi employed in other hits, or expose the identity of any living person responsible for the crimes. They also declined to reveal other names of victims on the list.

There can be little doubt that Eugene de Kock was the fall guy for the apartheid security machinery. He merely did the dirty work for his superior officers and the politicians of the day. An investigation docket was compiled in respect of one of his superiors, General Krappies Engelbrecht, but the investigation was allowed to die a slow death.

The question remains: why have the commanders never been brought to justice? Why are they being protected?

Vlok’s washing of Reverend Chikane’s feet to atone for ordering his death was little more than political theatre. There was never any real remorse in what Vlok and Van der Merwe said.

Like most officers who applied to the TRC for amnesty, they confined their disclosures to what was already in the hands of investigators.

They were simply protecting themselves and their fellow conspirators. They were sticking to the golden rule of the apartheid security establishment – only disclose what you must to protect yourself – and never implicate any living colleague.

It is high time for those that gave the orders to be held accountable.

Ebrahim is Independent Media’s foreign editor

AT THE END of apartheid South Africa was regularly described as the second most unequal country in the world, after Brazil. But inequality in Brazil declined significantly under the presidency of Lula da Silva. Lula did not directly confront capitalism or try to build socialism. But he did put in place a number of measures, including a minimum wage, a system of grants, and more equal access to urban space, that resulted in a significant reduction in inequality. Lula’s progress had two sources: backing from powerful social movements and trade unions, and first-class evidence-based research on policy-making.

However, in South Africa, inequality has not declined. In fact, it has worsened. This is a devastating outcome that very few would have expected in 1994. The situation is worsened by the fact that, as in Brazil, inequality is a highly racialised phenomenon in South Africa. Mass poverty, affecting millions, is a human rights disaster. It is also a completely unsustainable situation. Rates of protest are among the highest in the world. Urban land has become a particular point of contention.

Our political context needs to remain wary of demagogic leaders who exploit people’s suffering to advance their own will to power. Serious issues like inequality will not be resolved by authoritarian populism. What we require is democratic mass organisation allied with evidence-based research into policy.

A recent symposium on inequality at the University of Cape Town was an important moment in the development and discussion of evidence-based research into policies that can directly attack inequality. Some of the key themes that emerged related to youth, education and employment. It became clear that the education crisis and massive youth unemployment are directly related, but, also, entirely unsustainable.

We will not be able to address inequality if we can’t address the crisis of youth unemployment, and the crisis of youth unemployment will not be addressed if we don’t address the crisis of education, and find a way to achieve inclusive economic growth.

Resolving the education crisis is not only a matter of funding; it is also a matter of political will. Although the decline in education funding should certainly be reversed, the fact remains that South Africa spends more money on education than most countries with similar income levels. The reason that money is producing such a shockingly bad education system is because there has been a lack of political will to ensure that the money is used wisely and fairly. That political will would have to include a willingness to confront a notoriously corrupt teachers’ union.

Recent research shows that within two years of Grade 12, 68% of school-leavers had absolutely no post-school enrolment. The fact that learners are not passing matric is not due to lack of commitment. Enrolment remains high even for 18-year-olds. There are, nonetheless, high repetition rates in all grades and only 26% of learners achieve a bachelor’s or diploma pass, making entry into the labour market extremely difficult.

We live in a country where 5.8 million people are unemployed and mostly young. This is a grim reality that must be faced and dealt with by all the resources at our disposal.

Research finds that young people experience several kinds of deprivation simultaneously. This extends beyond income poverty alone and includes, for instance, the already mentioned poor educational outcomes, but also a lack of access to adequate housing, sanitation, electricity and – quite importantly in this day and age – connectivity. This is referred to as multidimensional poverty. It’s an important concept to grapple with for those thinking about how to remove the obstacles in our youth’s lives and their ability to move out of poverty. At least 33% of young people in South Africa are multidimensionally poor. Placing this statistic alongside the fact that 60% of youth live in income poverty demonstrates the scale of the challenge.

Our sluggish growth also impacts youth unemployment negatively. So, working towards inclusive growth is expected to have a positive effect on youth unemployment. In addition, in South Africa, 68% of people find jobs through networks (social capital). But most poor, unemployed youth have little or no access to these networks, and have very little access to information and career guidance. Again, improving this can ensure an easier connection to the labour market for some young people. Worth noting is the fact that academics and researchers alone can’t generate the political will that the government requires to be an efficient and effective actor. That is the work of multiple stakeholders, including the state, civil society, the media and labour.

However, political will on its own doesn’t guarantee positive outcomes. History is littered with examples of governments that have had good intentions but have failed to achieve positive results. For political will to translate into effective action, first-rate scientific research is required. Excellent research needs to be aimed at the state and be shared among all people to achieve better outcomes.

Focusing our energies on addressing youth unemployment and mobility is one of the many critical areas that need to be addressed to close the inequality gap in South Africa. For this reason, progressive academics and researchers are recalibrating and rethinking how to apply their skills in the service of the dispossessed.

Buccus is senior research associate at ASRI, research fellow in the School of Social Sciences at UKZN and academic director of

a university study abroad programme on

political transformation. Buccus promotes

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