Battle to raise bar for all
Fight requires government, judicial and political intervention with support of civil society
TRANSITIONAL justice, in the South African context, is the transition from oppression, suppression, and repression of apartheid to total liberation and justice. The old inherited organs of justice and the new, non-judicial organs, like the Truth and Reconciliation Commission, are used.
Both types are inadequate. We need to exercise a strong will to address the inadequacies so that there is a transition to true justice.
The challenge for the South African experience of transitional justice is what unique and original contribution can we make to the international experiences of transitional justice?
Do we rely primarily on South African organs of state power, non-judicial organs of power and civil society, or on international institutions?
The tangible objective is justice for victims and the intangible objective is the restoration of human dignity to the survivors, inclusive of restorative justice. These twin objectives should aim to eradicate racist and colonialist values and assert democratic, non-racial, and non-sexist values.
Although the Mandela presidency had enacted the TRC Act, the Mbeki era hindered the implementation of TRC recommendations because of the cuts in social spending. The TRC-recommended reparation of R120 000 was cut to R40 000 per victim.
Economic and political factors delay the administration of justice, impede reconciliation, and the triumph of mercy over justice. They slow down the transition process and increase the pain of transition.
Transitional justice is supposed to transform all organs of state power – from police to prison, including the judiciary. It acknowledges that it cannot manage the heavy case load of crimes against humanity.
The belated inquests are an opportunity to inquire into and prosecute the most serious crimes in order to give psychological and political relief to the nation and message the world that torture, arbitrary imprisonment and abuse of the criminal justice system should never be tolerated anywhere in the world.
The inquests may be considered as a crucial part of nation-building.
The political and economic impediments to transitional justice narrow the scope of justice instead of broadening it. Only the removal of the impediments can restore the confidence of the people in the government and the criminal justice system.
People who lived in poverty had supported the liberation Struggle in expectation of enjoying the material benefits of freedom and democracy.
But the apartheid/democracy duality and its tensions between poverty and wealth continue to subsist.
Poverty and peace are in antithetical relationship. Crime, being embedded in poverty, disturbs social peace and transitional justice has become overloaded with criminal cases against which crimes against humanity have to compete for financial and human resources.
As early as 1999 the democratic government introduced an invasive virus into transitional justice by creating the Scorpions, with investigative/prosecutorial duality against the background of Mbeki/Zuma political rivalry. Its location in the National Prosecuting Authority under the ministry of justice and constitutional development brought it into direct conflict with the SAPS and NIA.
By 2005, critical questions were raised about its mandate because of its abuse of dual powers that violated human rights.
In the same year former president Thabo Mbeki, who had created the Scorpions, was compelled to appoint the Judge Sisi Khampepe Commission of Inquiry to “inquire into, make findings, report on and make recommendations” in relation to the mandate of the Scorpions.
The commission, based on evidence, found that the implementation of the legal mandate of the Scorpions was not satisfactory, especially, the leaking of information to the media, which prejudiced the persons under investigation.
This abuse of power by the Scorpions violated the rights and freedoms protected under the Bill of Rights. The commission effectively recommended the dismantling of the Scorpions, which the ANC Polokwane Conference adopted as a resolution in 2007.
The commission somewhat helped to safeguard the integrity of transitional justice. The Scorpion blemish was entirely the making of the ANC government for the dominant faction of the political elite to neutralise or to destroy the subordinate faction.
The second major blemish on transitional justice was the Marikana Massacre in 2012.
The militarised police, armed with heavy artillery, in military formation drove the peaceful, protesting miners against the fence and massacred them on the pretext that a single miner (probably a hired agent provocateur) had fired a bullet from a handgun.
This was the ultimate abuse of human rights over a labour dispute.
So the bloody echo of the Sharpeville Massacre replicated itself in the Marikana Massacre 52 years later.
Fighting against impunity and for the rule of law requires government, judicial and political interventions with the support of civil society, especially the faith communities.
Aziz is an author and journalist