Yasmin Sooka, Head of the Foundation for Human Rights and former TRC 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 over 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. Amongst 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 backdoor amnesty under the guise of prosecutorial discretion.
Another impunity measure proposed by the task team was a program 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 National Director 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 agonizing wait for justice, Simelane’s father and brother have passed away.
In a landmark judgement 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 twenty cases of apartheid-era crimes. Those cases include the murders of the Craddock 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. Kgoathe died in detention on 4 February 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 footsoldiers 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 the former Commander of the Security Branch JV Van der Merwe, failed to disclose their crimes in full, and he therefore declined to give 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 Frank 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.