In addition, the National Prosecuting Authority under new head Shamila Batohi has been urged by MPs to prosecute those who did not appear before the commission and those not granted amnesty by the TRC.
As South Africa celebrates the Day of Reconciliation, Justice and Correctional Services Minister Michael Masutha said he was ramping up efforts to implement the recommendations of the TRC as part of the government’s national healing vision.
This includes exploring the controversial issue of presidential pardons, first mooted by former president Thabo Mbeki in 2008.
“I have been in touch with the president discussing how to remove the stumbling blocks affecting the process, and we’re now at an advanced stage,” Masutha said.
The minister said out of the 22000 identified as victims of apartheid atrocities before the TRC, around 4 000 have not collected the R30 000 set aside as a form of reparations.
“If they have passed on, it goes to their estate and their heirs would be entitled to it,” he said, adding that he would address the matter in the New Year.
Speaking to The Sunday Independent at his office in Pretoria on Friday, the minister said the number of people who appeared before the TRC to share details of the gross human rights abuses under apartheid was a “tip of the iceberg”.
“If you consider beatings, protesters, people across the board at mines or factories, people wrongly accused of taking part in the Struggle, people being subject to executions, torture, not every victim would have told their story to the TRC. We are looking at whether the list should be opened and how far back, but the question is can we realistically include everyone that has not been reached formally.”
Speaking at a Justice and Correctional Services committee meeting in October, ANC MP Loyiso Mpumlwana said that there were people who did not go to the TRC, but were known to have committed crimes during apartheid. “Others went to the TRC and did not get amnesty. What has the NPA done about these matters?”
A High Court judge, speaking on condition of anonymity, said reopening the TRC, which had a limited mandate and time-frame, would pose challenges because then it did not look at inequality, forced removals and land issues. He asked whether would it reopen under its limited scope or be broadened to cover the wider burning issues, in the process providing a safe space to discuss topics that have become divisive. The judge added that the debate around reconciliation has moved on quite radically and reopening the TRC would be artificial if done on a limited basis, ignoring new factors that have emerged.
Another concern is the possible tension between the TRC and organs of democracy, already dealing with issues around human rights. Director of research at the Centre for the Study of Violence and Reconciliation in Cape Town Dr Hugo van der Merwe said reopening the TRC list to allow additional victims to come forward and tell their stories and claim reparations is the logical follow up to the dramatic, but brief process that was provided by the TRC.
“Many victims at the time were not ready to share their stories, not sufficiently informed, or scared of speaking out. This process is one that should be allowed to unfold at the pace that works for victims. All other recent truth commissions have left this process open to victims as the governments recognise that this claim for reparations is a basic human right,” he said.
Van der Merwe said while victim accounts may raise new questions of criminal accountability, it was unlikely that startling new evidence would emerge, adding that the NPA already has evidence handed over by the TRC that have not been pursued.
“More accountability even for historical crimes is a critical element in building a human rights culture and a more responsive and independent NPA,” he said.
While not divulging details as they are still being finalised and would require the blessing of the president, Masutha said that implementing the TRC recommendations would also involve looking at the issue of presidential pardons.
Mbeki established a special pardons process to deal with the “unfinished business of the TRC”. More than 2100 accused of apartheid-era crimes have reportedly asked to be pardoned. But in 2009, following a court bid by several civil society organisations, Judge WL Seriti of the North Gauteng High Court interdicted the president from granting any pardon in terms of “the special dispensation for political offences” until the government abided by the TRC principles of full disclosure.
On Friday, Masutha said he had conferred with the president to “fix gaps” and that the matter of pardons would be handled across political persuasions.
“One of the specific challenges for us has been locating victims and ensuring dialogue with perpetrators. But now having both Justice and Correctional Services portfolios, it was easier to ensure that dialogue takes place as one of the critical elements to put the project on track,” he said.
Van der Merwe said pushing a political deal where politicians pardon the crimes of their respective members while leaving victims in the dark is dangerous. “It will undermine confidence in our political leadership and our justice system. Reconciliation is a process that we passionately support, but it cannot be done cheaply through self-serving political short-cuts.”
The judge said political pardons must take place after full disclosure and discussions between victims and the perpetrators.
“The difficulty now is that it is more likely that victims will come forward, but unlikely that perpetrators will do so. Given that they have not been arrested for the past 20 years, it means that risk has gone, so why must they expose themselves.”
The Sunday Independent