Monday 24 June 2019

Untruths at the Truth Commission

In 2013, based on my coverage of the Truth and Reconciliation Commission (TRC) in South Africa in the mid-1990s, and my training of commissioners of the Truth and Reconciliation Commission (TRC) in the Solomon Islands in 2010, I was asked to advise the Côte d'Ivoire's Commission Dialogue, Vérité et Reconciliation (CDVR). I am pictured here standing behind CDVR president, Maitre Mari-France Goffri, who is seated at right next to Marjorie Jobson of the Khulumani Support Group for victims of apartheid.

A chapter in my new book , scheduled for release next year, bears the title Untruths at the Truth Commission. It is unfortunate, given the TRC researchers' brilliant in-depth, seven-volume, 4,500-page exposition of the complex web that was apartheid, that there is a revisionist notion common among many young people that the TRC was a "sell-out" process - though this is derived from a legitimate concern over the amnesty-for-truth formula that the TRC Amnesty Committee (a separate but linked organ) applied to perpetrators of gross human rights violations. This concern was and remains most forcefully expressed by the families of prominent victims such as Bantu Steven Biko, Matthew Goniwe and Fabian and Florence Ribiero - and I totally understand their reluctance to let apartheid perpetrators off the hook for the price of merely admitting their crimes. In fact, the Amnesty Committee recommended that there be at least 300 prosecutions of perpetrators who had either not applied for amnesty for known crimes against humanity, war crimes and other gross violations, or whose testimony before the TRC was found to be untruthful and so they had forfeited the right to amnesty. 
Unfortunately, political interference by the ANC government under President Thabo Mbeki in the subsequent prosecutions process meant that only one of those cases was ever facing prosecution - that against former Law & Order Minister Adriaan Vlok, former Security Branch chief General Johan van der Merwe, and three Security Branch assassins in 2007 for the attempted poisoning of Reverend Frank Chikane, and that was settled without trial in a plea-bargain that gave the men 10 years' suspended for five. Under what in my book Drinking with Ghosts (2014) I call Southern Africa's "Pact of Forgetting," a secret deal between Mbeki's Cabinet and the apartheid generals in about 2004, it was illegally decided that no prosecutions would result from apartheid; this deal was apparently struck because leading ANC figures as well as apartheid figures would have to face justice for grotesque crimes. That over a quarter century of democracy, no-one has ever been tried for the UN-designated crime against humanity that was apartheid, that not one military officer has been successfully prosecuted for the militarist state's murder, torture, disappearances, and other depredations, and that *all* prosecutions were illegally halted by Cabinet interference in the National Prosecuting Authority's constitutional duty to investigate the 300 cases presented to it by the Amnesty Committee is a crime in itself. 
A total of 21,748 victims were identified by the TRC based on those who had given evidence before it, among whom are some 1,500 disappeared - but among these were only two SWAPO members - the lawyer Anton Lubowski assassinated by the CCB in 1989 and some poor soul tortured in the Northern Transvaal into confessing he was a SWAPO member. This is a clear impossibility, given the 23-year war the SADF waged against SWAPO, with a death toll put at something like 2,500 South Africans, 12,300 Namibians, and perhaps 5,000 Cubans dead (not to mention many others). The TRC rather mawkishly admitted that most apartheid crimes were committed *outside* the borders of South Africa in its rather hot "Cold War" with the Soviet-aligned Frontline States, while the trial of SADF biochem war-chief Brigadier Wouter Basson signally failed to prosecute him for crimes that the trial judge shadily found fell outside his court's jurisdiction (ie: outside South Africa). This is nonsense as such transnational war crimes fall directly under international common law and are readily prosecutable, though not under the International Criminal Court as the Rome Statute only reaches back to 2002. The dropping of allegedly "extra-jurisdictional" mass-murder charges against Basson was overturned by the Constitutional Court in 2005, opening the way for him to be tried on those and several other charges again - though the NPA was illegally ordered by Cabinet not to dare lift a finger against him. 
Fortunately, the Pact of Forgetting is now unraveling, with a growing public chorus in the wake of the successful inquest into activist Ahmed Timol's death that determined it was murder at the hands of the police, that all apartheid crimes be revisited. There were many untruths told at the Truth Commission - especially relating to transnational war crimes - but so much new hard proof of these crimes has since emerged that it should prove irresistible to honest and implacable prosecutors. With so many perpetrators having been allowed to die peacefully in their beds over the past two decades, it is past time that the NPA revisits the 300-odd apartheid gross human rights violations (plus the six charges green-lighted against Basson by the Constitutional Court) with a view to prosecution.