THE last few months have seen the deaths of two of the most notorious members of the security forces of the apartheid era: Lothar Neethling, head of the forensic unit of the South African police and an expert in poisoning; and Gideon Nieuwoudt, a security policeman renowned for the abuse of political activists and detainees. Neethling persistently lied, denying any wrongdoing and brought down Vrye Weeklblad in the process; Nieuwoudt sought some sort of redemption towards the end of his life. The deaths of both men bring to mind the unfinished business that is South Africa’s recent history.

The aim of the Truth and Reconciliation Commission (TRC) was to find a way to move the country forward within a framework of restorative justice. The admirable purpose of the exchange of amnesty for full and frank admission of the truth was to create a memorial to the past that permitted closure without amnesia. Nelson Mandela called it the RDP (Reconstruction and Development Programme) of the soul, a fitting conclusion to a negotiated settlement.

In this regard South Africa is seen as being at the cutting edge of international best practice. Amnesties in other countries have been far too kind to the perpetrators of past abuse. In September, for example, Algeria voted overwhelmingly for immunity in exchange for guns, and exoneration of its security forces for 6 000 disappearances during a decade-long, vicious civil war. This appears to be a recipe for disaster, especially since there are possibly 1 000 insurgents still at large.

It is, however, not widely remembered that of 7 116 amnesty applications to our TRC, three-quarters were rejected. Most high-level apartheid decision makers would have nothing to do with the TRC and those who did appear before it were mainly foot soldiers. There have been only a few prosecutions and most of these cases have fallen apart as we have been reminded recently by Wouter Basson.

In contrast to the leaders of Nazi Germany, National Party bigwigs consistently distanced themselves from the sheer criminality and immorality that sustained their ideology. While it is probably fortunate that South Africa rejected the Nuremberg route, the ease with which politicians and securocrats who fully subscribed to apartheid ideology have escaped judgement and justice raises justifiable fears about the standing of the rule of law. President Thabo Mbeki’s pardon of 33 anti-apartheid activists convicted of violence created similar worries. The trajectory of events over the past ten years suggests that the slate has been wiped clean in a way that was not envisaged at the dawn of South African democracy.

At the time much was made of what was said to be a miracle: avoidance of racial conflict and a bloodbath. This opinion ignored a number of crucial features of recent South African history that now benefit from a retrospective view. First, the two main protagonists in the conflict had more in common than met the eye and the politics of the last ten years have reinforced this point. Second, the struggle against apartheid was more broadly based than many, for a range of reasons, would like to admit. Third, the nature of South Africa’s society and its economy gave even the marginalised sufficient reason to have some hope for the future. The settlement of the mid-nineties was no miracle. It was a triumph of common sense based on a modicum of faith; in other words the everyday behaviour we hope to see around us as a matter of course in a civilised society.

The defeat of apartheid and the relative success of the TRC were a victory for the ordinary people of South Africa. Yet their achievement is by no means entirely secure and it remains vulnerable to the unfinished business of the last decade. The political flotsam and jetsam of this period poses continued threats to a fragile democracy, and it comes in an amazing range of shapes and sizes.

Bizarre though it may seem, remnants of the white right wing still bask in fantasies about uprisings and separateness. Their chances of success are nil, but they have the capacity to do local, temporary damage. Their counterparts are the Stalinists lurking in the ANC, the secret admirers of Robert Mugabe, whose commitment to democracy and a populist message last as long as it takes to acquire power.

Then there is the post-apartheid elite enjoying its new-found wealth and influence, but still employing the rhetoric of struggle and liberation, and indulging in the tired clichés of victimhood. And to complete the deck of cards, there are the common-or-garden opportunists cynically exploiting political correctness in pursuit of personal agendas, trampling underfoot the work of the principled, hard-working and committed of all communities.

These people constitute small minorities, but are no less dangerous for all that. The fact that they need to be recognised as a threat is testimony to the fact that something has gone wrong with post-apartheid South Africa. The problem lies with the vacuum created by a dearth of institutional and civic morality and the political will to deal with the incompetent and the corrupt.

To his eternal credit Mbeki has shown how to reverse this trend, sacking Deputy President Jacob Zuma for a lack of judgement over this very matter of probity. The day Zuma was relieved of his duties South Africa accepted the possibility of becoming a mature, modern democracy and completing the process of liberation. That is, as yet, unfinished business.

This article was first published in The Witness on 1 November 2005 and entitled ‘Dealing with unfinished business’.

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UNFINISHED business: in spite of its noble aims and cathartic outcome that’s an inevitable conclusion about the Truth and Reconciliation Commission (TRC) of the late-1990s. Its report sits as a monument to the nation’s desire to move on. Yet as the recent commemoration of what would have been Neil Aggett’s 60th birthday reminded us, many perpetrators of human rights abuses failed to apply for amnesty and have quietly disappeared into the hidden recesses of history. Two such examples are Arthur Cronwright and Steven Whitehead, who bear the main responsibility for Aggett’s suicide in detention. The National Prosecuting Authority (NPA) is reportedly looking at possible charges.

The TRC put a straightforward proposition to the perpetrators of apartheid-era human rights abuses: read into the record all you know about the events in which you were involved and amnesty may be granted. This did not, as Robert McBride was to find, absolve the act (murder in his case) but it expunged criminal records and discounted further liability. Its requirements were precise, its processes reasonable and its offer extremely generous considering that the alternative was Nuremberg style trials. However, prosecution appeared inevitable for those who did not seek, or failed to be granted, amnesty.

Very few prosecutions have been pursued in terms of the TRC deal, although the NPA set up the poorly resourced Priority Crimes Litigation Unit to deal with 800 cases handed over to it. This was just a small proportion of over 5 000 amnesty applications rejected. Instead of restorative justice there is evidence that behind the scenes the government has been quietly working on a blanket general (or alternatively a conditional) amnesty, ironically a negotiation demand of the National Party. The priority has been reconciliation at the expense of justice for victims, a move away from the moral legitimacy of the TRC towards what were argued to be the needs of nation building. The national director of public prosecutions wanted guidelines designed to avoid the possibility of jeopardising the reconciliation project.

There has been little debate about this. While there is widespread agreement that retribution cannot be part of the equation, the process of restorative justice has been stalled to a point of abandonment. And this, it would seem, is a matter of political policy. Delays have meant that secrets have been taken to the grave; for instance by Gideon Nieuwoudt, denied amnesty for the deaths of the Pebco Three, who died in 2005. That same year three police officers were given suspended sentences for the attempted poisoning of Frank Chikane. Adriaan Vlok and Johan van der Merwe entered into a plea bargain regarding the same case, but there was no further enlightenment about human rights violations in which they had been involved. Given that there was massive destruction of documents in the early 1990s, our main hope of filling in the gaps lies with testimony under oath.

The post-TRC process is seemingly a simple extension of the original; but with a fatal difference. This time around it would be in secret, amnesty through the back door granted on the basis of bureaucratic assessment against political criteria. This special pardon exercise was initiated at the tail end of the Mbeki presidency. Two thousand applications are reportedly on file; but the mechanism excludes victims, the very antithesis of the TRC’s modus operandi. This was recognised by the Constitutional Court in February 2010 when it ruled that victimless hearings were contrary to the rule of law. Some experts argue that this would also be in violation of international norms.

How legitimate is the TRC in retrospect? At the time of its hearings it played a major role in the life of the nation, a theatrical purging of a very dark past. It acknowledged victims, but did not uncover as much undocumented truth as had been hoped and expected and, arguably, handed out a disproportionate amount of forgiveness to perpetrators. Justice ultimately appears to have taken a back seat, especially since the TRC was overtaken by later events. While documentary evidence was long ago destroyed, key people have subsequently died and memories faded. The spectres of many apartheid-era psychopaths remain with us still.

And, as with the current noisy argument about human rights abuses in Kenya and the trials of Uhuru Kenyatta and William Ruto at the International Criminal Court, the victims are largely forgotten. In both cases it is the alleged perpetrators and various notions about the national interest that dominate debate and the news.

Politics and legalism now prevail in the affairs of our nation. Given the fact that the anti-apartheid struggle, although its legacy may suggest otherwise, was based on principles, morality should be at the centre of the debate about past truths and reconciliation. But now that the moderate degree of publicity surrounding Aggett’s tragic death has abated, chances are that Cronwright and Whitehead, like hundreds of others, will be left to wrestle alone with their consciences − assuming that is that they are familiar with the concept.

This article was first published in The Witness on 21 November 2013 and entitled ‘At the expense of justice’.

Further reading: Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000); Wendy Orr, From Biko to Basson: Wendy Orr’s Search for the Soul of South Africa as a Commissioner of the TRC (Johannesburg: Contra, 2000).