Killing for a moral cause

2011-04-15 00:00

WE honour Victoria and Griffiths Mxenge today. Victoria was a loving mother and a grieving widow at the time she was ruthlessly assassinated. Griffiths, a dedicated husband and father, had been barbarically murdered a little earlier. Both these wonderful people were, without doubt, formidable lawyers, fierce and brave warriors in the war against apartheid, good friends and, perhaps most importantly, caring human beings.

I have chosen to speak on the role of the private citizen and non-governmental organisations in the furthering of the constitutional project.

Griffiths and Victoria made an invaluable contribution to achieving our constitutional project, a process in which literally hundreds of thousands of people have been involved over many years. We know that Griffiths was responsible for important work within the Release Mandela Committee, a non-governmental organisation. Similarly, Victoria was involved in the liberation of women, having formed the Natal Organisation of Women.

Griffiths, had he lived, would have been a very young 59 when we achieved our democracy in 1994. Victoria would have been a ravishing 52-year-old friend. What would they have done in the new South Africa? They would both probably have become judges, at least one of them my colleague in the Constitutional Court. Our loss has been great indeed.

And now to amnesty. The murderers of Victoria and Griffiths Mxenge were all granted amnesty. It is therefore fitting to make some remarks about amnesty on this occasion. We are now more than 15 years into our democracy. It is a crucial time, when there is some discussion around the consequences of the granting of amnesty. An issue that arose in a case that came before the Constitutional Court recently (involving Robert McBride) was whether people granted amnesty for murder could be called murderers without attracting adverse legal consequences. In other words, the question raised was this: would a person or entity be liable to pay defamation damages for calling a person who had been granted amnesty for committing murder, a murderer? That question has now been authoritatively decided by the court in a majority judgment which concludes that there is no liability for defamation in these circumstances.

The question that I would like to raise about amnesty, although related to the question that the Constitutional Court had to answer, is certainly not the same. Moreover, the matter I discuss is a moral issue, not a constitutional or legal one. The concern ventilated here was not implicated in the decision that the Constitutional Court had to make.

The subtext of modern amnesty discourse seems to suggest that the effect of the reconciliation provision in the Constitution and of the Truth and Reconciliation Act[2][2] is that there has been a certain equalisation between the forces of oppression and the forces of resistance. The thesis that emerges is apparently that both sides in the struggle, the oppressor and the valiant participants in the struggle, were guilty of unlawful conduct during that struggle. It was therefore appropriate, so the thinking goes, to ensure that the perpetrators of unlawful conduct on both sides should be granted amnesty as a matter of fairness.

I fundamentally disagree.

It is true that the question that arose during the negotiating process was the proper approach to be taken in relation mainly to people who participated in the liberation struggle who had been convicted of crime for their participation. It was the oppressor who raised a concern about what was to happen to people in their ranks who had been guilty of impropriety for unlawful conduct. It was essential to the negotiation process that some resolution be found to this impasse and the resolution was that the people on both sides should be granted amnesty. I emphasise that, even though the Constitution and the Truth and Reconciliation Act contemplated reconciliation as the end result of the amnesty process, seekers for amnesty were not required to commit themselves to reconciliation, the elimination of discrimination at every level, our Constitution, or the achievement of the constitutional project.

The essential difference between the forces of the enemy and the forces of resistance was that we had a just moral cause, and that the course of resistance that the struggle took was dictated by the circumstances — that their banning left them with no choice. The moral position of the forces of opposition was hugely different and I would venture to suggest that no one today can deny any of this.

There must, therefore, equally be a fundamental distinction between the unlawful conduct of those who were heroes in a just moral cause and the villains who dared to commit illegality in support of the unacceptable apartheid sin.

I make this distinction not to vilify the perpetrators of these affronts to humanity, although their vilification is an obvious consequence of what I say. I mean to emphasise that it is dangerous to forget this difference between the two forces and we must never equate them. For if we do, we deny the full consequences of the evil of apartheid, we compromise the need for reconstruction and we hold back the constitutional project.

The private citizen and the non-governmental organisations, in forging ahead to create the society envisaged by our Constitution, must remember that the majority of our people were for centuries the victims of the most shameful, painful and destructive evil imaginable. There is another reason why we must always be aware of the conduct of the apartheid perpetrators and its consequences. It is this: we do not ever want to repeat what they did because if we do, the constitutional project will be denied and the selfless conduct of Griffiths and Victoria will count for very little.

One final point on amnesty. While it may be understandable that amnesty was granted to people without any reference to their commitment to the achievement of the society contemplated in our Constitution, I would suggest that this should not be so in the future, even if the relevant legislation needs to be amended to achieve this result. In my view, the work of the private citizen and non-governmental organisations in achieving the constitutional project can only be enhanced if future amnesty is granted only to those people who are committed to the values of this Constitution. This, I think, is a requirement of our democracy today.

We must all put our shoulders to the wheel. I know that many of us come from poor families and believe that we are entitled to use the fruits of our hard work and achievements for our benefit. Griffiths and Victoria Mxenge too came from very poor circumstances and they qualified as lawyers under great hardship. Yet they felt no sense of entitlement. None of us have any reason to do so unless the constitutional project has been achieved. We have come some way along the road but there is a long, hard climb ahead. Let us continue the process of achieving the constitutional project in memory of Victoria and Griffiths Mxenge, and the many thousands of other comrades who perished in the struggle with dedication, foresight, courage, strength, creativity, flexibility and purpose.

• Z. M. Yacoob, Justice of the Constitutional Court of South Africa delivered the ninth Victoria and Griffiths Mxenge Memorial Lecture at the University of KwaZulu-Natal, Durban on Wednesday.

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