Why Zuma would be mad to pardon De Kock

2010-01-18 00:00

IF, as speculated in the media, President Jacob Zuma is considering pardoning former police assassin Eugene de Kock as a quid pro quo for his reported plan to pardon his former financial adviser and benefactor, Schabir Shaik, one can only hope that he decides not to do so.

A major reason for opposing even the notion of linking the two issues is that there is no moral or perhaps immoral equivalence between the convictions of the two men.

De Kock was convicted for his role in multiple killings of anti-apartheid activists by the secret police assassination squad that he commanded at Vlak­plaas, near Pretoria, whereas Shaik was found guilty of fraud and corruption arising from what the presiding judge in trial describe as his “symbiotic relationship” with Zuma.

The lack of equivalence between their crimes is manifest in the sentences imposed on them: De Kock was sentenced to imprisonment for 212 years, whereas Shaik was sentenced to a relatively short 15 years, of which he served a mere two years, most of which was spent in hospital.

Zuma, whose rise to power is inextricably linked to his long friendship with Shaik, will immerse himself in further controversy if his anticipated decision to accede to Shaik’s application for a pardon is linked to a decision to pardon De Kock as well.

For that reason, granting a pardon to Shaik will of necessity be intensely controversial. Linking it to a pardon for De Kock will almost certainly make it doubly controversial and less, rather than more, acceptable to the population as a whole.

Zuma’s spokesperson, Vincent Magwenya, has confirmed that Zuma met De Kock and had talks with him in April last year at about the time that Shaik was released from prison on medical parole. Whether the convergence of the two events is significant or coincidental is debatable.

So, too, are official assurances that Zuma will assess all applications for pardon in their own right. They have the ring of a stock response to all inquiries about applications for pardon from convicted felons, whether in prison or trying to reconstruct their lives after being released from prison.

Zuma’s reported cogitation on whether to link a pardon for Shaik with one for De Kock brings to mind how former president F. W. de Klerk responded to African National Congress pressure on him to release ANC prisoners convicted of murderous attacks on civilians with a counterdemand for the same right to retrospective indemnity to be extended to the perpetrators of vicious attacks on innocent people by fanatical rightists.

As a result, to quote David Steward, CEO of the F. W. de Klerk Foundation, “a handful” of anti-ANC prisoners were released with about 2 000 ANC insurgents imprisoned for gross abuse of human rights.

In retrospect it is clear that the release of two prisoners in particular symbolised the controversy initiated by the Further Indemnity Act of 1992.

• Robert McBride, a commander in the ANC’s underground army, Umkhonto we Sizwe, who had been sentenced to death for his role in a car-bomb attack in 1986 on Magoo’s Bar in Durban, in which three women were killed and more than a score of people injured.

• Barend Strydom, a young Afrikaner and self- styled “White Wolf”, who went on a shooting spree in Pretoria in November 1988, killing seven black civilians and wounding 15 more, for which he too had been sentenced to death.

As De Klerk recalls in his autobiography The Last Trek: A New Beginning, his success in extracting a quid pro quo from the ANC gave him no satisfaction. “Never before in my political career did I have such little appetite for the adoption of legislation which allowed people who had committed heinous murders to get off scot-free.”

It might be noted that the Further Indemnity Act, adopted on the insistence of the ANC, was in contravention of the Norgaard principles, which stipulate that the granting of indemnity from prosecution is dependent on fulfilment of two conditions: the use of force had to be politically motivated; and had to be proportional to the objective that prompted it, rather than gratuitous and excessive.

Steward observes pertinently that the ANC originally agreed to the adoption of the Norgaard principles and that its pointsman during the negotiations was Zuma.

At that stage he had, having joined the ANC as a teenager, risen through the ranks to serve as its chief of intelligence in the years preceding the opening of settlement negotiations between the ANC and the De Klerk administration.

The question of indemnity and amnesty in post- apartheid South Africa is shot through with controversy, in large measure because of inconsistent and conflicting decisions by the Truth and Reconciliation Commission (TRC), which was empowered to grant amnesty to those who violated human rights subject to three central provisos.

As defined in the TRC enabling act, the provisos are that the actions of those who violated human rights were politically motivated, that the applicants make full disclosure of their actions, and that their actions did not involve disproportionate or gratuitous violence.

The problem, however, is that the decision of the TRC committees that adjudicated on the applications for amnesty were not consistent.

Thus the young black men who attacked and killed Amy Biehl in Gugulethu, near Cape Town, in August 1993 merely because she was white, were nevertheless granted amnesty by the TRC and released from prison. For the record, Biehl was an American anti-apartheid activist and a student at the University of the Western Cape.

Another perplexing decision concerns the attack by members of the Azanian People’s Liberation Army on a church congregation in Cape Town in July 1993.

The young black men who attacked and killed 11 worshippers and wounded another 58 at St James Church were similarly convicted of murder and grievous bodily assault, only to be granted amnesty by the TRC later.

It is hard to see how the murder of innocent worshippers, not all of whom were white, cannot be regarded as gratuitous and disproportionate in the extreme.

Yet the TRC refused to grant amnesty to Clive Derby-Lewis and Janusz Walus, the assassins of Chris Hani, who, unlike the congregants at St James Church, was a high-profile leader of the South African Communist Party. The assassination was thus palpably politically motivated.

One of the reasons the TRC rejected the application for amnesty was its belief that they had failed to make full disclosure on the identity of their purported highly placed co-conspirators. The implication is that the TRC apparently concurred with the SACP contention that the machinations that led to the murder of Hani reached deep into the security establishment of the old regime.

Yet, after nearly 18 years since the assassination of Hani, the SACP has been unable to provide conclusive evidence of the complicity of high-ranking securocrats in the killing. In the absence of that, the 1993 finding of the presiding judge in the trial of Derby-Lewis and Walusśstands. For the record, Judge Christoffel Eloff found that there was no compelling evidence that Derby-Lewis and Walus were foot soldiers acting on behalf of powerful but anonymous principals in the security forces.

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