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Amnesty and Justice: Remaking Our Nation

10 November 2012, 14:31  - Vusi Kweyama
At the “alter of sacrifice,” justice was surrendered in the interest of peace, stability, and illusionary reconciliation.

The day we stop questioning will be the day we live in fear of the unknown; this is good if you don’t want to consider, address, and answer new questions about life. New inventions or technologies are a byproduct of questioning the relevancy of existing technologies and seeking new ways of doing things to improve current conditions.

My question today: To what extent has amnesty eroded the fabric of our criminal justice system?

Amnesty is defined as “a pardon extended by a government to a group or class of persons, usually for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but have not yet been convicted.”

Out of a negotiated settlement, the South African Truth and Reconciliation Commission (TRC) was born from a major compromise for parties striving to make a smooth transition from apartheid to democracy. Many perpetrators from both parties — the liberation movement as well as the apartheid regime — had vested interests in how their inhuman acts would be dealt with in the post-apartheid dispensation.

At the helm of the commission was Archbishop Desmond Tutu, a man of the cloth, who was naturally inclined to forgive wrongs of the past, following well-regarded biblical imperatives. He was given the responsibility of creating a national narrative about reconciliation and forgiveness.

While he delivered on his mandate, he later questioned the extent of justice allegedly performed during much of the TRC process by recently proposing a guilty tax (taxation for apartheid beneficiaries for reparation purposes). He also raised concerns about how the apartheid government did not use the TRC platform to provide formal apologies for gross violations of human rights.

Obviously, this lack of pronouncing apology by the apartheid regime was interpreted by many as a clear lack of remorse, which essentially suggests that (a) the regime did not see anything wrong with their racial segregationist policies or (b) the segregationists did not apologise because apology implies an obvious need for righting past wrongs.

This series of events might have had a negative impact on the public’s conception of what is just, particularly regarding the notion of amnesty.

Here are the documented facts, compliments of the University of Witwatersrand.

South Africa’s TRC is the only truth commission to have been given powers of amnesty. The 1993 Interim Constitution made specific provisions for an amnesty process but did not prescribe details. Indeed, the wording of the Constitution’s preamble was deliberately vague, in effect, leaving it up to a subsequent political process to work out the details.

Although the undertaking to indemnify perpetrators was a bitter pill to swallow, especially for those within the antiapartheid movement, most commentators agree that momentum towards transition would have been fundamentally undermined without it.

Although the motivation for a general amnesty had come primarily from representatives of the apartheid state and its security forces, there were powerful elements within the liberation movement who recognised and supported this position. Former Umkhonto we Sizwe chief and post-apartheid’s first Minister of Defence, the late Joe Modise, for example, had reportedly assured apartheid defence-force negotiators that this is what would be delivered.

The number of amnesty applications that were submitted stunned the TRC because Parliament had envisaged that an eighteen-month-to-two-year period would be adequate to process the anticipated caseload. By the end of April 1996, only 197 applications had been received, at which point five committee members and four staff members were dealing with the handling and processing of applications.

By the end of 1997, however, the committee had received over 7,000 applications relating to more than 14,000 different incidents. The committee was expanded to 19 participating members and 94 staff members, allowing them to hear as many as 6 matters at a time. A total of 7,116 applications were received before the receipt of applications cutoff date.

Many applicants were granted amnesty, however, some perpetrators are currently appealing to the government for amnesty, even a presidential pardon.

(Source credit: University of the Witwatersrand, Traces of Truth; Documents relating to the South Africa Truth and Reconciliation Commission.)

Against this backdrop, I’m tempted to question whether correlations exist between: the past violent nature of South African society; government’s manipulation of laws to suit its apolitical ends and current violent protests; lack of respect for the rule of law; and South Africa’s current crime rate.

Perhaps, the way in which different societal actors conduct themselves is a byproduct of the amnesty practice, among other things. For example:

-- Criminal offenders, inside their narrow realms of life, often try to justify their stealing from “the former colonial master” by saying that they are taking back what was stolen from them.

-- Today’s miners ignore legal channels of striking because they feel that justice is not performed at their work place.

-- Current leaders have broken apartheid laws for most of their lives thereby becoming political prisoners while seeming to be heroes at defying unjust laws (in their view & others). Whether just or not, apartheid laws governed the land of South Africa, as viewed through the prism of the South Africa Criminal Justice System. For example, today’s seated president’s respect for law remains under scrutiny while, immediately before he assumed presidential duties, he was in and out court on a variety of charges not limited to political ones.

-- Opposition party leader Helen Zille — still viewed by many as the embodiment of that which facilitated apartheid — finds it easier to govern through the judiciary, which brings to question the legitimacy and role of South Africa’s judiciary.

My perceived correlation might not be true on all points. However, we as a nation might want to do away with the current practice of politicizing the plight of struggling people just to score political points. Instead, we should come to terms with our social reality and explore options that could allow us to again restore dignity to our justice system by clearly demonstrating that the rule of law is designed not only to protect the interests of “the chosen few”, but uphold those public institutions that have been developed to safeguard human rights regardless of one’s social class.

Otherwise, we’ll eventually see Vavi’s forthcoming negative time-bomb prophecy play out.

Let us never forget that our nation didn’t arrived to where it is today by some accident of our natural past; we are here as a direct consequence of making both wise and bad decisions. We should not be afraid to revisit our past occasionally, not only to assign appropriate blame, but to learn also from our past, which can often be the very best teacher.

The remaking of our nation is a dream within reach. We South Africans have come a long way; we have proven to the world that we have the capacity and insight to reform our society. The choice remains ours: whether we want our children and their children to live in a country where skin colour determines one’s ultimate fate.

It is our responsibility to create a national environment in which next-generation South Africans would be able to truly experience the beauty of diversity thriving in an atmosphere where security walls have been broken down because there would no longer be a need for citizens to take from one another what isn’t theirs. I have tasted what it’s like to be both white and black, and it’s delicious.

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