Haunted by the apartheid demons we barely confronted

Is South Africa's approach to reconciliation the root of its culture of impunity?

08 October 2017 - 00:42 By ranjeni munusamy

A rather grisly picture is located near the end of the exhibition on the trial of major war criminals of the Nazi regime at the Nuremberg Trials Memorial.
It is not prominently displayed and could easily be missed among the dozens of historic images, artefacts and documents on the International Military Tribunal that took place from November 1945 to October 1946.
It is a framed collage of 11 images of dead Nazi leaders lying on stretchers, some with the ropes from their executions still around their necks.
Twelve of the 24 top officials of the Third Reich who were tried for war crimes and crimes against humanity were sentenced to death. One of them, Hermann Göring, Hitler's acknowledged successor, committed suicide on the eve of his execution by taking cyanide.
A visit to the museum, which includes Courtroom 600 where the main tribunal and subsequent trials of war criminals took place, is a cathartic journey through one of the most appalling periods in history.The trials unearthed the full extent of the atrocities and barbarism of the Nazi regime.
Despite this mass savagery, there is a sense of closure in Germany, helped in part by the fact that justice was meted out to the lead perpetrators.
The trials were initially accused of representing "victors' justice" as they were initiated and presided over by the allied nations, the US, the UK, France and the Soviet Union.
After reunification, however, German society embraced and made peace with its history.
The trial against the main war criminals led to the global community adopting a code against impunity for war crimes, and Nuremberg became the birthplace of international criminal law.
In 2014, the International Nuremberg Principles Academy was established to promote international criminal law and human rights.
Klaus Rackwitz, the director of the academy, said they provided capacity-building for practitioners of international criminal law and ran training programmes for military and civilian prosecutors from around the world.
Rackwitz said he had been in dialogue with South African civil society organisations and academic institutions concerned about the government's plan to withdraw from the International Criminal Court at The Hague.
He said he did not believe the South African government was opposed to the principles of international law or that it wanted to allow impunity.
"My view is that the situation is more complicated and certainly warrants further discussion."
While there might be unease in some quarters in South Africa about the ICC withdrawal, it is the general lack of accountability and paralysis of the NPA that is of increasing concern.This is particularly evident in the NPA's failure to act on the avalanche of evidence in the public domain related to state capture and the looting of state funds.
But the roots lie perhaps in how democratic South Africa dealt with the crimes of the apartheid regime and whether this created the culture of impunity that is now entrenched.
South Africa opted for the Truth and Reconciliation Commission rather than Nuremberg-type prosecutions in an effort to establish nationhood and a reconciled society.
Archbishop Emeritus Desmond Tutu, who chaired the TRC, described it as "an incubation chamber for national healing, reconciliation and forgiveness".
While that might have been the perspective in the early years, there is emerging sentiment that the Mandela formula for reconciliation and compromise allowed apartheid to go unpunished and cemented the disparities in society for future generations.
The top brass of the apartheid establishment certainly got off scot-free.
Dumisa Ntsebeza SC, a TRC commissioner and head of its investigations unit, said South Africa could not realistically have opted for a Nuremberg-type process because, unlike the Nazi regime, the apartheid order was not completely vanquished when the ANC took power.
"On April 28 1994, the chief of the national defence force was still an old-order person. The security forces and judiciary were all in the hands of the old order. The Nuremberg trials were set up by the victors. Here there was no military conquest of the apartheid order. There was no victor," said Ntsebeza."We as a free nation would not have been in the position to ask the same security forces bring themselves to trial. Therefore, for better or for worse, post-apartheid South Africa fashioned the Promotion of National Unity and Reconciliation Act ... the amnesty process allowed perpetrators of gross violations of human rights to earn their freedom if they made full disclosure," he said.
But firm requirements were in place for amnesty to be granted. Those who did not meet the requirements would have to be tried criminally.
This is where the failure occurred, said Ntsebeza.
There were about 300 apartheid cases that could have been prosecuted but were not pursued. When the TRC wrapped up, Ntsebeza's investigative unit handed over to the state 43 files of cases they could not finish. These were not acted on.
He said South Africa now knows through the affidavits of Vusi Pikoli and Anton Ackerman in the Nokuthula Simelane case that there was political interference that stopped the NPA from pursuing the cases.
"The question is why. Why were politicians of a revolutionary organisation who were now in government determined that those prosecutions not take place? Could it be because of a compromised liberation movement?" Ntsebeza asked.
He believes the betrayal of apartheid victims goes deeper as the government opposed the claim for reparations lodged in the US by the Khulumani Support Group.
"It is about political will. The Germans continue to pursue the Nazis even now. But here there is no political will to deal with criminality and injustice," said Ntsebeza.
"It explains the current malaise. Nobody seems to be accountable to anybody. How do you have a minister instruct the police to 'crush their balls and let me deal with the legal consequences' and nothing happens?..

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