CASSIEM KHAN points out how the National Prosecution Authority (NPA) has perfected the practice of how not to prosecute apartheid era crimes.
SEPTEMBER 29 marks one year since the passing of Galiema Haron, the widow of martyred Imam Abdullah Haron. One of her parting wishes was to see the 1970 inquest into the killing of Imam Haron by the apartheid police reopened and overturned.
Nyameka Goniwe, who passed away on August 29 this year, and Galiema Haron join the long list of families of victims of apartheid era crimes who have had their right to the truth, to justice and accountability consistently and blatantly undermined by the democratic state for the past 26 years.
To add insult to injury, the democratic state has been funding the legal matters of the perpetrators of apartheid era crimes while the families are left to find their own funding and resources in their pursuit of justice, which include appointing lawyers, private investigators and forensic experts.
The ANC political agenda in government and as managers of the state apparatus is established at its policy conferences and, to date, there has been no resolution that clearly states that it will pursue perpetrators of apartheid era crimes.
Neither has any other former liberation movement or politically-left formation taken on the task, either collectively or separately, of supporting the families seeking justice for apartheid era crimes.
The United Nations Principles to Combat Impunity list four state obligations in response to gross violations of human rights and serious violations of international humanitarian law.
The obligation on the democratic state is that of (i) prosecuting perpetrators, (ii) granting reparations to victims, (iii) seeking the truth about the violations and (iv) guaranteeing their non-recurrence through institutional reforms and other measures.
These four principles of transitional justice interact and enhance one another by providing channels for the fulfilment of the victims’ rights: the right to justice, the right to the truth, the right to an effective remedy and the right not to endure again such violations.
The Truth and Reconciliation Commission (following the principle of seeking the truth about apartheid era human rights violations) forwarded 400 cases for further investigation and prosecution of perpetrators to the National Prosecution Authority (NPA). To date, the NPA has not prosecuted one perpetrator of apartheid era crimes. The democratic state continues to fail the victims and their families. The institutions that were created to deliver justice, such as the NPA, lacks the political will to prioritise the prosecution of apartheid era crimes.
To be precise, the political principals of the NPA, the ruling party, lacks the political will to prioritise prosecutions. The latest case that proves this lacklustre attitude of the NPA relates to the Cosas Four.
These four young comrades were killed by the security police 38 years ago and were buried without a post mortem being conducted. The NPA opposes the application of their families to exhume their bodies to conduct a post mortem on the basis that it is premature and the investigation is ongoing (for the past 21 years).
The NPA claims political interference in the past. The new national director of public prosecutions has not provided a detailed account of those that undermined the NPA as it will, no doubt, be clear that apartheid era prosecutors in its employ are involved. Vetting in transitional justice settings generally refers to ‘a formal process for the identification and removal of individuals responsible for abuses, especially from police, prison services, the army and the judiciary’.
The sunset clauses during South Africa’s negotiations did not allow for this vetting. In fact, it not only made sure that the individuals remained in the state system but that they will continue to get all their benefits.
By guaranteeing the jobs and benefits of those who created, maintained and advanced the crime that was apartheid, the democratic state wants us to believe that all these individuals have remarkably transformed to now act honourably and in the best interests of the majority that they brutalised for decades.
Corruption at its very core is acting against the interest of the population it is meant to serve. If anything, corruption is another form of apartheid, where the greed of an even smaller group is prioritised over the needs of the majority.
The NPA has perfected the practice of how not to prosecute apartheid era crimes, through delaying, waiting for perpetrators to die, citing the age of perpetrators and citing that corruption cases will be prioritised.
If the NPA could not prosecute one apartheid era criminal, can it be expected to prosecute one corrupt politician or official?
Cassiem Khan is the director of the Imam Haron Foundation.
This article was first published in the September 2020 print edition of Muslim Views.