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  • Written by  Business Day
  • Published in In the News
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They did not want to know of evils

THE decision by the National Prosecuting Authority to prosecute former police minister Adriaan Vlok for apartheid-era crimes has given rise to speculation about whether other former leaders, such as FW de Klerk, might also be in the firing line.
It is worth remembering, however, that exhaustive cross-examination and investigation by the Truth and Reconciliation Commission (TRC) failed to produce any hard evidence that apartheid leaders actually gave instructions for gross human rights abuses ? from detention without trial to torture and murder ? that occurred.
THE decision by the National Prosecuting Authority to prosecute former police minister Adriaan Vlok for apartheid-era crimes has given rise to speculation about whether other former leaders, such as FW de Klerk, might also be in the firing line.

It is worth remembering, however, that exhaustive cross-examination and investigation by the Truth and Reconciliation Commission (TRC) failed to produce any hard evidence that apartheid leaders actually gave instructions for gross human rights abuses ? from detention without trial to torture and murder ? that occurred.

Remember the infamous directive in the Matthew Goniwe case that instructed that he be permanently removed from society? During at least two inquests and many hearings at the TRC there was considerable argument about the exact meaning of the phrase. It was argued, for instance, that it meant to neutralise Goniwe and the Cradock activists politically. Others, of course, believed that it was an instruction to murder.

The testimony of former Vlakplaas commander Eugene de Kock to the TRC?s amnesty committee is a chilling reminder of how it worked.

He gave extensive evidence on how the police and the security community had a dictionary all of their own, a verbal one, which only they understood. ?After a meeting, a colonel, a general or a brigadier would approach you while you were having refreshments or a meal and he would say you must hit back at these people, get them out of the way,? said De Kock.

?It doesn?t mean that you must move this person from house to house or give them a couple of slaps, it meant that you should kill this person and they would use a certain terminology and said that the person had to be removed and it didn?t mean that you had to take the person out or entertain them, it meant that you had to kill them.?

The reality is that senior officers and politicians dealt with their subordinates through codified messages. The police minister would say nothing when an activist ended up dead and at the next medals parade the officer would receive a medal. No instruction was given but the message was clear.

Former deputy law and order minister Leon Wessels was perhaps the most candid of the apartheid-era politicians in his submission to the TRC.

?I further do not believe that the political defence of ?I did not know? is available to me, because in many respects I believe I did not want to know. In my own way I had my suspicions of things that had caused discomfort in official circles, but because I did not have the facts to substantiate my suspicions or I had lacked the courage to shout from the rooftops, I have to confess that I only whispered in the corridors.

?That, I believe, is the accusation that people may level at many of us. That ?us? is not deleted. We simply did not, and I did not, confront the reports of injustices head on.?

Wessels also spoke of the speeches which apartheid politicians made in order to rouse the electorate.

Phrases such as ?total onslaught? were used and as a consequence security officials came to the conclusion that anything was justified in what he described as a ?dirty war? on both sides.

Human rights lawyer Ilan Lax, who served on both the TRC?s amnesty committee and at some of its special events hearings, says one of the ?fundamental differences between the TRC context and the criminal justice context was the burden of proof used in coming to findings/conclusions of fact ? that is, the balance of probability test versus the beyond a reasonable doubt test?.

?The TRC was a voluntary process and the criminal justice context is clearly not ? although in the case of someone like Vlok who has already publicly expressed remorse there is an element of acknowledgement. In the former context the primary object was to determine accountability, context, motives, perspectives and to provide a platform for acknowledgement of the victims and by those ?perpetrators? (persons seeking amnesty).

?The criminal justice context is necessarily much narrower in focus where the state seeks to determine personal guilt in relation to specific crimes (usually restrictively defined) where context is far less the nub of the enquiry.?

Lax stresses that the social compact that gave life to the TRC and its amnesty process entailed the implicit commitment that people who either failed to apply for amnesty or who were refused amnesty would be subject to criminal justice within a reasonable time.

?This would obviously depend on availability of evidence, bearing in mind the covert nature of some of the crimes committed in the course of the ?conflicts of the past?, he says.

?The evidentiary burden on the state is greatly exacerbated by undue delays in prosecution due to some or all of the following: evidence has been destroyed, lost or disappears; people die; memories are generally weakened over time; and some people simply want to move on with there lives and have lost the will to revisit the traumas of the past.

?As a consequence, the long delay in bringing such prosecutions increases the likelihood that their failure will promote impunity in relation to the activities of the past,? says Lax.

?Our challenge as a nation is the need to acknowledge that in the words of, if I recall correctly, Leon Wessels: ?It?s not that we did not know what was happening, but rather that we did not want to know what was happening.?"

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