It might seem an improbable event - the former chairperson of the Truth and Reconciliation Commission, Archbishop Desmond Tutu, making a last-ditch appeal to President Thabo Mbeki to place a moratorium on post-TRC prosecutions of apartheid perpetrators. Yet this is what played out behind the scenes last week, just days before the long arm of the law finally fingered members of the high chain of apartheid command, who have largely escaped the truth commission process.
Notwithstanding the appeals, Adriaan Vlok, the former police minister, and Johann van der Merwe, his police chief, this week were charged, along with three other foot soldiers, by the National Prosecuting Authority (NPA) for their alleged role in the 1989 poisoning of Reverend Frank Chikane, now the director-general in Mbeki's office.
Tutu was not rushing to Vlok's defence, however. A number of key sources told The Sunday Independent his failed intervention on behalf of apartheid victims was aimed at staving off a lengthy constitutional challenge to the NPA's policy guidelines for prosecuting those who either failed or shunned the TRC's amnesty process. Tutu's appeals highlight just one of a range of issues relating to the "unfinished business" of the TRC, still bedevilling closure and justice for millions 11 years after the commission opened its doors.
At the heart of the constitutional challenge and Tutu's concern is that the NPA policy appears to provide perpetrators with a potential back-door amnesty. Human rights groups say the NPA policy lacks transparency and could be paving the way for indemnity plea bargains, expunging even victims' civil claims while threatening South Africa's internationally renowned reconciliation legacy.
The TRC amnesty was designed as a neat stick-and-carrot approach with generous reparations to victims mooted in return. But the government's reparations payouts have fallen far short of expectations raised by the TRC process.
On Thursday, the challenge to what is seen as a "second bite at the amnesty cherry" was brought in the Pretoria high court by the families of the murdered Cradock Four activists and of Nokuthula Simelane, whose story of alleged abduction at the hands of security policemen was portrayed in last year's moving documentary, Betrayal.
The guidelines, signed into law in 2005, give the NPA not only the extraordinary powers of the TRC's amnesty panel, but additional discretion to decide, for instance, whether perpetrators have shown enough remorse. Vlok's symbolic washing of Chikane's feet last year might be a case in point.
In a founding affidavit, the victims - including Nyameka Goniwe, the wife of Matthew Goniwe, one of the murdered Cradock Four - claim the policy is unconstitutional in that it violates their right to dignity by protecting "perpetrators of gross human rights at the expense of victims" and "demeans society as a whole by betraying the constitutional compact" that set up the TRC.
They brought the case with the support of four prominent human rights groups - the Legal Resources Centre (LRC), the Centre for Violence and Reconciliation, the Khulumani Support Group and the International Centre for Transitional Justice (ICTJ) in New York, set up by Alex Boraine, the TRC deputy chairperson.
The challenge is not expected to halt Vlok and Van der Merwe's prosecution, however. The LRC's Richard Moultrie hinted that if the challenge is successful it might affect an outcome that could potentially provide indemnity. "To the extent to which the policy allows the NPA to prosecute or not, it could mean that they can give a person an effective indemnity," said Moultrie. "We don't think decisions should be made not to prosecute someone. We are saying we are worried there is evidence that this could happen."
Paul van Zyl, the executive vice-president of the ICTJ, insists the policy is out of step with international law and standards. He explained that international law against crimes against humanity, such as apartheid, had been strengthened in recent years and the United Nations no longer endorsed amnesty for gross violations of human rights. "The first amnesty was debatable under international law; the second amnesty clearly constitutes a violation," Van Zyl said.
Jonathan Klaaren, a Wits law professor, said the controversy also struck at the constitution and an important 1996 judgment against an Azapo bid to have the TRC declared unconstitutional for its amnesty provisions. "The Azapo judgment gives some guidelines but did not clarify all the issues and new questions are coming up about the rights of victims and the public, open and democratic society as well as the impact of the process, where it relates to a culture of accountability or impunity, particularly in a society with issues around crime," Klaaren said.
But Professor Willie Esterhuyse, the Stellenbosch academic and a proponent of the NPA policy, argues that too many apartheid politicians are still washing their hands of the atrocities committed under their rule. In response to the challenge, Panyaza Lesufi, the NPA spokesperson, said: "We are unapologetically biased towards the victims, and what we are doing is on behalf of victims of injustices. "We will be the first ones to respond to concerns raised by victims as long as those concerns are reasonable."
Another issue is the reparations battle taking place in a New York court between South African victims and multi-national companies and banks. The Khulumani Support Group is behind one of the claims brought in 2002 against the companies, whom it alleges aided and abetted apartheid-era atrocities.
Marjorie Jobson, the director of Khulumani, said they were "desperately awaiting" a judgment to be able to decide on further legal steps against the companies. She said the TRC's politically charged legacy left victims powerless. "The biggest concern for us is the continuous expansion of the legal regime for perpetrators while victims get nowhere. This creates an imbalance," Jobson said. Khulumani represents 55 000 apartheid victims, only 10 percent of whom were heard and compensated by the TRC.