New policy on apartheid crimes
18 January 2006
The government's policy on prosecutions of apartheid-era human rights offenders has been unveiled in Parliament, giving wide-ranging discretion to South Africa's Director of Public Prosecutions on whether or not to prosecute those who did not apply for - or did not receive - amnesty from the Truth and Reconciliation Commission.
A legal adviser to the National Director of Public Prosecutions outlined the amended policy for dealing with the prosecution of perpetrators of gross human rights violations to Parliament's portfolio committee on justice and developmenton in Cape Town on Tuesday.
Gerhard Nel said that the amended policy followed a statement by President Thabo Mbeki in Parliament on 15 April 2003, when the President made it clear that there would be no general amnesty for perpetrators of violations, thousands of which were uncovered by the Truth and Reconciliation Commission (TRC).
Any further amnesty, Mbeki told Parliament in 2003, would not
only be unconstitutional but would fly in the face of the TRC process and detract from the principle of accountability and the creation of a new ethos within South African society.
He said then that the National Prosecuting Authority (NPA), together with South Africa's intelligence agencies, would work with those prepared to divulge information on human rights violations, adding that victims of such violations would play a role in determining an appropriate legal "course of action" for those responsible.
As a result, the NPA had amended its prosecutorial policy regarding the possible prosecution of apartheid-era perpetrators of gross human rights violations, which the Truth Commission defined as "murder, torture, abduction or severe ill treatment."
The process of drawing up policy for such prosecutions, started in 2003, took so long because of the process of consultation involved, Nel told journalists, with the NPA consulting other
law enforcement agencies, other departments within the NPA, as well as taking the interests of victims into account.
The amended policy states that people who had committed crimes which emanated from the conflicts of the past could enter into "agreements" with the prosecuting authority in accordance with existing legislation, such as taking the option of turning state witness.
Ultimately, the decision on whether to prosecute rested with the National Director of Public Prosecutions, and all regional directors of prosecution should refer such cases to the national office, Nel said.
The head of prosecutions would have to consider, firstly, the strength of the case - whether there was a reasonable chance of conviction based on the evidence collected.
The victim's views would then be considered, beginning with whether or not the victim desired a prosecution.
Other factors, such as the severity of the crime and the possible cost of a
prosecution weighed against a sentence likely to be imposed, would also be taken into account, the amended guidelines state.
The interests of affected communities would also need to be taken into account, bearing in mind, for example, the possibility of disturbances that might arise from a decision to prosecute or not, Nel said.
Should a decision be taken not to prosecute, a perpetrator would not be protected against a private, civil prosecution, as was the case during the mandate of the Truth Commission in the event of someone being denied amnesty.
Criteria similar to those used by the TRC's Amnesty Committee also feature in the amended prosecutions policy, such as whether the alleged offender had made "full disclosure" of all facts relating to a past crime, whether the alleged offence was associated with a political objective, and the person's motive.
The head of prosecutions also has wide-ranging discretion on whether to
prosecute an alleged perpetrator based on factors such as state of health, personal credibility, degree of remorse shown, sensitivity to restitution, commitment to reconciliation, renunciation, and the "degree of indoctrination" to which the person was subjected.
Further or renewed traumatisation of victims is another factor guiding the policy, as is the question whether prosecution would support or undermine reconciliation and nation-building.
Fatima Chohan-Kota, the chairperson of Parliament's portfolio committee on justice and constitutional development, said prosecutions of apartheid-era human rights offenders who were not given amnesty would be a process that could go on for years and years.
"It will be part and parcel of what the National Prosecuting Authority will be doing henceforth," she said, adding that it was "a legacy of what we live with as South Africans and as a country."