FHR’s new webinar series: justice delayed is justice denied
By Katherine Brown, Junior Researcher at FHR
On the 13th of August, the Foundation for Human Rights (FHR) hosted the first of a series of webinars on the Unfinished Business of the Truth and Reconciliation Commission (TRC). The webinar was chaired by Hanif Vally, Executive Director of the FHR, and included a panel discussion between four prominent guest speakers who all have personal history with the TRC. The guests were Thembisile Nkadimeng, sister of the late Nokuthula Simelane, Lukhanyo Calata, son of the late Fort Calata (a member of the Cradock 4), Imtiaz Cajee, nephew of the late Ahmed Timol, and Yasmin Sooka, former Commissioner on the TRC and current Chair of the United Nations Commission on Human Rights in South Sudan and Strategic Advisor to the FHR’s ‘Unfinished Business of the TRC’ Programme.
Despite undeniable achievements of the TRC, the TRC’s transitional justice mandate was not fully met. The TRC envisioned that criminal investigations and prosecutions would take place when perpetrators of apartheid-era crimes were refused or failed to apply for amnesty. This provision lies at the heart of the compromise made in the transition to democracy. However, despite the over four hundred cases handed to the National Prosecuting Authority (NPA) for investigation or prosecution, only a handful cases have been pursued. During the webinar, inaction of the NPA was a recurring theme, especially as it has undermined the rights of victims and their families to justice, truth and accountability of perpetrators.
Ms Sooka attributes the success of re-opened inquests and on-going prosecutions to the tenacity of the families who continue to fight for justice for their loved ones across generations, after decades of injustice. To date, much of the requisite funding to continue these legal efforts on behalf of survivors and victims has come from the FHR and international donors, while the state has financially supported perpetrators’ legal defence. Ms Sooka pointed out that this is unsustainable, untenable and negligent of the state, which should prioritise justice for apartheid victims and survivors. The growing issue for prosecutorial justice is time, as many perpetrators die before they are held criminally accountable for gross violations of human rights. At the same time, victims and survivors die long before they can glimpse the justice they deserve.
Panellists were unanimous in their sense that justice has still not been delivered to an overwhelming majority of apartheid victims and survivors. Personal struggles with the legal system and NPA were discussed in detail, highlighting the lack of capacity and political will to deal with these issues. Ms Nkadimeng noted that despite an imminent court date for her sister later this year, she is not optimistic: “For the past 36 years we have been denied justice… We expected it from the apartheid government, but we never expected it from the South African government, which is led by the African National Congress that worked side by side fighting for the emancipation of South Africans”.
Mr Calata’s story about his sister and his father illustrates how perennially painful the continuing injustice remains: “Every year on her birthday, [my younger sister] is constantly reminded that now she’s turned 35 that means it’s been 35 years since her father was killed. It also means it’s been 35 years where nobody has been held accountable for the murder of her father”.
Similarly, Mr Calata notes the disillusionment experienced by him and his family, is representative of numerous cases in the country: “In 1994, my mother voted with the hope that within a democratic South Africa we will see justice for the Cradock 4.” He further pointed out that if the ANC had the political will to deliver justice, the case of the Cradock 4 could have been concluded the year following its second inquest hearing, in 1994. This would have set a precedent of criminal accountability for apartheid-era crimes and actions. Instead, Mr Calata concluded that “the ANC must stop being corrupt and must govern, for the people who have bled for this country”.
The lack of prosecution of apartheid crimes has created a broader culture of impunity. As Mr Calata said, “we have lived in a society for 26 years under ANC governance where there isn’t accountability or justice. You can basically do whatever you want… What [the ANC] have continued to do is to be corrupt, much like the apartheid government …”. It is imperative to confront this noxious culture of exemption from the law to progress beyond current issues of corruption which persist. For example, regarding state capture, perpetrators of injustice could reasonably expect to escape the consequences of their actions. Perpetrators of any injustice would not be able to get away with it so easily if justice for the past had been prioritised.
Addressing impunity and injustice is critical for South Africa to move forward from its past. Although many perpetrators were ‘forgiven’ by the state’s amnesty policy, the victims have not truly forgiven these and other perpetrators. This has led to a covert (but increasing) resentment of the South African ‘rainbow nation’, which prematurely preaches reconciliation before justice has been delivered.
Ms Nkadimeng noted “the only reason why we are where we are today is because of a lack of commitment from the state” to delivering justice to victims of the past. Mr Calata highlighted this trend as he pointed out that none of the ANC’s resolutions address justice for apartheid-era human rights violations. Without prioritisation and commitment from the ANC, justice will continue to be elusive. Moreover, Mr Calata argued that a lack of commitment to justice also encompasses the lack of commitment to honouring the legacy of liberation which was started and continued by many apartheid-era victims and survivors. Ignoring the dire need for justice undermines any commitment to building the South Africa which so many freedom fighters gave their lives to achieve.
Mr Cajee holds the government totally accountable for “failing to investigate the deaths of their own comrades who were killed in the trenches with them … they are not interested in the plight of people who have sacrificed their lives throughout the country.” The aims of the NPA are at odds with those of the victims/survivors seeking justice, as the meagre attempts to achieve justice are continually delayed. Political parties, the justice portfolio committee and government need to prioritise the promise of the TRC to deliver justice for the victims and survivors of apartheid.
Ms Sooka emphasised that justice can only be realistically achieved by instituting a dedicated prosecutions unit for apartheid-era crimes. The decentralisation of apartheid-era cases has continually delayed the pursuit of justice and consequently not achieved any justice for the families of victims . Ms Sooka also highlighted litigation as the key, if not the only, way to redress South Africa’s past. The FHR, Ms Sooka and other experts in the field, are currently working on a proposal for the NPA based on this premise, citing global examples of special prosecution units as case studies for South Africa to emulate.
The FHR’s webinar series is part of a broader campaign to address the crisis in morality and impunity in South Africa. This is built on the many injustices which have not been addressed or redressed by South Africa’s democratic government, despite the over 25 years since apartheid. The FHR has created a new website dedicated to documenting and monitoring these cases and the ongoing efforts to reach justice for apartheid’s victims and survivors.
Katherine Brown is a junior researcher at the Foundation for Human Rights. Katherine has a Bachelor of Social Sciences Honours in Justice and Transformation from the University of Cape Town, and is a Masters candidate at Sciences Po for International Development at the Paris School for International Affairs.
To download the recording of the webinar click here.
The recording can also be accessed below: