South Africa faces a quandary over what action to take against human rights violators
South Africa's Truth and Reconciliation Commission will shortly issue its final report, calling for prosecution against those who failed to request amnesty. The suggestion risks reopening old wounds, writes Justin O'Brien from Cape Town.
Tikapela Johannes Mbelo has the cold eyes of a practised killer. But despite his self-confessed involvement in torture, abduction and murder, he will never see the inside of a jail.
The remote threat of a prison sentence was finally lifted last month when the South African Truth and Reconciliation Commission (TRC) concluded his frank confessions merited amnesty. For Mbelo, a key operative in an elite anti-terrorist unit, torture was simply the most effective manner of eliciting information during the apartheid era.
"Torturing people was the most used method in the security establishment of obtaining evidence or of obtaining information from any suspect or suspected guerrillas and it benefited the security branch, because they could gather more information in a very short time," he told a session of the TRC in Cape Town in November 1997.
Today, Mbelo remains a senior police officer, transferred from security to witness protection. Mbelo may have amnesty but is at pains to point out that the violence, endemic during the apartheid era, was simply a product of the times.
"At that time I was feeling nothing because it was part and parcel of the job we were doing. We were under the impression that we were not fighting the ANC as such, the fight was against terrorism."
It is this justification that now presents South Africa with an acute dilemma.
Although the TRC processed over 7,000 claims for amnesty, the applications represented a small fraction of the human rights violations carried out between 1960-1994, primarily by the police but also by the South African Defence Forces, supporters of the ANC and its rival the Inkatha Freedom Party. The critical question is what to do with those violators of human rights who did not apply for amnesty?
For Martin Coetzee, the executive secretary of the Amnesty Committee of the TRC, now packing up his office in central Cape Town at the end of a six-year investigation process, there is no choice.
The final report of the TRC is being presented to the South African parliament with definitive conclusions.
"It is absolutely imperative that you do investigate and prosecute where it is necessary otherwise it would come to amnesty by default. I think it is also in the interest of the population as a whole to see that where there are heinous crimes committed against humanity or human rights abuses that those people should be brought to task," says Mr Coetzee.
"And really," he caustically adds with more than a hint of frustration, "everybody has had an opportunity to apply for amnesty."
For the ANC government, the tabling of the amnesty report, far from providing closure to the ravages of apartheid, risks revisiting the past with vengeance. In the process it creates a legal and political crisis, a point conceded by the Minister of Justice, Penuel Maduna, who will play a decisive role in mapping out the government's response to the TRC's conclusions.
"I toss and turn over these questions. I know that the critical moment is coming - and coming very fast and furiously - when I have to play a leading role in debating these issues and proffering answers. I am torn between the legitimate clamour for justice on the one hand and the fear that you may unravel in the process whatever we want to believe we have done and achieved since the demise of the apartheid system in this country. You don't want to unleash anarchy. You don't want people to take the law into their own hands. You don't want them to say: 'I know that so and so killed so and so and I'm going to lynch them myself'."
This harsh reality is neatly encapsulated in one of the three cases for which Tikapela Mbelo was provided amnesty: the killing of seven suspected members of the fringe APLA (Azanian Peoples' Liberation Army) in the Cape Town suburb of Guguletu in March 1987. Mbelo and his colleagues were despatched from their headquarters at the notorious Vlakspaas farm complex outside Pretoria to eliminate alleged activists in the Western Cape.
The unit infiltrated a street gang, supplied them with weapons and even suggested an attack on a police station. The only evidence proffered against the gang members for staging the ambush was that during earlier surveillance they had referred to each other as "comrades".
Nevertheless, at a planning meeting, Mbelo alleges he was told in no uncertain terms that the gang had to be "swept" or "eliminated" - code for murdered.
The young black men walked into a trap. Seven people were killed. After the fire-fight weapons were placed beside the dead in order to buttress police claims of a proportionate response to armed and dangerous terrorists. The truth of what had really happened only emerged at the TRC. "It was state-sponsored murder," says Mbelo, who claims he was forced by a white officer to assassinate an unarmed member of the gang.
"I told him that this man was going to take us to where the rest of the team is, but he just said I must shoot him. I shot him whilst he was lying on his back, I shot him in the head. Thereafter, this sergeant told me that I should sit, and he shot him in his stomach with the R1 rifle whilst he [the gang member] was still lying on his back."
Only two of the police officers involved in the Guguletu shootings applied for amnesty. Under the terms of the legislation governing the Amnesty Committee, no information provided by a witness in the course of a hearing can be used to incriminate the informant. Crucially, however, the testimony can be used to build an evidential trail against others implicated in the incident who had chosen not to avail of the amnesty. While Mbelo and his colleague have been granted immunity, their testimony at open public hearings, is now housed in government archives in Pretoria and is at the disposal of the national prosecuting authority.
Martin Coetzee of the TRC suggests a successful prosecution in this, and many other cases, could now be mounted. "I think that the national prosecuting authority would look at this particular case and will then make up its mind whether to prosecute people or not to prosecute people. The Amnesty Committee certainly felt that it was an offence that was committed within the context of the political situation at that stage and the people made a full disclosure and as a result of that they were granted amnesty. Certainly, it won't be an excuse any more to say that you committed that for political objective."
This uncompromising view is one endorsed by the leading South African novelist, Andre Brink. "It is so terribly, terribly unfair to many people who went through the harrowing experience of stripping their minds and lives naked in front of the world in order to arrive at the truth and then simply to discard that while all the others can go scot free - it's just not fair."
"A sense of justice has to be allied to this search for truth and reconciliation," says Mr Brink, Professor of English at the University of Cape Town. The reality is, however, that the decision to mount a series of what will be perceived to be show trials across the country is essentially a political one in which the balance of advantage has to be carefully weighed. The Ministry of Justice concedes there is a very real danger that any future prosecutions could be perceived as an attempt by the victors of the South African conflict persecuting the politically vanquished.
Doing nothing, however, particularly with so many alleged perpetrators of human rights abuses still serving in the police and armed forces, risks alienating the ANC government from the struggle it identifies with. It is a risk explicitly acknowledged by the Minister of Justice, Penuel Maduna.
"I would be prepared to debate with anybody whether or not this country needs more reconciliation or a series of miniature types of Nuremburg trials At the same time you don't want anybody to say: 'Oh well, what would you expect of these people? They are now buddy buddies with the people who did all manner of things to us in the past - so what would you expect of them?'
"The answers are not easy but then again whoever said the answers would be easy?"
Justin O'Brien is editor, current affairs, at UTV. His film on the South African Truth and Reconciliation process, Day of Reckoning, will be shown on UTV at 9 p.m. tonight.
Tomorrow: As Northern Ireland grapples with the issue of amnesty, Justin O'Brien examines whether the South African experience offers any pointers for the way ahead.