Unfinished business of the TRC

It is indeed an indication of the deep scars inflicted by our painful past that thirteen years after the attainment of our freedom we still have to grapple with matters of persons who committed offences that might be categorised as political, creating the possibility that we can be accused of having political prisoners.

“In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date which shall be a date after 8 October 1990 and before 6 December 1993 ... providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed....”

This Post-amble set the stage for the adoption of the Promotion of National Unity and Reconciliation Act, (TRC Act) 1995. Among other things, the TRC Act created the political and moral climate for the consolidation of our democracy and fostering a culture of human rights.

It provided for the establishment of the Truth and Reconciliation Commission (TRC), with the specific purpose of promoting national unity, reconciliation and healing, in a spirit of forgiveness, compassion and understanding.

Undoubtedly, the TRC was an important process which, while confronting our ugly past, sought to help us to advance beyond the very conflicts and divisions that had brought pain and suffering among many of our compatriots.

The final act of the Commission as it concluded its important work, was to make recommendations to the President in respect of reparations to the victims of gross human rights violations.

Amnesty and national reconciliation

The drafters of the Interim Constitution also saw amnesty as an essential element of the quest to advance reconciliation and national unity. The amnesty process of the TRC was therefore a massive undertaking in terms of building bridges across the great divides caused by racial conflict and repression.

The cut-off date, relating to offences that could be considered by the TRC’s Amnesty Committee, was initially set by the Post-amble of our Interim Constitution to be before the 6th of December 1993.

However, following requests from various political formations, especially those organisations whose members were incarcerated for offences committed just before the 1994 elections, and because of our relentless pursuit of the objective of national reconciliation, we all agreed to an extension of the cut-off date to 10 May 1994, the day of the Inauguration of the new, democratically-elected President of the Republic.

While this new date served to accommodate the concerns of various individuals, members and supporters of various political organisations and thus further promoted national reconciliation in the run-up to our country’s first ever democratic elections in 1994, this date did not take into consideration that political violence in this country, especially in certain areas such as KwaZulu Natal, persisted well beyond that cut-off date.

Therefore, once the TRC had finished its business, we still had a number of issues, such as the question of amnesty for many South Africans who had not participated in the TRC process for a number of reasons, which had to be finalised. It thus became clear that the so-called “unfinished business” of the TRC would have to be finished in one way or another.

Opening via the National Prosecuting Authority

When I was privileged to address a Joint Sitting such as this one, on 15 April 2003, tabling the Final Report of the Truth and Reconciliation Committee, I referred to one element of this “unfinished business”. I said:

“Yet we also have to deal with the reality that many of the participants in the conflict of the past did not take part in the TRC process. Among these are individuals who were misled by their leadership to treat the process with disdain. Others themselves calculated that they would not be found out, either due to poor TRC investigations or what they believed and still believe is too complex a web of concealment for anyone to unravel. Yet other operatives expected the political leadership of the state institutions to which they belonged to provide the overall context against which they could present their cases: and this was not to be.

“Government is of the firm conviction that we cannot resolve this matter by setting up yet another amnesty process. We have therefore left this matter in the hands of the National Directorate of Public Prosecutions, for it to pursue any cases that, as is normal practice, it believes deserve prosecution and can be prosecuted. This work is continuing.

“However, as part of this process and in the national interest, the National Directorate of Public Prosecutions, working with our intelligence agencies, will leave its doors open for those who are prepared to divulge information at their disposal and to co-operate in unearthing the truth, for them to enter into arrangements that are standard in the normal execution of justice, and which are accommodated in our legislation.”

This means that those who committed offences of the kind that was considered by the TRC Amnesty Committee, who did not apply for amnesty and have not been convicted for any offences they may have committed, are free to approach the National Director of Public Prosecutions and engage in the processes we have described.

Pardons for convicted people

From as early as the year 2000, after the mechanisms put in place by the TRC Act had fulfilled their statutory mandates, we have with ever-increasing regularity received requests for pardon from various political parties, organisations and individuals, in respect of individuals who have been sentenced by our courts for serious offences, both before and after the 10 May 1994 TRC cut-off date, allegedly in furtherance of political objectives or aims, arising out of conflicts of the past.

Currently, government is in possession of at least 1,062 applications for presidential pardons by people who have been found guilty of offences which were allegedly committed with a political motive, arising from the conflicts of the past. I have not found any of the existing (statutory) measures suitable to deal with the specific matters at hand, (the processing of the requests for presidential pardons), in a flexible, decisive and speedy manner.

As a way forward and in the interest of nation-building, national reconciliation and the further enhancement of national cohesion, and in order to make a further break with matters which arise from the conflicts of the past, consideration has therefore been given to the use of the Presidential pardon to deal with this “unfinished business.”

As the Hon Members know, our Constitution says that the President is responsible for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures.” (Article 84(2) (j).)

The Hon Members will also remember the 1997 ruling of the Constitutional Court in the matter of the President of the Republic of South Africa v Hugo. The Court said: said, “No prisoner has a right to be pardoned, to be reprieved or to have a sentence remitted. The Interim Constitution places such matters within the power of the President.”

I believe that the sum total of all this is that the President has an obligation to consider all requests made to him or her to pardon or reprieve offenders and remit any fines, penalties or forfeitures.

At the same time, having thus applied his or her mind, the President is under no obligation to accede to the requests made to him or her, provided that she or he proceeds in a rational manner.

The Reference Group

I requested the convening of this Joint Sitting to inform the Hon Members of Parliament that, considering what the nation sought to achieve through the TRC process, I have decided to institute a special process to assist me as I discharge my constitutional obligation to consider the requests for pardon from people who have already been convicted for offences they claim belong among the category of offences that were considered by the TRC Amnesty Committee.

This process will cover the requests for pardon of those people convicted for offences they claim were politically motivated, and who were not denied amnesty by the TRC.

Further to entrench the practice the nation has sought to cultivate, of acting in unity as it addresses the crimes of the past, I would like the political parties represented in our Parliament to assist me properly to discharge my constitutional responsibility to consider the requests made to the President to pardon those who have been convicted in the context of the circumstances I have mentioned.

I therefore take this opportunity to request the political parties represented in this Parliament each to appoint a representative who would serve on a Reference Group that would consider each of the requests for pardon which the President would refer to the Group, and then make its considered recommendations to the President.

Needless to say, this will not in any way subtract from the obligation placed by the Constitution on the President, and described by the Constitutional Court, for the President to grant pardons, etc. In other words, the constitutional task to grant pardons and so on will remain with the President.

However, the President would seriously take into account the recommendations made by the Reference Group, respecting the effort the nation has made to unite behind the objective of responding to the conflicts of the past, in the interest of promoting the critical objectives of national reconciliation and nation-building.

The window of opportunity

During a three-month “window of opportunity,” covering the period 15 January to 15 April 2008, persons who were convicted for offences they believe were of the nature of the offences considered by the TRC during the period up to 16 June 1999, will have the opportunity to apply for a Presidential pardon in the prescribed manner, if they have not already done so.

Applicants who were convicted for involvement in any offence of a sexual nature, or any act of a domestic violence nature, or any offence referred to in section 13 of the Drugs and Drug Trafficking Act, 1992, which relates to the manufacture and supply of scheduled substances, the use and possession of drugs and dealing in drugs, will not qualify for consideration.

In order to ensure that we do not undermine the work of the TRC, applicants who had applied to the Amnesty Committee established under the TRC Act and whose application for amnesty was refused, will not be considered for this Presidential pardon process.

The President will make his decision whether to refuse or grant pardon on each application placed before him, on an individual basis.

The Presidency and the Department of Justice and Constitutional Development will announce further details about this process.

Act in concert for national harmony

I trust that all the political parties represented in our Parliament will respond positively to our invitation and request to them, to appoint a representative to serve on the Reference Group. Such representatives need not be Members of Parliament. And naturally, there is also no obligation on any political party to agree to be represented on the Reference Group.

As I said earlier, all of us have a responsibility to help our country to advance further away from the conflicts of the past, to work together for a shared future that is free of violence, free of bitterness, free of prejudice, free of the albatross of the past – a future of harmony, of respect for the Constitution and the law, of peace and prosperity for all our citizens.

Once again, as the late Nkosi Albert Luthuli, Africa’s first Nobel Peace Prize laureate once said in different circumstances, we continue to knock at the door of all our compatriots, humbly requesting that we act in concert to pursue what must clearly be a shared and noble goal.

This Letter is an abridged version of the important speech made by President Mbeki to a Joint Sitting of the Houses of Parliament on 21 November 2007. The speech addressed the task to consider Presidential pardons for those people who have been sentenced by our courts allegedly for offences of the kind considered by the Amnesty Committee of the TRC. The full text of the speech can be found on the ANC and government websites.

Editor.

What the media says

Lies, damned lies! (Part II)

Perhaps not surprisingly, given its pedigree, the South African newspaper The Citizen has sprung to the defence of Chris McGreal, whose bare-faced fabrications about the so-called ‘arms deal’ we detailed in our last edition (Vol 7 No 45).

The newspaper published two articles on this matter in its 20 November 2007 edition. One of these was entitled “Mbeki arms deal row hots up”. The second was headed “R6 billion spent after informal chat: Feinstein”. Continuing its crusade, the following day, 21 November, The Citizen published yet another article, entitled “Mbeki running scared: author”.

In the article “Mbeki arms deal row hots up”, written by Paul Kirk, who is well-known among media practitioners, The Citizen said: “And The Citizen has also obtained dramatic evidence of how Mbeki sat in on irregular meetings that swung multibillion-rand deals the way of BAe.

“These documents, obtained from many different sources, suggest that Mbeki played a crucial role in buying an unsuitable jet because the manufacturer had allegedly paid millions in bribes.”

The allegation made by The Citizen revolves around the claim that “the South African Air Force (SAAF) wanted the much cheaper Italian-made MB339 trainer, not the more expensive Hawk.”

The Joint Investigating Team

Among other things, it is clear that The Citizen has forgotten or has chosen to forget that three state institutions, the Auditor General, the National Director of Public Prosecutions and the Public Protector – the Joint Investigating Team (JIT) – conducted an eight-month-long investigation of the Strategic Defence Packages, the ‘arms deal’.

The Joint Report of the JIT is freely available on the government website. Chapter 4 of the report is headed “Selection of Prime Contractors – ALFA & LIFT”. This 50-page Chapter contains a very detailed account of the processes that took place leading to the decision of our Government to opt for the Hawk rather than the Aeromacchi trainer. (Some of the “dramatic evidence” The Citizen “reveals” is, in fact, contained in this Chapter.)

The Citizen claims that it has “dramatic evidence” based on “documents obtained from many different sources”, which show that President Mbeki engaged in corrupt practices that led to the decision to buy the Hawk. The Joint Report we have mentioned found no evidence of such corruption, as indeed it could not, for the simple reason that none had occurred.
The Joint Report was studied by eight Parliamentary Committees, which also interviewed the JIT over a period of two days. In this regard, a later Report of the Auditor General said:

“The two-day interaction (with the Parliamentary Committees) was an extensive process and many questions and requests for clarification by the various committee members during that sitting, were responded to by the JIT. During the period 10 to 12 December 2001 the various reports by Committees of Parliament on the JIT Report were tabled.

“The findings and recommendations of SCOPA [Standing Committee on Public Accounts] on the JIT Report are representative of the findings and recommendations of the other Committees and are quoted for ease of reference:

"1. The Committee accepts the findings and recommendations contained in the Report of the JIT, in particular the finding that 'No evidence was found of any improper or unlawful conduct by the government. The irregularities and improprieties referred to in the findings as contained in this report, point to the conduct of certain officials of the government departments involved and cannot, in our view, be ascribed to the President or the Ministers involved in their capacity as members of the Ministers’ Committee or Cabinet. There are therefore no grounds to suggest that the Government's contracting position is flawed.’”

BAe vs Aeromacchi

The Citizen, and seemingly Andrew Feinstein, has information that has convinced the newspaper, and Feinstein, that President Mbeki participated in “irregular meetings” which resulted in the Cabinet taking the wrong decision to buy the Hawk rather than the Aeromacchi trainer.

We draw the attention of our readers to some of the comments made by the JIT in its Joint Report in this regard. In its findings, the JIT said:

“The Ministers’ Committee considered very carefully any possible prejudice to tenderers should a non-costed option be considered. It was decided that the consideration of the different options did not amount to moving beyond the parameters of evaluation criteria, but that it was rather a qualitative assessment about the precise value of a weighting figure. The Ministers’ Committee was confident that the manner in which the consideration of the different options was done did not require any further bidding process. None of the unsuccessful bidders complained in this regard as might have been expected had the conduct of the Ministers’ Committee been improper...

“The decision that the evaluation criteria in respect of the LIFT [lead-in fighter trainer] had to be expanded to include a non-costed option and that eventually resulted in a different bidder being selected, was taken by the Ministers’ Committee, a subcommittee of Cabinet. Although unusual in terms of normal procurement practice, this decision was neither unlawful, nor irregular in terms of the procurement process as it evolved during the SDP acquisition. As the ultimate decision-maker, Cabinet was entitled to select the preferred bidder, taking into account the recommendations of the evaluating bodies as well as other factors, such as strategic considerations.

“The decision to recommend the Hawk/Gripen combination to Cabinet as the preferred selection for the LIFT/ALFA [advanced light fighter aircraft] was taken by the Ministers’ Committee for strategical (sic) reasons, including the total benefit to the country in terms of counter trade investment and the operational capabilities of the SANDF.”

However, it is clear from the articles it has published that The Citizen disagrees with the JIT findings, which Parliament accepted. Obviously, it is convinced that the “many different sources” that supplied it with various documents, as well as its favourite author, Andrew Feinstein, have more accurate knowledge of what happened with regard to the Strategic Defence Packages, including ALFA and LIFT.

An obligation to fight corruption

We must assume that The Citizen has decided to pursue the matter of the ‘arms deal’ because it is determined to expose and fight against corruption. We therefore suggest that The Citizen should approach our Parliament, or any other state institution of its choice, to present the “dramatic evidence” it has, so that action is taken against the wrongdoers, who allegedly include the President.

We must also assume that both Parliament and our Police Service would be most interested to investigate the allegations of corruption made in the documents in the possession of The Citizen. Should they request the assistance of The Citizen in this regard, we trust that the newspaper will cooperate fully, to contribute to the achievement of the vitally important objective of defeating the scourge of corruption.

This is especially important given the charge made by The Citizen that, “These documents, obtained from many different sources, suggest that Mbeki played a crucial role in buying an unsuitable jet because the manufacturer had allegedly paid millions in bribes.”

It is perfectly obvious that there is a determined campaign by some in the domestic and international media to shape the leadership, the character and the policies of the ANC. This campaign includes the propagation of all manner of stories which, among other things, seek to implant in the public mind manufactured images of some of our leaders as heroes, heroines or villains.

The article headed “Mbeki running scared: author”, again written by Paul Kirk, said: “Thabo Mbeki is running scared of a proper investigation of the arms deal he masterminded – terrified that German and British investigations might land him and his presidency in the dock.

“That’s the opinion of Andrew Feinstein, the ranking ANC representative on Parliament’s Public Accounts Committee at the time, and the man who resigned after his attempts to have arms deal corruption probed were thwarted – largely, he claims, by Mbeki.”

Publish and be damned!

The Germans and the British are perfectly free to publish any information they may have which shows that the decisions of our Government on the Strategic Defence Packages were adopted through a corrupt process. In terms of what Paul Kirk said, it seems obvious that Feinstein is privy to the information the Germans and the British have, which makes our President to be “running scared”.

Given his obviously privileged position, it would be very good if Feinstein could encourage his German and British friends to speak out and tell the truth as it is. That this has not happened communicates the message that Feinstein and his German and British friends find it in their strategic interest to use such outlets as The Citizen to convince the unwary that they have “dramatic evidence”, which they take the greatest care never to disclose.

At the same time it is clear that Feinstein and The Citizen have greater confidence in German and British investigators than they have in our Auditor General, our National Directorate of Public Prosecutions and our Public Protector. For this reason they state this firmly that our President is scared of the German and British investigators, whereas, presumably, he was not scared of our incompetent, or corrupt, or subservient Auditor General, National Directorate of Public Prosecutions and Public Protector.

The African National Congress is now nearly 96 years old. During these decades it has learnt the virtue of patience. It will therefore wait patiently for the day when the truth will out, as it surely will, to answer the question – who is the villain of the piece?

Is it President Mbeki, the then Ministers’ Committee and the Cabinet, or is it Andrew Feinstein, Paul Kirk, The Citizen, and the ‘German and British investigators’?

The Citizen would do our people and our democracy a sterling service if it honoured its moral duty to its profession and the nation and provided the information in its possession to our state institutions, as we have suggested, to enable all of us to take firm action to punish those who are corrupt, including, if need be, President Mbeki. We are certain it could do this without having to disclose its “sources”.

In future editions of this journal, we will do our best to keep our readers informed about how The Citizen has responded to our appeal for it to do the right thing and assist our government and nation to take speedy and decisive action against corruption. In its 20 November edition, The Citizen reports that Andrew Feinstein has asked this journal to give him space to communicate his views. Feinstein knows that at some point he decided to desert the ANC and position himself as an opponent. It is strange that he expects that an ANC journal should give him space to pursue his agenda. It is patently obvious that he has access to other media which are sympathetic to his cause, and would surely jump to publish his offerings. So far, Chris McGreal has not responded to our offer to him to respond to the challenges we posed in this column in our last edition.

Editor.

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