APARTHEID-ERA PROSECUTION REOPENS WOUNDS

C O N F I D E N T I A L SECTION 01 OF 03 PRETORIA 002906 SIPDIS SIPDIS E.O. 12958: DECL: 08/17/2017 TAGS: PGOV KJUS KHUM SF SUBJECT: APARTHEID-ERA PROSECUTION REOPENS WOUNDS PRETORIA 00002906 001.2 OF 003 Classified By: Deputy Chief of Mission Donald Teitelbaum. Reasons 1.4( b) and (d). ¶1. (C) SUMMARY. On 17 August, former Law and Order Minister Adriaan Vlok, former police chief Johann van der Merwe, and three lower-ranking officers pleaded guilty to the charge of attempted murder of anti-apartheid activist Reverend Frank Chikane in 1989. The National Prosecuting Authority's (NPA) decision to press charges, four years after the Truth and Reconciliation Commission (TRC)'s work ended, has received mixed, but largely predictable, reactions from the black and white communities. For the most part, blacks appear at ease with the NPA's decision, arguing that forgiveness and justice are not the same, while many whites fear that this is the beginning of a witch-hunt for those who never asked or were never given political amnesty. In the end, the vast majority of those guilty of committing apartheid-era crimes -- both black and white -- likely have little to fear given the unusual circumstances of the case (Vlok initiated contact with the NPA to confess),the difficulty prosecuting decades-old cases, and the lack of public outcry for more. END SUMMARY. -------------- - EX-OFFICIALS CHARGED WITH APARTHEID-ERA CRIMES -------------- - ¶2. (C) On 17 August, former Minister of Law and Order Adriaan Vlok, former police chief Johann van der Merwe, former major general Chrisoffel Smith, and former colonels Gert Otto and Johannes van Staden pleaded guilty to the charge of attempted murder in the 1989 assassination attempt of Reverend Frank Chikane. Director General of President Mbeki's Office since 1999, Chikane was Secretary General of the South African Council of Churches at the time of the attack. According to press reports, apartheid-era officials, including Vlok and then-President de Klerk, sanctioned the impregnation of Chikane's underwear with Paraoxon, a poison that attacks the nervous system. Only after medical care at the University of Wisconsin did Chikane recover. The National Prosecuting Authority (NPA) has agreed to a plea bargain deal in which Vlok and others would receive suspended sentences. High Court Judge Eben Jordaan will now have to consider whether to accept the terms of the plea package. -------------- -------------- CASE OPENS WOUNDS FOR SOME, CLOSES DOOR FOR OTHERS -------------- -------------- ¶3. (U) The Truth and Reconciliation Commission (TRC) was born out compromises made during negotiations between the apartheid government and South Africa's liberation movements and helped pave the way for the 1994 democratic election. Negotiators agreed that in exchange for TRC testimony, amnesty would be granted to those who had violated human rights under apartheid provided that the crimes were politically motivated, proportionate, and there was full disclosure. In 1996, the process began with widely televised public meetings where both victims and perpetrators broke the silence that had surrounded 34 years of apartheid. Out of 7,112 petitioners who applied, only 849 were granted amnesty. Almost 5,400 were denied amnesty, while others were excluded under a number of additional categories such as "withdrawn." ¶4. (C) Most South Africans admit that while the TRC helped the country move forward, it left unanswered questions for many black South Africans who cannot find peace until they know what happened to their friends, comrades, or loved ones. Many, including political analyst Justice Malala and Executive Director Ahmed Motala of the South Africa's Centre for Violence and Reconciliation, believe that the TRC process failed to achieve reconciliation between blacks and whites and that it was weighed in favor of the perpetrators rather than victims. Malala recounted to PolOff how angry he would get watching "black person after black person cry their eyes out." Malala says that Vlok's prosecution shows that "their tears weren't shed for nothing." Former TRC Commissioner Fazel Randera disagrees that the TRC did not achieve reconciliation, but did admit to PolOff on 17 August that commissioners were disappointed by the lack of participation from the white community. Randera said that this was in spite of his and other commissioners' personal efforts to go out and speak to white political parties and churches to encourage their participation. Nevertheless, apart from a few vocal groups, including the relatives of the famous "Craddock Four," there also does not seem to be a public clamor for additional prosecutions. PRETORIA 00002906 002.2 OF 003 ¶5. (C) On the other side, many whites do not understand why the government has charged those who committed crimes under apartheid. The Freedom Front Plus, a white-dominated conservative political opposition party, publicly criticized the move, calling it a mistake and a process "that has been skewed in favor of the ANC from the outset." Panyaza Lesufi, NPA spokesperson, bluntly responded by saying that "we are unapologetically biased toward victims." The civil rights group AfriForum, which is linked to the traditionally Afrikaaner trade union Solidarity, also has threatened to expose crimes committed by senior ANC leaders, such as laying landmines in the 1980s, unless the NPA stops pursuing political prosecutions of apartheid-era events. AfriForum insists it is not out for revenge, instead arguing its tit-for-tat threat is being done in the name of reconciliation. ¶6. (C) The Afrikaaner community, in particular, appears largely ill at ease. Cotzee Bester, a former advisor to President de Klerk, echoed these sentiments when he told PolOffs on 07 August that many Afrikaaners feel as if they are being persecuted. "Afrikaaners can't handle the loss of power, the guilt for what happened under apartheid, and take responsibility for their previous actions all at the same time," said Bester. University of South Africa political science professor Dirk Kotze echoed these sentiments when he described to PolOff the reactions he received when he was a guest on an Afrikaans-language radio program in early August about the Vlok case. Kotze said that callers honed in on two themes: 1) the ANC is on a witchhunt; and 2) the NPA should go after ANC members who also committed crimes during apartheid. The South African Human Rights Commission has cautioned that the process should not be seen as a witchhunt and reminded the public that those who committed crimes during the apartheid era and failed to take advantage of the TRC process knew they could be prosecuted. Moreover, Randera told PolOff that the TRC was not about "general amnesty anymore than general amnesia." -------------- VLOK NOT NECESSARILY A HARBINGER -------------- ¶7. (C) Advocate Peter Mothle, who was Director of Lawyers for Human Rights from 1988-1992, told PolOffs that Vlok contacted the NPA to further disclose knowledge of other apartheid-era crimes, not the other way around. Professor Kotze also confirmed Vlok's approach to the NPA, adding that the NPA was ready to accept a private plea bargain, which would have provided Vlok "a platform in exchange for information." This makes sense because NPA's decision to publicly prosecute took many by surprise, including Mothle. First, Vlok had already received political amnesty from the TRC for several other political crimes, including the bombing of a trade union building and a church. However, he never confessed to his role in or knowledge of Chikane's poisoning. Second, Vlok, perhaps more than any other apartheid-era leader, is often portrayed as a man haunted by his past who has exhibited remorse for his actions. Vlok, who is a devout Christian, received international media attention in August 2006 when he washed Chikane's feet as an act of contrition. Though some doubt Vlok's sincerity, many, including Chikane and Randera, do not. ¶8. (C) According to Professor Kotze, the NPA was forced to publicly charge Vlok and others after George Bizos (Mandela's former lawyer) and the NGO Legal Resources Center (LRC) found out about the behind-the-scenes deal. Buttressing Bizos' and LRC's argument is pending litigation against several amendments to the NPAs authority regarding prosecutions stemming from the TRC's work. The amendments, which were approved by Cabinet in 2005, give the NPA the extraordinary powers of the TRC's amnesty panel, but also additional discretion to decide whether or not perpetrators have shown enough remorse. Several human rights organizations are challenging the amendments' validity with the Pretoria High Court, arguing that the amendments infringe on victims' constitutional rights to seek redress and allow immunity from prosecution -- through plea bargains behind closed doors -- for those guilty of serious human rights abuses. ¶9. (C) Peter van Zyl, executive vice-president of International Center for Transitional Justice (ICTJ),which was set up by the former TRC deputy chairperson, Alex Boraine, also insists the current policy is out of step with international law and standards. He argues that the UN no PRETORIA 00002906 003.2 OF 003 longer endorses blanket amnesty for gross violations of human rights. Archbishop Desmond Tutu also has tried to persuade Mbeki to place a moratorium on post-TRC prosecutions of apartheid perpetrators as a way to stave off a lengthy constitutional challenge to the NPA's policy guidelines for prosecuting those who either failed or shunned the TRC's amnesty process. ¶10. (C) In the end, neither Randera, Kotze, nor Mothle believe that the NPA is likely to pursue many other perpetrators of apartheid-era crimes. Despite initial media speculation that the Vlok case could lead to a case against former President de Klerk, the NPA publicly said on 30 July that "there is no formal investigation of Mr. de Klerk." Randera points out the sheer difficulty in gathering enough evidence to successfully prosecute crimes, many of which were committed decades ago. He also noted that two of the NPA's most publicized attempts of trying apartheid-era officials -- Wouter "Dr. Death" Basson, who was head of the country's secret biological and chemical warfare program, and General SIPDIS Magnus Malan, former Minister of Defense who was charged with murdering 13 people in the KwaMakhutha Massacre -- failed after both were acquitted due to lack of evidence. Kotze and Mothle also point out that the ANC could eventually be compelled to implicate its own members as well, for their role in human rights abuses during the struggle. -------------- ZUMA CAMP FEARS ANOTHER CONSPIRACY -------------- ¶11. (C) Kotze said his first thought was that by going after Vlok, the NPA was giving a sign that they are not Mbeki's personal political tool. In this sense, the prosecution sits well with many ANC members. Schabir Shaik's brother, Mo, agrees that the NPA would eventually be forced to look into ANC human rights abuses in order to appear balanced, but believes that this could be Mbeki's ultimate goal. Shaik argued to PolOff that this would justify a shift in NPA focus to Mbeki's political rival, ANC Deputy President Jacob Zuma, who was head of ANC intelligence during some of the worst abuses. -------------- COMMENT -------------- ¶12. (C) We do not believe that Vlok's case is going to open a floodgate of either confessions or prosecutions. Many whites are fearful, even those who never committed a crime under apartheid. But those who are guilty are probably not fearful enough to come forward now to confess if they did not do so during the TRC. Blacks appear satisfied that the government is not equating forgiveness with justice, but they are not demanding the NPA go after everyone who did not receive TRC amnesty either. ¶13. (C) The Vlok prosecution may represent only a handful of apartheid-era officials to be charged, but the case has dredged up the past and deeply affected much of South African society by exposing raw tensions and conflicting emotions that lie just beneath the surface. The fact that many are conflicted may be a sign that South Africa is making strides to overcome its horrific past, but it also shows that South Africa has some way to go before developing into Mandela's dream of a rainbow nation. Teitelbaum