Ex-Presidents grilled over apartheid-era prosecutions

Former South African Presidents Thabo Mbeki and Jacob Zuma are expected to face intense scrutiny as they begin their testimony at the Khampepe Commission of Inquiry, which is probing accusations that they politically interfered and influenced delays in prosecuting apartheid-era crimes, notes Legalbrief. Mbeki’s appearance today (Monday and tomorrow (Tuesday) marks a significant moment for the inquiry – with both he and Zuma having tried unsuccessfully to have the inquiry’s chair, Sisi Khampepe, recuse herself, reports Business Day. Zuma has been scheduled to testify on Thursday, but it is unclear if he will due to ill-health and recent hospitalisation. When he took the stand earlier today, Mbeki described claims he allegedly attended secret meetings with apartheid-era defence force and police generals to talk about amnesty mechanisms for them not to face prosecution for apartheid-era crimes as a ‘complete fabrication’, reports TimesLIVE. The terms of reference of the commission probing the failure of the National Prosecuting Authority (NPA) to prosecute Truth and Reconciliation Commission (TRC) cases covers Mbeki’s tenure as head of the executive. Mbeki is testifying before the commission after it was alleged, based on hearsay evidence, that he personally initiated – and from 1998 participated in – a series of secret talks with former apartheid-era South African Defence Force (SADF) generals and police generals aimed at finding a mechanism to avoid prosecutions arising from the conflicts of the past. ‘It’s a complete fabrication; there is no such thing – there were no meetings that took place,’ Mbeki said.

Mbeki said there were never such talks to shield apartheid-era generals’ crimes by him. ‘There was one particular meeting where both generals of the SADF and SAPS (South African Police Service) raised the problem they faced. They said to us what they think needs to happen is that their political principal, then-Deputy President FW de Klerk, ought to come to the amnesty committee and tell the truth about what they did on these matters addressed by the amnesty committee,’ said Mbeki. He told the commission the government under his leadership respected the independence of the TRC and did not interfere with the work of the NPA and decisions on prosecutions, according to TimesLIVE. During his tenure, Mbeki was advised to establish a presidential commission comprising representatives of all parties to the apartheid conflict to investigate and fully document what had transpired and to consider collective amnesty for those who had acted on political or military instructions, states Business Day. The recommendations are contained in a report drafted by a forum made up of then-Deputy President Zuma, erstwhile Minister of Justice Penuell Maduna, and former chiefs of the SADF Magnus Malan, Constand Viljoen, Georg Meiring and Johannes Geldenhuys.

The contents of the report and its treatment are likely to come up during Mbeki's testimony at the inquiry, established by President Cyril Ramaphosa to investigate whether attempts were made between 2003 and the present to obstruct the investigation and prosecution of apartheid-era crimes identified by the TRC. The report, among other things, recommends indemnity for ‘those particularly in the statutory forces who did not know that they committed what the TRC retrospectively called ‘gross violation of human rights’, ‘and amnesty for those who did know they committed illegal acts, particularly members of the liberation movement’. The report further embraces the concept of collective amnesty as a measure to foster national unity, reports Business Day. It is unclear what Mbeki’s attitude was towards these recommendations – a matter he might clarify in his two-day testimony. Mbeki is expected to blame prosecutors and the NPA inherited from the old order, arguing that they were intent on protecting those responsible for crimes committed under apartheid.

Mbeki has previously submitted an 82-page statement to the commission, in which he denies multiple claims, including that he held secret discussions with apartheid generals and De Klerk. The former President is accused of political interference and influencing delays in prosecuting apartheid-era crimes by the Calata group. The group is led by the son of Lukhanyo Calata, whose father, Fort Calata, was among the so-called Cradock Four murdered by apartheid Special Branch police in 1985. The report, drafted by the forum, also sought to address what were found to be the shortcomings of the TRC’s final report. It said this could be done through presidential pardons, collective amnesty, constitutional amendments, separate new legislation and amendments to the TRC Act. The document forms part of a 507-page submission to the Khampepe commission of inquiry. Mbeki’s testimony this week will be followed by former Minister of justice & Constitutional Development Brigitte Mabandla, former Minister Ronnie Kasrils and former Minister of Defence Charles Nqakula, who are also scheduled to appear before the commission, according to Business Day. Maduna has already testified at the commission, telling it that he never granted unlawful amnesty. He did confirm a February 2003 meeting with former apartheid generals and then Safety & Security Minister Charles Nqakula failed because the former generals demanded blanket immunity without full disclosure.

Full Business Day report

Full TimesLIVE report

AfriForum, a South African civil rights organisation which focuses on the interests of Afrikaners, has formally requested that Gerrie Nel, head of its private prosecutions unit, be allowed to cross-examine Mbeki relating to the alleged role suppressing of apartheid-era prosecutions. TimesLIVE reports that among these cases is the 15 December 1985 ANC landmine attack near Musina, which claimed the lives of Kobie van Eck and her two young children, Nelmarie (8) and Nasie (2). AfriForum stated that in 2007, the late Dirk van Eck, husband and father to the victims, approached the organisation to ensure that if past crimes were prosecuted, equal accountability should apply to ANC leaders, including Mbeki. According to AfriForum CEO Kallie Kriel, Mbeki admitted in his affidavit that ANC leaders took ‘policy and programmatic decisions’ that could lead to actions amounting to ‘gross human rights violations’.

Kriel, who testified before the commission in February, argued that ANC leaders should face prosecution for authorising ‘Operation Cetshwayo’, the landmine campaign responsible for the deaths of Van Eck’s family. He further noted that following its 1985 Kabwe Conference, the ANC acted in violation of protocol I of the Geneva Conventions by directly targeting civilians. ‘The ANC and its allies were responsible for hundreds of civilian murders, including approximately 700 “necklace” killings (where a burning tyre was placed around the victim’s neck), around 400 instances of people being burnt alive, and nearly 250 deaths resulting from bomb blasts and shootings,’ Kriel said. In addition to the Van Eck case, AfriForum is seeking justice for the family of Jaap van der Merwe, a civilian killed by ANC infiltrators near the Botswana border on 1 November 1978, according to TimesLIVE. The surviving suspect, who used the alias ‘John Msibi’ at the time, never applied for amnesty through the TRC, despite his identity being known to authorities. AfriForum has called on the Khampepe commission to investigate why Van der Merwe’s alleged killer was never prosecuted despite the evidence available against him.

Full TimesLIVE report

Former NPA director Anton Ackerman previously told the inquiry about how his prosecutions work was blocked. He told the inquiry that while he was preparing indictments against former Security Branch members, Jan Wagener, a lawyer who represented the Security Branch, warned him that he was wasting his time pursuing TRC-related cases, reports EWN. Ackerman testified that Wagener had informed him of high-level discussions involving the SADF, the SAPS, ANC leaders, Mbeki and De Klerk, where a plan was orchestrated to effectively shield apartheid-era perpetrators from prosecution. Ackerman detailed how Mbeki’s 2003 parliamentary statement and changes to the prosecution policy created a de facto backdoor amnesty for apartheid-era perpetrators. He also told the inquiry that a forged memorandum bearing his signature was used in 2006 to claim that 37 ANC leaders were being targeted over the landmines campaign, a move he claimed helped justify his removal from TRC-related cases.

Full EWN report