Is Thabo Mbeki Guilty of Dereliction of Duties?

GOOD Statement by Brett Herron, GOOD Secretary-General:

Whether or not former President Thabo Mbeki succeeds in his application to join the case brought by victims of apartheid against government, being argued in the Gauteng High Court today, the former President has a duty to explain the State’s disinterest or inability to prosecute apartheid-era cases recommended for prosecution by the TRC. Rather than applying to join the litigation as a party, so he can appeal the outcome as he deems necessary, if Mbeki has nothing to worry about, he should have applied to join the case as a friend of the court.

The TRC was established in 1995 as South Africa’s premier transitional justice vehicle, granting amnesty to qualifying perpetrators of human rights violations, and making recommendations on reparations for victims and prosecutions for those not granted amnesty. The State elected not to follow the vast majority of recommendations, making lower reparations payments than suggested, ignoring the recommendations on economic justice and narrowing inequality, and conducting no prosecutions.

According to former head of the NPA Vusi Pikoli, he received political instructions to stop the prosecutions. Pikoli was fired in 2007 by President Mbeki. Although Pikoli’s statements alleged criminality and unconstitutionality, neither Mbeki nor his erstwhile Justice Minister Bridget Mabandla ever sued him for damaging their reputations.

President Cyril Ramaphosa recently announced the establishment of a judicial commission to investigate these matters. In the meantime, the damages litigation brought by families of apartheid-era victims is proceeding. It is in this matter that the former President and his justice minister seek to intervene.

If the NPA was not following political instructions, was it a law unto itself? Was there a deal between the apartheid and post-apartheid governments not to conduct prosecutions, as former President FW De Klerk alleged? Did the politicians then in charge of the country not notice that the NPA was failing to prosecute the alleged killers of their own political comrades? And, to what extent did political interference in the NPA create a precedent from which South Africa’s criminal justice system has yet to recover?

These questions are fundamental to justice, the families of victims, and the integrity of South Africa’s transition to a constitutional democracy. Whether in a court of law or before a judicial commission, the people best-positioned to answer the questions are former Presidents Mbeki, Motlanthe and Zuma, the accounting officers for their administrations.

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