Khampepe Commission Must Subpoena Former Presidents for Cross-Examination

The evidence of former senior prosecutors to the Khampepe Commission paints a damning picture of political manipulation to stop perpetrators of apartheid-era human rights violations who did not receive amnesty from the Truth and Reconciliation Commission from ever being prosecuted.

The manipulation betrayed victims’ families who participated in TRC processes to provide evidence, betrayed perpetrators who opened themselves to public scrutiny in order to avoid prosecution, betrayed the commissioners and staff of the TRC, and the TRC itself – and ultimately betrayed a set of key principles of South Africa’s political settlement: Acknowledgement, accountability, and nation-building…

Whether or not the political and administrative interference was legally or illegally effected is for Judge Khampepe and her panel to decide. One assumes that the state’s attempts to create new amnesty mechanisms and procedures provide sufficient legal cover for what amounted to a politically driven non-prosecutions policy.

But the Khampepe Commission is not solely focused on the law.

As the President said on establishing the commission: “For many years, there have been allegations of interference in these cases. This alleged interference is seen as the cause of an unacceptable delay in the investigation and prosecution of brutal crimes committed under apartheid. This has caused the families of victims great anguish and frustration. All affected families – and indeed all South Africans – deserve closure and justice. A commission of inquiry with broad and comprehensive terms of reference is an opportunity to establish the truth and provide guidance on any further action that needs to be taken.”

Besides legal answers, in order to achieve such noble aims, the commission must come up with answers relating to morality and integrity. The questions get to the heart of South Africa’s political settlement.

South Africans must know:

• Why, after the country established the TRC as the agreed, nationally negotiated post-apartheid mechanism to grant amnesty to qualifying individuals and foster national unity and reconciliation, the Government saw fit to undermine the commission by not following its recommendations on prosecutions, reparations, and nation-building, including the implementation of a wealth tax?
• Why, when the TRC amnesty process made it clear that those who did not qualify for amnesty should be prosecuted – and South Africa’s iconic advocate, George Bizos SC, successfully opposed amnesty applications on behalf of at least a dozen families – did the Government seek to establish a secretive second amnesty process to grant amnesty to those who had not qualified for amnesty?
• Is it true that, after the TRC, it was agreed by the old National Party and the ANC that perpetrators of human rights on either side would not be held accountable, as alleged by the FW De Klerk Foundation? If so, why? Is it true there were meetings between senior ANC security operatives and their apartheid government counterparts? What did they have to discuss?

There are no better situated South Africans to provide insights into these questions once and for all than the two former Presidents, Thabo Mbeki and Jacob Zuma. The challenge is that both former Presidents have raised a series of technical-legal objections to aspects of the commission – including Judge Khampepe’s chairpersonship.

The experience of the Zondo Commission points to how difficult it can be for commissions to corral Presidents to give evidence. Issuing subpoenas is a good place to start.