TRC Commission Must Out Authors of Miscarriages of Justice

GOOD Statement by Brett Herron, GOOD Secretary-General:

The establishment by the President of a commission of inquiry into decades-long delays in investigating and prosecuting apartheid-era cases effectively places the Thabo Mbeki administration and the NPA on trial for miscarriages of justice. Announcing the new commission today, the President said that for many years there had been allegations that “unacceptable delays” were due to interference.

Earlier this year, former President Mbeki strongly denied former head of prosecutions Vusi Pikoli’s claims, on affidavit, of political interference. Mbeki and his then Justice Minister, Bridget Mabandla, are opposing a damages claim launched by victims’ families. If Mbeki and/or Mabandla did not interfere, the only other possible finding available to the commission is that the NPA was controlled by rogue elements with the power to prevent apartheid era political leaders and their functionaries being held accountable for their crimes.

Just before he died, the last apartheid President FW De Klerk’s foundation issued a statement alluding to a secret political agreement not to prosecute cases that the Truth and Reconciliation recommended for further scrutiny. The perpetrators in these cases did not apply, or did not qualify, for amnesty from the TRC. It has been widely speculated that if such a deal were struck, it could only have been to protect members of the ANC on whom the apartheid government had collected compromising information.

The new Commission of Inquiry, chaired by retired Constitutional Court Judge (and former TRC Commissioner) Sisi Khampepe, has been charged with making findings and recommendations on whether attempts were made to influence members of the police or NPA, and whether further investigations or prosecutions should follow.
The President also wants the Commission to make a finding on “whether the payment of any amount in constitutional damages to any person is appropriate”.

Including this element in the Commission’s terms of reference is arguably interfering with justice, in itself, as that question has already been taken by victims’ families to court. “The President respects the decision of the families to seek a court order on the violation of their rights and constitutional damages through the courts. However, government is seeking a stay of application on these outstanding matters pending the conclusion and outcomes of the commission of inquiry,” the statement from the Presidency read.

The families are unlikely to agree…

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