The Truth and Reconciliation Commission has still not resulted in restorative justice

By failing to follow through on the recommendations of the Truth and Reconciliation Commission (TRC), including conducting investigations that would hold those responsible for human rights violations accountable through prosecutions, and exonerate those who had been falsely accused, the State left a wide-open space for anyone with an opinion and social media account – aided and abetted by the false whisperings of agents of the apartheid state and informers – to manipulate our shared history.

The poisoned fruit of this national failure was recently on display in the bitter and divisive squabbles generated by Pascale Lamche’s film, Winnie.

Lamche graphically revealed Winnie’s untold story as well as the unresolved pain in the Madikizela-Mandela family caused by the brutality of the apartheid regime. South Africans needed to know this story, which, quite frankly, the Truth Commission did not tell.

Lamche profited from South Africa’s unsettled history. Shockingly, her story-telling approach relied on the narrative of discredited former agents of the apartheid state, and was stripped of context and dissenting opinions, casting serious doubt on Nelson Mandela’s integrity – and that of South Africa’s negotiated settlement. As Dumisa Ntsebeza, a former commissioner, noted, it was the classic strategy of Stratcom – divide and rule.

It is not only the families of victims of atrocities perpetrated in the past who require truth and closure. The nation, itself, is entitled to the truth about the past, and needs closure. This closure will not happen without social and economic justice, or criminal accountability to accompany the universal franchise we attained 24 years ago. To simply ignore some of the most grievous crimes of the past is incongruent with any approach to justice.

The establishment of the Truth and Reconciliation Commission was envisaged as the beginning of a complex process balancing the objectives of exposing the truth, fostering national reconciliation and granting amnesty. It was not a Truth-At-All-Costs commission. Not everyone who applied for amnesty was guaranteed that they’d receive it; they had to comply with a set of conditions that included proving political objective, demonstrating that the crime was commensurate with the objectives sought, and revealing the unabridged truth. Many perpetrators did not apply for amnesty at all, perhaps in the belief that their participation in crimes would never be revealed.

Granting amnesty was the commission’s carrot, and the subsequent prosecution of those who failed to apply or be granted amnesty was its stick. But wielding the stick depended on the National Prosecution Authority, which for the past 20 years has demonstrated a singular aversion to tackling any of these matters.

In 2017, 21 years after an elderly Mrs Hawa Timol begged the Truth and Reconciliation Commission to persuade prosecutorial authorities to re-investigate her son’s death, the State re-opened and overturned the apartheid magistrate’s finding that Ahmed Timol committed suicide, replacing it with a finding of murder at the hands of police. The reason the State re-opened the case was largely the detective work and insistence of Timol’s nephew, Mr Justice Billy Mothle said in his judgment.

Six months later, we continue to await word from the NPA on the prosecution of former security policemen recommended by Judge Mothle.

Nokuthula Simelane’s family is waiting, too. Four former policemen were charged with murder early in 2016, but the case has subsequently been delayed. Among the causes for the delays has been disagreement over who should pay for the legal defence of the accused.

What does it say about our progress as a nation that while the NPA is stridently held to account over its willingness to prosecute former president Jacob Zuma for corruption, zero pressure is applied to prosecute known perpetrators of the most heinous apartheid-era crimes. Who makes these decisions?

According to Vusi Pikoli, the former National Director of Prosecutions, the decisions are those of “powerful elements within government” who fear that the NPA would target senior ANC officials for crimes committed before 1994.

In a 2015 affidavit tabled in the North Gauteng High Court relating to the Simelane case – one of 300 cases the TRC asked the NPA to investigate – Pikoli stated:

“I confirm that there was political interference that effectively barred or delayed the investigation and possible prosecution of the cases recommended for prosecution by the TRC, including the kidnapping, assault and murder of Nokuthula Aurelia Simelane.”

In the void of accountability the counter-revolution flourishes. The peaceful settlement was a sell-out devoid of justice, some argue. Reconciliation merely provided cover for those who profited from apartheid to launder their consciences and cling on to their ill-gotten gains. As long as the NPA does not do its work and hold some of the worst of apartheid’s criminals to account, our nation will be riven by those who divide us by untruths. And the Kallie Kriels of the world can argue that apartheid was not a crime against humanity.

“If you gaze long enough into the abyss, the abyss also gazes through you.”