The 1993 interim Constitution, which laid the foundation for our new non-racial democracy, stated in its postamble that:
“The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
“These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.
“In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.”
The Promotion of National Unity and Reconciliation Act (1996) laid the basis for the granting of amnesty for politically motivated crimes provided that:
- The application complied with the requirements of the Act;
- The act, omission or offence to which the application related was an act associated with a political objective committed in the course of the conflicts of the past … and
- The applicant had made a full disclosure of all relevant facts.
In terms of this process De Kock was granted amnesty for some of the crimes for which he had been convicted. However, amnesty was refused in terms of other crimes that – in the opinion of the Amnesty Committee – did not comply with the above-mentioned requirements – particularly with the Act’s definition of acts associated with a political objective.
De Kock has served almost 20 years in prison for the crimes for which amnesty was refused. He has from time to time applied for parole, most recently last year. It is understood that the National Council for Corrective Services made a positive recommendation to the previous Minister of Justice, S’bu Ndebele. However, Ndebele failed to take a decision on the application before he left office earlier this year. In May, after an application by De Kock’s lawyers, the Pretoria High Court ordered the new Minister of Justice and Correctional Services, Michael Masutha, to make a decision on De Kock’s application within 30 working days. This morning, Minister Masutha announced that he had decided not to grant parole to De Kock because “none of the affected families of the victims were consulted” during the parole process.
Minister Masutha has given instructions for De Kock’s application for parole to be reconsidered within 12 months and after consultation has taken place with victims’ families. However, it is likely that De Kock’s lawyers will challenge the Minister’s decision in the courts.
In terms of Section 9(1) of the Constitution “everyone is equal before the law and has the right to equal protection under the law”. In the Foundation’s view, De Kock should be treated with exactly the same consideration as any other prisoner in similar circumstances – and that in the process due consideration should be given to the recommendations of the National Council on Correctional Services. The authorities should also take into consideration the postamble to the 1993 Constitution which states that issues arising from the conflicts of the past should be addressed “on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimization”.
Issued by the FW de Klerk Foundation
Photo credit: Wyoming_Jackrabbit / Foter /Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)
