FALLOUT from the past weeks De Klerk statements need to be seen within the context of equivocation by those responsible for apartheid. The Preamble to our Constitution makes it abundantly clear that the alpha and omega, the sine qua non for South African citizenship, adherence to our law, is ‘recognition of the injustice of the past’. Denying both the criminality and instrumentality of the apartheid regime is certainly deserving of the same punishment meted out to those who attempt to undermine the integrity and status of the Republic.
President Ramaphosa said as much in his response in the National Assembly. “Apartheid was immoral from its conception” and “so devastating in its execution that there no South African today that it is not touched by its legacy … I would even go as far as to say to deny this is treasonous”.
It remains to be seen whether or not De Klerk’s past apologia before the Truth Commission, at the face of it, an unequivocal recognition that apartheid was wrong and thus a submission which elicited forgiveness by all those affected, including amnesty from prosecution, will extend to his recent comments prevaricating and equivocating on the matter. This was followed by a rather sinuous and insincere retraction, as his foundation moved to withdraw statements essentially calling various UN resolutions,’ the work of Soviet Era agit prop’.
The ease with which the De Klerk Foundation was able to launch such an attack against fellow South Africans, whilst supporting the last white President under apartheid and his prevarication on the matter, begs the question as to what damages may be awarded any activists who seek to sue the Foundation on the behalf of the country?
Ayanda Mdluli of the Independent Group was moved to write: “Just like the Nazi at the Nuremberg trials after the Second World War, he must be brought to book, along with the many apartheid co-conspirators and perpetrators who were let off the hook by the Truth and Reconciliation Commission (TRC) in the early 90s”
De Klerk’s raising the subject of whether or not apartheid was a crime against humanity, is a stance which has elicited widespread condemnation. The least of which is that Desmond Tutu was moved to address the ‘appropriatness of the former President, debating the terribleness of apartheid’.
It is unclear whether or not De Klerk is able to claim parliamentary privilege as a former President, since his remarks are clearly defamatory and aimed at the anti-apartheid movement. Their wrongfulness may be demonstrated by the fact that not all opponents of apartheid were communists, nor are they necessarily doctrinaire socialists, for that matter.
Indeed the lessons of both the TRC and Nuremberg need to be learnt and studied. It was South Africa which first proposed an alternative to the Nuremberg process. Instead of bringing the perpetrators to immediate trial, they would initially be given an opportunity to come clean before a commission of inquiry, which rewarded those who appeared with amnesty while leaving it up to the justice system to punish those who did not.
In theory, the system worked if sufficient funds were made available to those wishing to pursue post-TRC prosecutions. Unfortunately, our government failed to create the necessary support services for those activists like myself, who were faced with an unenviable predicament — as it turned out, there were still agents of apartheid who clung to apartheid denial, who refused to appear before the commission, and who now proceeded to act with impunity.
Worse, the justice system itself was captured by apartheid denialists, those like Ton Vosloo, who had waged a campaign against the TRC from day one, and who had chosen to hide behind constitutional guarantees of a free press, whilst denying others the selfsame rights to speak.
Mdluli’s piece alludes to problems presented by the Naspers corporation, which until recently was merely an organ of the old National Party. I have written extensively about the Naspers-sponsored campaign against the TRC . Clearly it is not enough for our President to simply issue condemnation after condemnation, without taking practical steps against persons like De Klerk, who have sought to capture both the organs of state, and our judiciary under the pretence of national reconciliation.
It cannot be that apartheid denial is the order of the day, nor that any court is allowed to defenestrate both our Preamble, and transitional justice system which created the Constitution. Bear in mind, that it was the TRC Act of 1993, and thus the TRC itself which was a necessary pre-condition for the Constitutional Assembly to create our Constitution in 1996.
Again it needs to be stated, that any courtroom wishing to overturn the 1973 UN Convention on the Crime of Apartheid, would be subverting not only the international justice system, but the justice system created by the will of the people.
I therefore have no hesitation in condemning the blatantly irresponsible and perfidious decisions handed down in Lewis v Media24 (2010) and Lewis v Legal Aid South Africa (2019) and issued in favour of apartheid functionaries .
The people of South Africa deserve better than apartheid denial from our justice system.