IT IS mind-boggling that there should even be a possibility that either Eugene de Kock or Schabir Shaik might yet be pardoned by President Jacob Zuma .
The rumour mill alleges that if De Kock is pardoned by Zuma, it would make it easier for him to pardon Shaik also. This theory is flawed. Not only has there been no indication from the Presidency that a pardon for De Kock is on the cards, but the notion of a trade- off makes little sense.
For one thing, the categories of crimes committed by De Kock and Shaik respectively are so different that such a trade-off would be blatantly random. Such randomness would betray the lack of rationality in the trade-off and overzealous opponents of Zuma might see a narrow legal opportunity to challenge the administrative justness of the way in which his discretion had been exercised.
For another, it is not clear that there is a pro-De Kock constituency that exists somewhere out there that possesses so much political clout that it needs to be shut up to prevent a fallout should Shaik be pardoned. Quite frankly, if Zuma wanted to pardon Shaik, despite public sentiment to the contrary, he could do so without the help of an irrelevant De Kock or dated racist minorities.
The real question is a much more basic one. Are there good independent reasons to pardon either of these convicted criminals? The answer to this is a definitive “No”.
De Kock was granted a partial amnesty by the Truth and Reconciliation Commission (TRC). A partial amnesty implies that he was judged not to have disclosed his knowledge of, and involvement in, political crimes fully. This opened the way for a lengthy criminal trial in which he was found guilty of human rights abuses, including the murder of at least six people.
He kept watch over the killing of innocent South Africans regarded as enemies of the apartheid state, of which De Kock was a central figure. Some were first killed before being burnt, incinerated, or even blown up to ensure that no scrap of evidence was left. Pardoning such an evil character would be a gross mistake.
One criticism that has been lodged against the TRC process is that retributive justice was too hastily sacrificed on the altar of forgiveness and in the fake name of restoring intergroup relationships.
While it is true that restorative justice during the transition to democracy was widely supported by many South Africans, the deal was clear: amnesty and forgiveness were to be exchanged for full disclosure. Since De Kock did not fully disclose his knowledge of political crimes, the law had then to take its course.
To pardon him now would simply undermine the point of the amnesty hearings and the conditions for being granted a full amnesty.
Restorative justice is a fragile notion. That fragility would give way to breaking point if apartheid actors who did not fully co-operate with the TRC process should be pardoned.
It is also a mistake to think of De Kock as a mere cog in the apartheid wheel. Some have argued that one man should not get all the blame for an entire system that was evil. He was following orders. And, at any rate, many others also followed orders but are now roaming the streets as free men and women. Indeed, many of the political masters to which De Kock was accountable are arguably as morally culpable, yet remain free citizens.
This argument is not totally unconvincing. There is something intuitively unfair about only one evildoer being bust while others get off free. But multiple wrongs do not add up to a justified pardon. If there are people who had committed political crimes but were not granted amnesty then they should be prosecuted. That debate cannot be regarded as settled.
Perhaps most importantly, we need to think more carefully about the relationship between institutions and system, on the one hand, and individual agency on the other.
Of course the apartheid system was evil, but many thousands of sane people chose to execute the evil instructions of their bosses. For this they are responsible. To simply excuse it all away as a “systems failure”, rather than irresponsible choices by ordinary people, is disingenuous.
Certainly, many ordinary people were brainwashed and coerced. But De Kock was not assessed as mentally unfit to stand trial. He appreciated the nature of the acts he committed at the time when he committed them.
He is thus fully culpable and cannot be morally discounted because of the evil system within which he operated. He ought to have resisted that system. He did not and 212 years behind bars is a fitting reward.
Shaik, on the other hand, is not a convicted murderer. He is a convicted fraudster. Comparing violent crime with economic crime is pointless. It might be tempting to regard economic crime as serious but less serious than violent crime. This would be a mistake. Both undermine the fabric of society.
It is particularly important for a developing country to be seen to take a tough stand on corruption. Life in the first instance depends on our material wellbeing. Without food or water, you cannot survive. Economic crimes result in the looting of resources that otherwise would be spent on developing a country. There is a clear correlation between high levels of economic crime and poor standards of living and low life expectancy. Kleptocracy in post-independence Africa provides ample proof. It is therefore extremely important that fraud be rooted out by jailing offenders who do not play by the rules.
Shaik is one such offender.
The matter is made worse by the fact that his fraud stems from a relationship with Zuma. This makes it even more important that he does not get pardoned. Pardoning him would send an unambiguous message that those with friends in high political places can get away with economic crime. It will thereby also constitute an incentive for others to commit economic crime by courting politicians.
Furthermore, there are facts particular to the Shaik case that militate against a pardon. Shaik has been caught failing to comply with his medical parole conditions. This means that not only is Shaik someone who is legally proven to disregard the law, but he is now proven to be willing to disregard the law even after he had been given a reprieve.
Failure to comply with all the medical parole conditions amounts to a brazen arrogance that is no doubt founded in the belief that he is politically untouchable because of the Zuma connection. In this context, the president needs to signal that he is not enslaved by the friendship with his former financial adviser. That can only be achieved by making it clear that a pardon is not on the cards.
Pardons should never be granted lightly. If a conviction resulted from a legal error, for example, then a pardon may be sensible. But where someone is an unrepentant extraordinary criminal (De Kock) or a common criminal (Shaik), then a pardon would be an insult to the millions of law-abiding citizens struggling to make it by playing fair.
Do the right thing, Mr President.
[ This article first appeared in Business Day
http://www.businessday.co.za/articles/Content.aspx?id=91126 ]
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I can't agree more. It reminds me the pardon that was given to Wit Wolf Barend Strydom, when Macbride was released.
ReplyDeleteI don't like Macbride, but using the Norgaard princeples there is a case to be made that his was a political crime. Strydom should have rotted in jail.
One thing though. You and many in the press make a mistake when you say that "De Kock was granted partial amnesty by the Truth and Reconciliation Commission (TRC). A partial amnesty implies that he was judged not to have disclosed his knowledge of, and involvement in, political crimes fully. This opened the way for a lenthy criminal trial..."
De Kock fully cooperated with the TRC, We visited him many times and he sang like a canary. The problem was that De Kock, like most security branch members were prosecuted in the old South Africa, by Transvaal PG Jan D'Oliviera. And the crime of the 6 people you mention happend in September 1992 AFTER Die Vryeweekblad had exposed Vlakplaas.
It had no political motive whatsover and was a plain case of corrption. The 6 occupents of the taxi were not involved in politics whatsoever. It would seem that De Kock and his unit had already seen the writing on the wall and were just out to make a quick buck before apartheid ended.
De Kock got amnesty as far as I can remember for all his political crimes. But the one that mattered - because he had already been convicted for it - was not deemed political.
For more stories on the TRC read this post of mine.
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