Secrecy provisions within draft legislation for a commission to investigate human rights violations during South African liberation struggle have met strong criticism from non-governmental organisations and the families of some of the victims. Journalists’ and media freedom organisations are amongst those opposed to the bill, both because of the draft law’s secrecy clauses, but also […]
Secrecy provisions within draft legislation for a commission to
investigate human rights violations during South African
liberation struggle have met strong criticism from
non-governmental organisations and the families of some of the
victims.
Journalists’ and media freedom organisations are amongst those
opposed to the bill, both because of the draft law’s secrecy
clauses, but also because they fear that search and seizure
provisions in the act could be used against the media.
Section 24 b) of the draft Promotion of National Unity and
Reconciliation Bill allows the commission to hold hearings in
camera “in the interests of the state or of good public order, or
of public morals.” Section 24 c) also allows for evidence to be
given in camera if witnesses were in danger as a result of their
testimonies.
Section 15 (2b) of the draft bill states that all hearings into
the application for and the granting of amnesties will be held in
secret. Meanwhile, section 28 (1) permits the seizure of any
“book, document, file, object or writing,” and Section 30 (1)
obliges anyone questioned and/or subpoenaed to give evidence by
the Commission to answer questions put to them, “notwithstanding
the fact that his or her answer may incriminate him or her, or
expose him or her to any liability.”
“Since the intention of the draft Bill is to withhold a good deal
of… information, our society will not be able to draw on the
lessons from our bleak past in order to formulate better values
for the future,” says the South African Freedom of Expression
Institute (FXI) in its submission to the Portfolio Committee on
Justice (parliamentary sub-committee), which is currently
discussing the draft bill.
“Instead, the draft Bill now seems to have as its objective the
creation of an administrative mechanism by which alleged human
rights abusers can escape the judgement of the courts and without
realising the aims of national reconciliation. It has been argued
by many alleged human rights abusers that their actions were
perpetrated in the interest of the State, and therefore its
citizens. Therefore, the citizenry has a right to know what
actions were undertaken in its name,” adds the FXI, which — like
other South African NGOs — believes the draft bill would be in
breach of the country’s interim constitution, which requires
state institutions to be open and transparent.
The FXI also points out that the search and seizure provisions of
the draft law could be used to compel journalists to reveal their
sources of information, and to allow the authorities to enter
newsrooms, and to take away documents.
“It is an internationally accepted editorial principle that
journalists have an obligation to protect their sources so as not
to undermine their credibility with the public,” argues the FXI.
“Furthermore, the secrecy provisions (of the draft bill) will
place an impossible burden of secrecy on journalists, who will
not know which documents (before the commission) are
classified…. The classification of documents may lead to
journalists and editors practising self-censorship….”
As it stands, anyone who breaks the law would be liable to a
fine, or imprisonment for up to two years.
The FXI also objects to section 5 (2a) of the draft bill, which
says members of the Commission shall be appointed by the
President. “The public should have the right to nominate such
officials, and should also have the right to scrutinise
prospective candidates to determine their suitability for public
office,” says the FXI in its submission.
The issue of amnesty and the “Truth Commission” is a highly
explosive one for South Africa’s government of national unity.
Late last year it was revealed that 3,500 members of the former
regime and its security forces — including two cabinet ministers
— had applied for amnesty shortly before South Africa’s first
democratic elections in April 1994.
The majority African National Congress (ANC) denied it had made a
pact with the former ruling National Party (which is also part of
the coalition government) to grant these amnesties. However, the
ANC is under pressure from both the National Party and members of
the former security forces to compromise on the Truth Commission.
Deputy-President and National Party leader F.W. de Klerk warned
last year that the Truth Commission could split the government of
national unity if handled insensitively.
On January 13 this year, the daily “Business Day” reported that
the ANC had “softened its stance” and that only “gross human
rights violators” would be named and prosecuted as a result of
findings of the Truth Commission. “Business Day” also reported
that National Party Justice spokesperson Danie Schutte had
thanked the ANC for its “more low-key approach.” “There have been
major movements to avoid a witch-hunt,” Schutte was quoted as
saying.
On 6 February, General Constand Viljoen, former head of the South
African army and leader of the white minority Freedom Front, told
the portfolio committee that only the holding of secret amnesty
hearings would convince Afrikaaners that the Truth Commission was
in the spirit of reconciliation and not retaliation,
“Business Day” reported in its 7 February edition that Gen.
Viljoen told the parliamentary committee that leaders should
accept collective accountability for the actions of their
supporters. The General also offered to take full responsibility
for the actions of the South African Defence Force up until 1985.
The Inkatha Freedom Party opposes the setting up a Truth
Commission altogether, as it “does not believe that it is the
business of government to ascertain, manufacture and propagate
historical truths.” Meanwhile, police and military officials have
threatened to expose its former under-cover agents within the
ANC, some of whom are said now to hold senior party and
government posts.
In early February, 20 non-governmental organisations — including
Amnesty International, the Bar Council of South Africa, Lawyers
for Human Rights — came out in opposition to the draft Truth
Commission bill. “It is of paramount concern to the human rights
community that — despite the government’s promises of
transparency and accountability — the proceedings of the
committee of the truth commission which will be hearing
applications for amnesty is entirely secret,” the NGOs said in a
joint statement issued on 1 February, “The Citizen” reported on 2
February.
“Secrecy is the enemy of truth,” the statement continued. “We are
of the opinion that the secrecy of the proceedings is contrary to
various provisions in the Bill of Rights in our constitution and
violates the rights of victims and survivors.”
Families of victims of human rights abuses have also criticised
the draft bill. “We need to know before we can forget,” Sylvia
Jele, mother of a student leader murdered in 1988, was quoted as
saying in “The Star” on 2 February.
Justice Minister Dullah Omar has been ambiguous on the subject of
Truth Commission secrecy, and has distinguished between secret
and “in camera” hearings; it is thought the latter would be open
to victims and their relatives. “The Star” on 2 February said
Omar had admitted that the draft bill might be unconstitutional.
No date has yet been set for the draft law and the
recommendations of the parliamentary committee to be debated by
parliament.
Recommended Action
Write to South Africa’s Minister of Justice:
Commission, but condemning the draft bill’s provision for secret
hearings. Point out that closed-door proceedings should be the
clearly-defined exception, not the rule, and as it stands, the
draft bill was in breach of the spirit — if not he letter — of
the South African constitution.
Commission to search for and seize documents, as well as to
compel witnesses to give evidence, and that these powers could be
used to force journalists to reveal their sources. Point out that
it is internationally accepted that journalists should not be
forced to reveal their sources of information, and that the bill
some countries have enshrined in law.
Truth Commission, including the appointment of Commissioners, who
and chose through a process of public hearings.
Appeals To
Honourable Dullah Omar
Minister of Justice
Private Bag X256
Cape town 8000
South Africa
Tel. +27 21 457 506/7
Fax. +27 21 452 783
COPIES TO:
The Chairperson
Portfolio Committee on Justice
PO Box 15
Cape Town 8000
South Africa
Tel. +27 21 403 2809
Fax +27 21 461 0462
FXI
PO Box 261096
Excom 2023
South Africa
Fax +27 11 403 8309
