Justice before forgiveness, say families of apartheid victims

Has South Africa's truth commission the moral right to give killers amnesty, asks Robert Block. The widow of Steve Biko (right) says `No'

THE JOHANNESBURG television studio was seething with anger. Most of the audience were victims of apartheid and their families. They squirmed in their chairs, crossed and uncrossed their arms and legs, and scowled at a large TV monitor on which Archbishop Desmond Tutu talked about the need to forgive transgressors.

What agitated the audience at the pre-recording session on Wednesday was that Archbishop Tutu was not talking as the head of South Africa's Anglican Church, but in his capacity as the chairman of the country's Truth and Reconciliation Commission, the true object of their scorn.

No matter how much he appealed to them to give him and the commission a chance to exhume the past and uncover the truth, the audience was having none of it. What the people in the studio were demanding were justice and criminal trials, not semi-secret hearings by a body which would exonerate their victimisers for admitting to their misdeeds.

Whereas the Johannesburg audience could see Archbishop Tutu, he was in a studio nearly 1,000 miles away in Cape Town, and could not see them. But if this had been possible, one face in particular would have stood out. It belonged to a stately woman with a magnificent shock of teased gray hair. It was the face of Ntsiki Biko, the widow of Steve Biko - the murdered Black Consciousness leader and inspiration for books, films and songs. She sat in the front row, watching the monitor with an expression of disbelief and rage. If looks could kill, Archbishop Tutu would at least have been crippled.

Only moments earlier, she had stood before the cameras to tell the story of her husband's death. She recounted how he was arrested in August 1977 as a young healthy man; how he was beaten to the point of death by police officers unknown; how his limp but still living body was shackled and thrown naked into the back of a jeep and driven 700 miles to a Pretoria prison cell, where he was left to die. She talked about the difficulty of being a black woman in apartheid South Africa trying to raise two children on her own.

"There is a lot of talk about reconciliation," she said, "but I don't know who is supposed to be reconciled with whom. Is it the families of the victims who are supposed to be reconciled with the perpetrators of these crimes, or is it the government which is supposed to be reconciled with the perpetrators? What I want is for the proper course of justice to be done."

The morning after the recording session, she smiled when asked what she thought of the Nobel Peace Prize-winning cleric. "He used to be a widely respected man. It is only lately that that respect has started to go. If he is not careful, this commission is going to destroy him."

Today, almost 19 years after her husband's murder, Ntsiki Biko, a nurse aged 49, is undoubtedly the most prominent figure leading a crusade against Archbishop Tutu and the Truth and Reconciliation Commission.

This week, lawyers representing Mrs Biko and two other families of apartheid victims expect to file a case in South Africa's Constitutional Court, challenging the legality of the commission and the law which created it.

Their chances of success are slim because the act is a cornerstone of the new South Africa. It is based on the constitutionally entrenched principle of amnesty for both sides in the apartheid conflict.

In theory, at least, the commission's work is straightforward. Perpetrators of human rights violations between 1960 and 1993 are supposed to approach the commission to explain what they did. In return for "full disclosure" of their politically motivated crimes, an amnesty committee headed by a judge can absolve them from prosecution if it is considered appropriate.

While amnesty is not automatic, it is expected to be granted in most cases. A reparations committee will review victims' statements, which will be made available to the amnesty committee. It then has the power to decide on some kind of nominal reparation, which is not necessarily financial: it could be therapy for adults or scholarships for children.

But many groups have always viewed the commission with deep suspicion. Until now most attention has been focused on white reaction to the body, and on Afrikaner fears of a witch-hunt. But a much larger group of critics has been in the shadows: the victims and their families.

One such family is that of Churchill Mheli Mxenge. Churchill's brother Griffiths was a leading black civil rights lawyer in Durban whose talent at defending anti-apartheid activists made him the scourge of the apartheid security establishment. In early 1981, a security force officer and self- confessed murderer, Dirk Coetzee, was ordered to get rid of Mxenge and make it look like a robbery.

After some days of surveillance during which Mr Coetzee poisoned Mxenge's dogs, his men carried out their orders. They parked a truck along the road to their target's house and pretended to have engine trouble. After Mxenge stopped to help them, they stabbed him more than 40 times before slitting his throat. They then dumped the body outside a Durban soccer stadium.

Mr Coetzee confessed his role in the crime a few years ago, when he defected to join the African National Congress, and againduring the trial of a former colleague. Today he works in the new government's intelligence service, and has announced that he has applied to the truth commission's amnesty committee.

Churchill Mxenge feels cheated. He wants Mr Coetzee and the others prosecuted. In February last year he formed the Association for the Victims of Unsolved Apartheid Atrocities. He has joined Ntsiki Biko in the case being brought before the constitutional court.

What bothers Mr Mxenge most is that the politicians who drew up the act creating the truth commission had no mandate from the victims or their families. "Nobody consulted a single victim regarding the act that they passed. What they asked for was peace at all costs," he said.

It is not that Mr Mxenge and Mrs Biko are opposed to the principle of amnesty or reconciliation. They want the perpetrators of crimes to stand trial. If convicted, they say, it would be up to President Nelson Mandela to grant them amnesty, a move they would not oppose. What remains to be seen is whether the commission will tell some of the perpetrators of the worst abuses that the enormity of their crimes is beyond its ability to grant a pardon, thus opening the possibility of criminal prosecution.

But if Cyril Morolo has his way, we may never know the answer. Mr Morolo is the lawyer for the Mxenge and Biko families. If the constitutional court agrees to hear the case - and it is a long shot - he plans to seek an injunction preventing commission hearings until the court makes its ruling.

For the past three years Mr Morolo has shared an office, so to speak, with Steve Biko. Lining the top of his bookshelves in his Pretoria offices are 26 thick spiral-bound volumes, the transcripts of the 1978 inquest into Biko's murder. The inquiry, while exposing the brutal methods of the police, found that no one was to blame for his death.

"They are a constant reminder to me of the need for justice to be done," he said. "I have been trying to reopen the inquest for three years now, without any luck." The main problem has been money.

The basis of his case before the constitutional court is that the Promotion of National Unity and Reconciliation Act contravenes the right to seek justice in the courts, and a state's obligation to prosecute individuals guilty of gross abuses of human rights, violations of Geneva conventions and crimes against humanity.

Apartheid, he points out, was declared a crime against humanity by the United Nations General Assembly in 1973. "Why should the families of victims be deprived of their basic rights to seek justice and compensation?"

Kedibone Molema, senior female partner in his firm, agrees. "Reconciliation is fine, but only when it comes from the victims. This is coming from the state."

"In the name of political expediency," Mr Morolo adds, "the commission is papering over the cracks. You cannot legislate forgiveness. That must come from the ground up."