South Africa buries its past

Disputes over moral and criminal guilt for the brutalities of apartheid are testing the country's quest for reconciliation. Meanwhile the victims' families wait for justice.

The heinous confessions of five senior security policemen - including a colonel and a brigadier - to involvement in 40 apartheid-era murders and atrocities was this week billed as the Truth and Reconciliation Commission's greatest coup since it began public hearings seven months ago.

Plagued with complaints that initial concentration on victims' stories had reduced its hearings to a national therapy session, the commission was delighted with the application for amnesty from the most senior police officers yet to have approached it, in return for information that would lay bare the brutality and immorality of the old regime

The men, convinced they had been hung out to dry by National Party politicians, had to convince the commission that their crimes were politically motivated to qualify for amnesty. Their lawyer promised that their testimony would blow the lid off some of the apartheid era's highest profile unsolved murder cases, implicate former ministers and even give the commission the ammunition it needed to do something many think long overdue - subpoena the former state president PW Botha.

Before the hearing, Alex Boraine, the commission's deputy chairman, charged with uncovering the truth about South Africa's apartheid past and forging a healing path forward, forecast: "This is the starting of a river that is going to become a flood."

On Monday, the flood started in a way Mr Boraine had not anticipated. General Johan van der Merwe, former police commissioner, subpoenaed to give evidence in support of the five, surprised everyone by volunteering that Botha had personally ordered the bombing of a church headquarters in 1988 and then announced he, too, would be seeking amnesty. He advised all his former officers to follow suit. The old South African police force's resistance has finally begun to crumble.

The breakthrough for the commission, a cornerstone of South Africa's negotiated transfer of power, comes at a crucial time. Although it has the weight of an Act of Parliament behind it, its work has been plagued by the criminal courts.

On Friday, state prosecutors who had been investigating the commission's star witnesses for more than two years put down the latest obstacles. After the commission released the names of the five men, the Transvaal's attorney-general, Jan d'Oliviera, ordered the arrest of two of them on murder charges. On Monday he went further, opposing attempts by the men's lawyer to subpoena witnesses in pending state prosecutions to appear before the commission.

Nothing illustrates so clearly South Africa's inability to make up its mind about how to deal with the past as the commission and courts' battle over perpetrators. Two years after the negotiated peace, a schizophrenia prevails over the relative value of justice and truth, and punishment and forgiveness.

Yesterday's debacle was round two of a fight that began 10 days ago with the acquittal of the former defence minister Magnus Malan and a handful of former South African National Defence Force generals of the murder of 13 people - mainly women and children - during a prayer meeting in a village south of Durban in 1987.

The controversial prosecution tried to establish a chain of guilt between Malan-the-minister, the generals and officers under his command and six members of the Zulu Inkatha Freedom Party, who allegedly carried out the massacre when they called at the home of Victor Nbusi, an ANC sympathiser.

Nbusi was not home but they opened fire on the house with their AK47s anyway. The case went to the heart of the National Party's cynical exploitation of the war between the IFP and the ANC in KwaZulu-Natal in the late Eighties as the edifice of apartheid began to crumble. It focused on the secret training of an IFP paramilitary force by South African armed forces.

But it petered into nothingness on the steps of Durban Supreme Court when a grinning General Malan, one of the great hate figures in the old regime, emerged to declare the verdict a triumph for South African justice. The judge had rejected the evidence of the state's three main witnesses as unreliable, and said that secret security documents did not prove a conspiracy to murder or that Malan and co did anything illegal in training an IFP paramilitary force. All the accused walked free.

The failure of a seven-month trial, costing 7 million rand, set off a welter of angry exchanges between the commission and court supporters. Many South Africans were bewildered by the failure - none more so than Anna Ntuli, who lost three daughters and her husband in the KwaMakutha massacre.

As Malan professed his Christianity and offered his condolences to the families of victims, Mrs Ntuli, a small, round, black woman, stood quietly in a corner of the court. While the cameras clicked whirled around Malan, she tried in faltering English to express the injustice. But as the tears began to flow she switched to her native Zulu. You did not have to know the language to feel her passion. "My children and husband died and yet it seems no one killed them," she said.

Why the Malan prosecution failed has obsessed the media ever since. For Mrs Ntuli's son, Mbusi, 24, it was simple. Tim McNally, the KwaZulu-Natal attorney-general, only brought the case under pressure from the ANC and his heart had never been in it. And the courts, Mbusi Ntuli insisted, did not want to convict. "This is justice in South Africa. It has always been like this and the judiciary are the same old people."

Officials in the justice department sympathise. "I suppose we are asking the old regime to judge itself," says one. "We are transforming the judiciary but it will never be completed in time to affect this process."

Those who covered the trial judged the evidence weak. It was always going to be difficult to prove to the exacting standards demanded by a court the trail of guilt linking the accused.

But for the commission the real flaw was very basic. Archbishop Desmond Tutu, the commission's chairman, said the Malan verdict proved the commission should be left to deal with South Africa's past. There was a difference, he said, between legal acquittal and moral innocence.

The two sides agree on one thing: the failure of the Malan trial reduced the pressure on those guilty of gross human rights violations. Despite the hostility between the courts and commission, the latter's effectiveness depends on the courts acting as stick to its carrot.

If a perpetrator does not approach the commission by 15 December he faces the possibility of criminal proceedings. If, however, he goes to the commission and can prove his atrocities were political motivated, he will almost certainly be granted amnesty.

No civil or criminal proceedings can follow. After Malan the court option seems less threatening.

"It is going to be harder to compel people to go to the Truth Commission," admits one government official who sympathises with the attorney-generals and points out that the conviction last month of Eugene de Kock, self- confessed state assassin, of 89 charges including six murders was partly responsible for the five policemen seeking amnesty.

"Guilt - particularly at the highest levels - is hard to prove. Tons of incriminating documents have been shredded, and despite our instructions this may still be going on. After a failed 7 million rand trial it will be a brave attorney-general who tried to go for those at the top again."

And those once at the top know that. They know a weakness when they see one.

Rubbing salt in Mrs Ntuli's wounds, Malan and his co-accused have not skulked off into grateful retirement since acquittal. Even on the steps of the court they were advising servicemen who felt the net closing in to opt for the courts, not the commission.

A relaxed and smiling Malan has since given a seaside interview to the Afrikaans press in which he promised to "return to look after my people".

He and his generals are now setting up an office in Pretoria offering advice to those who once served under them. This must chill hearts in the commission which is at last making an impact on the police but has yet even to dent the ranks of the old armed forces.

The Malan trial failure has not blunted d'Oliviera's purpose. And while conspiracy theories abound about the attorney-generals' motive - some claim they are tainted with the old order and prosecute because they know they will fail and that the truth will never emerge - supporters argue they are the country's last true defenders of justice. Men guilty of the grossest crimes - including this week's five-star witnesses - are using the commission to escape promising prosecutions, it is argued.

The commission meanwhile continues with its quasi-religious preoccupation with confession, truth and forgiveness, and a fresh beginning for the country and its citizens, even those who were murdered and maimed. It argues that new South Africa lacks the time and money for wholesale criminal prosecution.

Nuremberg-style trials, argues Mr Boraine, would have reached too few perpetrators and the demonising of a small group would allow the population to shirk collective responsibility for apartheid. "We want to hold a mirror up to this nation," he says. "It was not just a few people. A lot of people connived with the system, hid behind it and voted for it."

The commission's revelations - like this week's allegations about Mr Botha - may seem a little pedestrian to Europeans who have long believed the old regime capable of anything. But white South Africans are more resistant to the uncomfortable truth. The commission hearings remain largely black business. Few whites attend.

At the end of its two-year life, the commission must produce an official version of the apartheid years. It has a greater chance of being accepted as truth by the majority if it is based on the evidence of perpetrators from the highest echelons of government to the lowest ranks. Such a foundation would provide the country with its best chance of moving on.

But there is another hard fact. A negotiated peace involved political compromise and horse-trading between the National Party and the ANC. There was no victor. War trials would have been politically impossible. The black consciousness Pan Africanist Congress wastes its breathe by calling for the old NP cabinet to be rounded up and tried.

While the commission's arguments are all very rational, emotionally they seem lacking. In a new book, Reconciliation Through Truth, which champions truth before retributive justice, government minister Kader Asmal, writes: "South Africa needs to grasp its past in a way that soars above the banalities and caprice of criminal process." That's a hard message for the Mrs Ntulis of this world who suffered for apartheid but believed justice would be theirs in the new South Africa.

Mr Boraine is painfully honest. Truth, not justice, is the best the new South Africa can offer. Many, like Mrs Ntuli, still do not understand that.

Hearings are still full of people who believe the commission has rolled into town to take away the guilty men. Once again, says Mr Boraine, people who have paid a high price for the new free democratic South Africa are being asked to pay some more for the general good.