As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Maharaj and Zille seems to forget that one of the founding values of the Constitution is that our society is based on the Rule of Law. Mr Maharaj’s statement is particularly troubling because he seems not to understand that in such a state based on the Rule of Law, everything can not and should not be sorted out by politicians.
“My concern with what is happening… is that what is a political problem is being shunted off to a bureaucracy to handle. The bureaucracy, no matter how much it is a legitimate State organ, is given the power to resolve matters behind closed doors, and even to the point where you and I will not know the truth. I don’t accept that,” he said.
The point is of course that in a democracy based on the Rule of Law, decisions on who should be prosecuted and who not must exactly be taken out of the political process and must be resolved by an independent body like the National Prosecuting Authority (NPA) to ensure that everyone is treated as equals before the law.
To argue that the NPA is just the bureaucracy and that the big boy politicians should sort out the mess, is to fundamentally misconstrue the nature of a Constitutional democracy. For once the Presidency has it right. Its Spokesperson points out that the politicians have already approved guidelines to be used by the NPA on who to prosecute and how not. These guidelines were approved by Parliament.
It is surely now for the NPA to apply these guidelines without fear or favour – that is without interference of the politicians.
Helen Zille’s statement is more ambivalent. A generous interpretation is that she meant to say that these guidelines had to be revisited by the politicians. Once the new guidelines have been approved, they should be applied without political interference.
Of course, Parliament can pass legislation to provide blanket amnesty or to make some other arrangement to deal with the matter – as long as the legislation conforms to the Constitution. But if it did so, it would undermine the Truth and Reconciliation process. It would let all those people off the hook who rejected the TRC process and would in effect therefore vindicate their rejection of the process.
This is not an easy question to resolve. It is clearly upsetting many people and thus we get statements that further prosecutions would undermine reconciliation. One part of me have sympathy with this view, but then I have to ask: how can we have reconciliation if we do not have an acknowledgment of the horrors of the past? For a mother whose son was tortured and murdered by the ironically named security forces and who still does not know what happened to her son and where he is buried, reconciliation must be a hollow word.
As always perhaps it is the elites that will reconcile with each other so that they can make obscene amounts of money and live happily ever after, while the foot soldiers on both sides will not taste the fruits of the half-baked reconciliation at all. Is there any other way?