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Plea bargaining hides too much

Eric Naki

Plea bargaining, as it is being applied, has turned our justice system upside down. No matter how they justify it, when the top apartheid security police and their former minister walk home with mere suspended sentences, it's really not on.

The fact that former minister Adriaan Vlok, former police chief Johann van der Merwe and three security policemen who tried to kill Frank Chikane by poisoning his clothes, entered the Pretoria high court through a back door, completed the nature of the "back-door justice" our country is experiencing.

The suspended sentences that are a result of the plea bargaining arrangement with the five, has left a lump in many people's throats.

The decision by the NPA to release the five men has thrown the country's justice system into confusion and made a mockery of the Truth and Reconciliation Commission hearings and its amnesty process.

The NPA took the decision, despite the fact that some political activists are servicing time for not applying for amnesty. Buyile Ronnie Blani, a former Addo Youth Congress activist, was imprisoned for a year in 2005 for a murder and robbery in June 1985. He skipped the country and returned from exile only to be arrested after failing to apply for amnesty.

Unlike Blani, Vlok and other apartheid hardliners walked away with mere suspended sentences after their first appearance in court. Instead of serving time in jail, they were granted suspended sentences - 10 years imprisonment suspended for five years for both Vlok and Van der Merwe, while former security branch officers, Chris Smith, Gert Otto and Manie van Staden received five years, also suspended for five.

They pleaded guilty to attempted murder, emanating from the lacing of Chikane's underwear with poison in 1989, or being part of a plot to kill him.

If the minister, who was in charge of the police who killed, maimed, poisoned and tortured freedom fighters and activists, and his police commissioner, the head of that police force that meted out atrocious acts against freedom-hungry black people, are allowed to go free, who then is to be prosecuted?

Let's say, plea bargaining was meant to let them tell all to the NPA, or an arrangement was made with them to spill the beans on their colleagues, is there a bigger fish to bait and catch than them?

Even the hopes that were raised that the two would implicate former president FW de Klerk in human rights abuses, were dashed. Who could be interested in seeing De Klerk in court alone, answering charges of apartheid atrocities, while his law minister and police chief are free men? It would be unfair to summon him while others are let off the hook.

De Klerk has already denied any involvement in human rights violations and refuted a claim by the jailed Eugene de Kock that he knew about the 1993 point-blank shooting of five sleeping teenagers in Mthatha, Eastern Cape. Even if the former president is hauled before court, the plea bargaining will let him off.

Yet, the Mpendulo family, whose twin boys and their friends were shot dead in the raid, are still waiting for answers about their children's deaths. The raiders were targeting Sigqibo Mpendulo, the father and a PAC activist when they attacked his home at Northcrest township. Alternatively they deliberately murdered the children to inflict psychological and emotional pain on their father for being a freedom fighter.

Against this backdrop, is it worth wasting time, energy and resources trying to pursue those from both sides - those who fought against apartheid and those who defended the system - by committing human rights abuses and not applying for amnesty?

The question that needs to be posed after last Friday's judgment is whether, at their ages of between 63 and 71, the five were likely to commit similar offences which would require them to be sent to jail, instead of suspended sentences. The answer is simply, no. Again it is a shame that our judges, who are supposed to be independent, are made to preside over and adjudicate on predetermined results. The credibility and dignity of our courts are at stake.

Azapo cannot be faulted for saying the NPA is repeating the farce of the TRC by "giving us meagre results from state expenditure".

"Azapo rejects the excuses of the NPA by agreeing to a plea bargain. The NPA has exhibited a corruption of purpose. It has failed our people. It is clear that our justice system had no intention of carrying out a credible prosecution. Instead, it has presented our people with hollow theatre," said Azapo spokesman Strike Thokoane yesterday.

He described the move as "travesty of justice and sacrificing of morals".

The TRC sold our people a hollow replica of justice. The fact that the apartheid perpetrators snubbed the TRC, led us to assume they would now be prosecuted and punished.

Fresh from its first central committee meeting after the recent national congress, the SACP said there was no comparison between the criminality of the apartheid regime and the liberation struggle.

Citing the UN declaration that apartheid was a crime against humanity and the TRC findings that gross human rights abuses were a systemic feature of apartheid, while the liberation movement had conducted a fundamentally just war, the SACP said: "As the post-TRC prosecutions process proceeds, we need an above-board process. Plea-bargaining must not be used as a new form of cover-up."

Justifiably so, the party condemned what it called "relatively weak political leadership in this entire process, particularly from the Justice Ministry.

"Neither our alliance forces nor the general public have been adequately enlightened about the broad objectives and character of the current judicial proceedings," it said.

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