Post-conflict South Africa has become an unwanted orphan of International Criminal Law. Those who committed war crimes and crimes against humanity, torture, extra judicial killings, mass removals and other gross violations of human rights under apartheid have escaped with impunity both inside and outside South Africa. This article analyses how this happened and how the unfinished business will continue to bedevil the South African body-politic after Mandela. Down the road, this festering injustice will come to a head. In the future, South Africa will explode into a racial Armageddon unless the crimes committed under apartheid are addressed following the recommendations of the Truth and Reconciliation Commission (TRC) that was the handwork of Nelson Mandela.

THE FALSE PREDICTIONS

Looking backwards from 2013 and assessing the history of South Africa after Mandela’s death, discloses that South Africa has had an ironical trajectory. Almost whatever had been predicted as would happen after the demise of South Africa never happened. Nadine Gordimer, a famous South African novelist in her novel July’s People had predicted that after the Revolution, white people would be hunted like dogs and killed. The Pan –Africanist Congress which broke away from the African National Congress in 1959 predicted that whites would be driven into the sea and proclaimed that the only good white man was a dead one. The African National Congress predicted that all those who committed war crimes and crimes against humanity would be prosecuted en mass along the lines of the Nuremberg precedent. In fact the ANC analogized apartheid to Nazism and that identification served them well. The ruling Nationalist Party created apartheid in 1948, right on the heels of the ideology of the collapsed Nazi Germany which had unleashed the Jewish extermination resulting in the Nuremberg precedent where those who have committed war crimes and crimes against humanity and peace were prosecuted, literally setting the genesis of the modern international criminal law of prosecutions. The National Party envisaged the defeat of what they called black communist terrorism and anti-Calvinist religious ethos. The whites in South Africa feared that the ANC would introduce communism.

The world expected a bloody revolution in South Africa. White exodus was predicted along with the collapse of that economic miracle in a continent of misery.

THE BONAPARTIST STATE OF SOUTH AFRICA

Ironically almost the opposite happened to everything that had been predicted and feared. There was no revolution, let alone a bloody one. The National Party became too weak to maintain its outright hegemony and the African National Congress and allied parties never became strong enough to overwhelm the apartheid government. There developed what Frederick Engels in his book ‘Dialectics of Nature’ called the interpenetration of opposites where what was expected, was replaced by its very opposite resulting in a synthesis of what Karl Marx called the Bonapartist state but without Louis Bonaparte, but instead a Nelson Mandela. Bonapartism is a state of equilibrium, a state of compromise. Because of the approximation in the equality of forces, a stalemate was reached. The result was that while the National Party wanted absolute amnesty for all those who may have committed the crime of apartheid and the African National Congress wanted wholesale prosecutions of those who had committed the crime of apartheid, both could not force the other to adopt their position because of each party’s relative weakness leading to the compromise of the conditional amnesty where all those who would wholly and truthfully confess to their crimes, would be given immunity from civil and criminal prosecutions. Those who did not come forward would be prosecuted.

CAN TRUTH BE RECONCILED WITHOUT JUSTICE?

The Truth and Reconciliation Commission was the vehicle through which this process of truth gathering and confessions would be managed. The Commission recommended the prosecution of hundreds of people, but not one was or has ever been prosecuted for the pure crime of apartheid as defined in the only international criminal convention that is named to depict the very practices of the regime, namely The International Convention on the Suppression and Punishment of Apartheid (1973). The reason is that this commission was working under the enabling legislation which stripped apartheid from its criminal anchor and only criminalized practices that were themselves criminal under the apartheid government, e.g. murder, conspiracy and so on but not practices which made apartheid a crime under international criminal law, for example the commission of war crimes in Namibia, Angola, Mozambique, Zambia, England ; forced mass removals, torture, extensive extra judicial killings and disappearances, other crimes against humanity and massive human rights violations. The aforementioned compromise was responsible for the lack of prosecutions involving the pure crime of apartheid.

Given the lack of prosecutions in South Africa, could there be other avenues to achieve the same goal, that is to ensure that apartheid criminals do not enjoy impunity into perpetuity? That is, apartheid criminals should be exposed to prosecutions just like Nazi War criminals, Rwandese criminals and others have been subjected to.

Various options have been examined: reparations for the victims. The Reparations policy has not been implemented by the post-apartheid government. The Post apartheid government has given the explanation that the Truth and Reconciliation Commission process was accountability enough.
A group called Khulumani had taken the reparations struggle outside its borders to the US using the ancient Alien and Tort Act of 1789. Justice Sheindlin, of the “Stop and Frisk” class action law suit fame, had given the Khulumani apartheid law suit green light to proceed but the appeal courts shot it down. Class action law suits of that nature therefore have to be fought within their national boundaries.

Another avenue that is the possible is the use of an international tribunal along the lines of the current international or hybrid tribunals of Former Yugoslavia, Rwanda and other countries. However, it has to be concluded that having not prosecuted apartheid criminals in South Africa, the same government would not now surrender its sovereignty to an international tribunal. Victims of the crime of apartheid therefore continue to have no avenue to ventilate their grievances. Apartheid criminals continue to enjoy their impunity.
The International Criminal Court does not have jurisdiction over the crime of apartheid because the crimes happened before the court was created in 1998. It is almost like slavery where the succeeding generations of the beneficiaries of slavery have stated that the statute of limitations has expired. The crime of apartheid is too fresh for anyone to plead this, but time is running out.

CANADA’S EXAMPLE

Could universal jurisdiction be the answer? That is where Canada comes in because Canada has been a leading country in establishing a legislative and international framework for the prosecution of war criminals and it has prosecuted or attempted to prosecute war crimes that happened in other countries.

Canada could have prosecuted apartheid criminals during apartheid. In 1986 Canada came up with the requisite legislation to prosecute war crimes that happened elsewhere. Economic sanctions during apartheid were a useful measure of retribution against apartheid.

No country has exercised universal jurisdiction to prosecute apartheid criminals. The excuse is that Mandela designed the compromise system and it should not be disturbed. Apartheid was a perfect crime crying out for prosecution both through the exercise of domestic jurisdiction and universal jurisdiction, remains unprosecuted. It is indeed an unwanted orphan of both national and international criminal law and justice, with dire consequences in the future because of the unfinished business of reparations and prosecutions. In future Mandela’s legacy may very well be judged by the measure of justice he bestowed on South Africa.

*Munyonzwe Hamalengwa’s (Dr) has been practising law in Canada for twenty-four years

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