Justice and constitutional development minister Michael Masutha is considering awarding parole to prisoners who provide information that helps the authorities locate missing political activists.
In an interview with Dispatch political editor Zine George, the minister said only about 100 of the 500 missing persons had been located by the National Prosecuting Authority’s missing persons task team.
Question: Why is there so much delay in recovering these missing bodies, 14 years after the formation of the missing persons task team?
Answer: Following the finality on the Ahmed Timol inquest, there had been a few proposed inquests. The trick on this thing is whether the TRC had been unable to unearth the truth about what happened up to this day, to the loved ones of many families.
What is your office doing about this?
There has been this quest to find another way to encourage other people who may have been perpetrators to open up and assist us in uncovering the truth. But obviously, nobody is going to come forward if they know this closure will mean acknowledging criminal liability. And some of them, especially those who were part of the security establishment of apartheid at the time, have become very old now. And they are dying out. Even if you were to convict them, chances are they won’t serve long sentences because by the time you send them to jail, you would have had a protracted prosecution. Within no time it would have expired so to speak. We are caught in this situation.
How far is the NPA with its project on missing persons?
The missing persons task team has been hard at work to piece together traces of the whereabouts of many missing persons. Some of the graves had been uncovered, and bodies exhumed and handed over for reburial.
The TRC identified about 500 bodies. We have barely scratched the surface, having gone into just over 100 so far. It is part of the reason we have started looking into the people who are serving term in our correctional facilities to grant them parole on the basis that they would assist in piecing together some of these missing pieces of the puzzle so that families could find closure.
Under those circumstances, you can imagine the difficulty we encounter with inquests which themselves do not bring finality, because all they do is establish what happened. Then you must decide whether you go ahead and prosecute, which is another long process. Or what other recourse do you take under the circumstances.
What are other thorny issues that your department has to deal with? I see child offenders and how they are treated in correctional facilities are of concern to your office.
We have secure care facilities that are run by social development. When you deal with problem children sometimes, it can be very challenging. You need specially trained people who can deal with children in trouble effectively. Certainly we don’t need children in prison, because prison conditions are really not conducive for children, especially if they are going to come into contact with adults for obvious reasons. Because you are going to expose them to harsh conditions which are going to obviously affect their character going forward, but equally you have those who need special facilities.
You are in the Eastern Cape as per an invite to a three-day international conference at the University of Fort Hare to celebrate Nelson Mandela’s legacy as he would have turned 100. How significant is Mandela’s centenary celebrations when celebrated at UFH’s Law School?
I am primarily here as per an invitation by the University of Fort Hare, the theme of which is accessing justice and the domestication of international human rights instruments in SA. Essentially, it was just a reflection on how international law has influenced the advancement of human rights in SA and how in particular we have internalised some of the values deriving from those international human rights instrument into our domestic law and practice. And I think it’s one of a series of activities to mark the 100 years of celebrating Tata Madiba’s legacy as an icon who himself sought to advance constitutionalism, the rule of law and the advancement of human rights which was the essence of the focus.
How relevant is this theme considering challenges facing our country?
Next year we will be completing the first quarter of a century since a new state was born, which in itself was a departure and breakaway from the erstwhile apartheid and colonial state. It was based on racial and gender-based discrimination, marginalisation and disempowerment that has seen a society such as ours, even up to this day, experiencing untold levels of inequality and poverty. Primarily on racial and even on gender (basis). I am saying at that juncture an opportunity presented itself to create a new state that was inclusive.
Fast forward, almost a 100 years later in 1994 that opportunity presented itself again and this time around as a people we seized the opportunity by making sure that we do not regurgitate the same errors that were made by the founders of the apartheid state, a colonial state back in 1910. We did this by creating a state that is inclusive , that’s based on the kind of values that our constitution especially as articulated in the preamble, and in the bill of rights.
Why 1910?
The year 1910 marked a series of constitutional, including legislative and policy, instruments that for the next century sowed systematic dis-infringement and exclusion. But further going forward, that no black person would own any land. And further on, as if that was not enough, in subsequent years a system of forced removals is then ensued that ensured that even those that occupied land, whether owning it or not, are forcefully removed from it. Land which would have been in locations that put them at an advantaged position to access opportunities that over a period of a century would have painted socioeconomic patterns in SA completely differently. You have that legacy of years of socio and economic marginalisation. By the way, the colonial state of 1910 concerned itself with the well-being of only 10% of the total population. Not only that. The Census of 1911 placed the total population of SA just below six million. So talking 10% of six million and fast forwarding to 1994, today we have close to 60-million which is 10 times the population we had in 1910.
What lessons should today’s generations learn from history?
That, if that state had to concern itself with 10% of six million, and come 1994 you have to concern yourself with 100 of the same population 10 times. Sometimes we are too hard on ourselves. Can we realistically say it was realistic to reverse the exclusion of nearly a century of 90% of the population and be able to effectively reverse that legacy in a quarter of a century? In respect of that 90% of the population that was excluded with the limited resources and all the odds against you because as a result of that century of exclusion, it also means that the potential resource capacity deriving from the 90% of the population will expose them to high quality education opportunities, and power bank so that they can meaningfully participate in the economy and had accumulated wealth over a century that would have made the entire state wealthier as a whole. And therefore you would have had that base to move from come 1994. All of that opportunity was lost. So for me as we reflect on 100 years, we also reflect on the century of struggle since the formation of ANC in 1912 and how that has culminated come 1994 and finally getting South Africa back on track. That is a country that is for everyone. But let us be realistic. A quarter of a century is too short a time to reverse a legacy of an entire century, put aside the 300 years that precedes that.
Why are the engagements at the three- day Fort Hare seminar so relevant?
We as government need to see whether our legislative and policy, and policy and practice have actually responded effectively to the direction that the courts have been giving us by way of closing gaps in our laws and our policies and practices to give greater effect to the constitution in juncture in the bill of rights, especially in socioeconomic issues. Institutions should start reflecting on the quality of training that they are offering to our students in preparation for the new invigorated that this new law seeks to create. We are doing some work in cleaning up legal services, because there has been a lot of pressure to brought to bear on some of our officials at the state attorney.
President Cyril Ramaphosa announced a few weeks ago that when he receives the recommended names of the citizens who are suitable to be national director of public prosecutions, he would bring those recommendations to your office for input. Has he contacted you?
The matter is still in the president’s court at this stage. So until the president has concluded his processes, I wouldn’t feature in the picture. It will be conferral as required. If he had conferred with me leading up to the appointment of the current acting NDPP Dr Silas Ramaite, I also envisage the same process will follow...