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Historical accountability for rights abuses in South Africa

South Africa's experience is in many ways different from that of the Latin American countries. In particular, it is distinguished from them (with the possible exception of Chile) by the level to which the forms of the rule of law have been preserved throughout its history. The existence of democracy among the white population has meant that some official avenues of political pressure have remained open for use by liberal white members of parliament to criticize the most egregious abuses; a relatively independent judiciary has been able and willing on some occasions to embarrass the government by frustrating its attempts to restrict rights, overturning restrictive regulations, or ordering the release of detainees,20 commissions of inquiry have on occasion been appointed to investigate gross abuses of power; compensation has occasionally been awarded to victims of government action for the abuse of their rights;21 monitoring of government action by press and non-governmental organizations has continued despite efforts at censorship and harassment; and international pressure fueled by the world-wide anti-apartheid movement has ensured that the South African government has been the subject of unprecedented external examination. None of this was true to the same extent in the case of any Latin American country.

While an improvement on the most repressive periods of Argentine or Chilean history, the level of accountability of the government and security forces should not be exaggerated. South Africa's history is full of examples of the failure of the courts to challenge government policy on human rights grounds; moreover, the courts are limited by the system of parliamentary supremacy and the lack of a bill of rights against which to measure legislation. During the emergency of the mid-1980s even those applications to the lower courts that were successful were often rejected by the Appellate Division of the Supreme Court (the South African court system's highest court of appeal), which was notoriously unwilling to challenge government action. Commissions of inquiry, such as that established under Justice Louis Harms into the operation of security force hit squads, have been severely criticized for favoring the government's position. In addition, there have been persistent allegations of covert government support for groups involved in incitement of violence within the black population, for which responsibility has consistently and unconvincingly been denied by the government, in a fashion reminiscent of the disappearances in Latin America.

Moreover, the sheer level of abuse of power could not possibly be addressed by the small number of human rights lawyers and activists in a position to take on such work. There have, for example, been almost 25,000 detentions under the general law since 1963, while approximately 54,000 people were detained under the emergency regulations in effect between 1985 and 1990; a large number of these were abused at some point during detention. It was impossible for the vast majority to obtain legal representation, even if the courts had been willing to give an impartial hearing to every application for relief. It is certainly not the case that the rule of law has applied to all, or that all or even a significant number of those guilty of the worst abuses have been held accountable.

Amongst the most egregious abuses for which no accountability has even been considered are those committed in the name of apartheid, in accordance with the forms of South African law: in particular, the forced removals and deprivation of citizenship rights that were the foundations of the structure of grand apartheid. Less serious but important violations of internationally recognized human rights standards included widespread censorship; systematic discrimination in the supply of all services, especially the administration of justice; and severe restrictions on freedom of movement, association and assembly. Other abuses, illegal under South African law but for which the perpetrators have never been brought to justice, include numerous cases of torture in detention,22 the operation of government-supported hit-squads,23 and a long series of massacres carried out by members of the security forces.24 In some cases junior members of the police or army have been brought to account, but those responsible at the highest levels for the policies leading to abuse have never been touched. An official culture has tolerated extreme violence in the enforcement of legislation which is itself illegitimate under international law.



20 There is no parallel in South Africa to the rejection of nearly 9,000 (and acceptance of 30) habeas corpus applications made to the Chilean courts in Santiago alone during the dictatorship of Pinochet.

21 For example, to the residents of the village of Nkqonkqweni, forcibly incorporated into Ciskei, who in February 1991 obtained an award of R.500,000 ($200,000) from the South African government in compensation for damage to their homes caused by the Ciskei government. In litigation for damages for police brutality, settlement out of court is reasonably common, and awards in court not unknown, although for relatively insignificant sums.

22 As revealed most dramatically by the information concerning deaths in detention published in August 1992 by Doctor Jonathan Gluckman, a pathologist who carried out autopsies for the police. On August 31, 1992, a police spokesman stated that 178 people had died in police detention during the period January 1, 1991 to that date.

23 Although investigated by the Harms Commission, following the assassination of Johannesburg academic David Webster in 1989, the Commission declined to hold senior ministers responsible for the operation of hit squads within the military, refused to make any overall recommendations, and recommended investigation for the purposes of prosecution in only one of 71 cases presented to it.

24 Beginning with the notorious deaths in Sharpeville in 1960 and Soweto in 1976, but continuing up to the present, most recently in Bisho, Ciskei in September 1992.


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October 23, 1992