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Human Rights Developments

Nineteen ninety-two was another turbulent year in South Africa. In March, hopes soared following the all-white referendum favoring the continuance of negotiations to establish democracy. By late June, however, when negotiations between the African National Congress (anc) and the government broke down, fears grew that the transition process would fail and political violence would spin out of control. Although formal negotiations are likely to resume early in 1993, the prospects for a successful transition have become bleaker.

Multilateral negotiations for a transition to majority rule began in 1991. Known as the Convention for a Democratic South Africa (Codesa), they made some progress in the first half of 1992 but stalled in May after a series of disagreements between the government and the anc. Following the killing of 42 residents of the township of Boipatong in June, the anc instituted a program of mass action and suspended its participation in Codesa until the government satisfied certain preconditions.

In September, after troops of the nominally independent homeland of Ciskei killed 28 anc demonstrators, the government finally agreed to meet the anc's demands, including the phased release of over 500 political prisoners, the fencing off of certain hostels for migrant workers, and the banning of the public display of dangerous weapons, thus laying the basis for the resumption of formal negotiations. However, other groups, including the Natal-based Inkatha Freedom Party (Inkatha), led by Chief GatshaButhelezi, Chief Minister of the KwaZulu homeland, and the regimes in Ciskei and Bophuthatswana, rejected the agreement. Multilateral negotiations have not yet resumed; however, in November, State President F.W. de Klerk announced plans to hold multiracial elections in April 1994. The anc rejected this timetable as unacceptably slow. Until an agreement is reached and implemented, black South Africans do not have the right to vote.

Escalating violence, especially in Natal province and around Pretoria and Johannesburg in the Transvaal ("the pwv area"), has become the single most important issue facing political leaders. Politically related violence resulted in over 3,000 deaths nationally from January through October 1992. Patterns of violence evident in 1991 continued, and targets included many participants in the peace process that was initiated with the signing of the National Peace Accord in September 1991. There was also an increase in the number of attacks on commuter trains and in violence between township residents and hostel dwellers in the pwv area.

In its October 1992 figures for the year to date, the independent Human Rights Commission (hrc) reported that 1,147 people had been killed in political violence in Natal, including 32 killed by the security forces. Attacks on prominent grassroots organizers continued and in many cases blocked local efforts to establish peace. The Natal violence has been ongoing since the 1980s and is closely related to rivalry between the anc and Inkatha. A major factor contributing to the violence is the conduct of the KwaZulu Police (kzp) who have shown a strong pro-Inkatha bias and have been repeatedly accused of instigating attacks. Few kzp members have been prosecuted for misconduct. No public investigation of kzp activities has yet been undertaken.

Through October, the hrc recorded 1,663 deaths in the pwv area. With the exception of train attacks, which accounted for 257 of these fatalities, the level of violence dropped in the second half of the year. Most of the train attacks took place during the morning or evening rush hours. Attackers shot commuters on platforms and boarded trains to shoot, hack and stab passengers to death. Many passengers lost their lives jumping from moving trains in an attempt to flee attackers. After two years of such attacks, only one successful prosecution has been launched. Only in March 1992, 21 months after the train attacks began, did the government finally prohibit the carrying of dangerous weapons at railway stations and on trains.

One important effort to end violence that the government supported was the establishment of the Goldstone Commission. Formed in 1991 and led by Justice Richard Goldstone, it has conducted numerous investigations into public violence and developed a reputation as an independent and impartial body. In 1992, it publicly recommended steps the government should take to end the violence. These recommendations are not binding and the commission has complained that many have been ignored. In January 1992, the Goldstone Commission announced that it would investigate train violence. Following this announcement, both police and Spoornet, the commuter railway operator, increased efforts to end trainviolence. In July, the commission's interim report on train violence identified many problems with the physical condition and layout of trains and stations that contributed to the large number of deaths.

Violence between hostel dwellers and township residents was particularly serious in the pwv area in 1992. In March, the violence was so intense in Alexandra, north of Johannesburg, that many township residents were forced to flee their homes and at least 52 people were killed and 389 injured. The violence centered around the Madala Hostel, following a recruitment campaign by Inkatha, and residents now want the hostel to be closed. In Soweto, a similar pattern of violence between local residents and inmates of the Jabulani, Nancefield, Dobsonville and Mzimhlope Hostels has resulted in at least 200 deaths since January 1991. Initial demands that the hostels be converted to family units are being dropped in favor of demands for their demolition. In May 1991, the government agreed to upgrade the hostels, but no action was taken. The government's reluctance to act on the hostels issue can be explained in part by Inkatha's vigorous opposition to these proposals.

The pressure on the government to take steps to halt the bloodshed grew dramatically after the massacre of 42 people in Boipatong in June. Witnesses alleged that hostel dwellers, with police assistance, entered the township at night and hacked and stabbed men, women, children and infants to death. The Goldstone Commission heard evidence from witnesses that police casspirs (armored vehicles) escorted armed hostel dwellers into the township. Police arrested 93 residents of the nearby KwaMadala Hostel. In July, the commission recommended that the government place fences around hostels and provide security to ensure that people carrying weapons cannot enter or leave hostels.

The Goldstone Commission also recommended a total ban on the carrying of dangerous weapons in public, an issue that became highly politicized in 1991 when Inkatha vigorously defended the right to carry "cultural weapons" such as spears and sticks. The government has wavered on this issue. In 1991, it banned dangerous weapons in public but excluded Zulu "cultural weapons," despite the numerous violent incidents involving these weapons. In September 1992, the government finally agreed both to fence the hostels and to ban the public display of "cultural weapons." Chief Buthelezi, the Inkatha leader, immediately vowed to defy the ban, which has not been enforced.

The South African government has shown a new willingness to permit international involvement in the country's problems. Most important, in June, a Special Representative of the United Nations Secretary-General visited South Africa for the first time and produced a report, considered by the U.N. Security Council in July. The report made several recommendations, some of which focused on the need to strengthen the National Peace Accord structures to enable them to operate effectively. U.N. monitors were sent to South Africa to work with the National Peace Secretariat duringmass protests and demonstrations in August and September, and were instrumental in some cases in reducing violent incidents.

The Goldstone Commission has also received international assistance. In May, Justice Goldstone announced the appointment of a multinational advisory panel to examine the policing of public demonstrations. The panel produced a detailed report in July and made many recommendations, including new training for police officers in public relations, communication and the use of non-lethal equipment to control demonstrations. It also recommended that legislative changes be implemented to facilitate the holding of peaceful demonstrations, transferring authority to impose conditions on demonstrations from police to local magistrates and suggesting appropriate criteria.

The commission also invited Dr. Peter Waddington, a British criminologist, to review the police investigation of the Boipatong massacre. He sharply criticized the South African Police (SAP), calling their response to the attack and subsequent investigation "woefully inadequate" and "incompetent." He found serious shortcomings in command and control and in contingency planning. The police ignored the main conclusion of the report, which was that "the SAP is an unaccountable police force."

Following press reports of numerous deaths in detention, and allegations in August by a senior independent pathologist, Dr. Jonathan Gluckman, that he believed police to be responsible for many of these deaths, the government announced it would permit the International Committee of the Red Cross to examine prisons in South Africa for the first time. Deaths in detention continue and remain a serious obstacle to the creation of public trust in the much-discredited SAP. The hrc reported that 113 people died in detention through October.

During 1992, evidence implicating the security forces in the violence devastating the black townships continued to emerge, much of it uncovered by the Goldstone Commission. Evidence was produced to the commission showing that sadf Military Intelligence had funded companies in the past that had provided training and arms to Inkatha and township gangs that were later involved in violence. In November, a British-born former Inkatha official who had been deported to Britain in July confirmed these reports by revealing that he had imported arms for Inkatha from Mozambique to fuel a terror strategy designed to prevent the anc from taking power.

In May, the commission investigated the conduct of 32 Battalion, a white-led unit composed mainly of black soldiers recruited in Angola. The commission found that the battalion had acted, in Phola Park squatter camp in April, in a manner "completely inconsistent with the functioning of a peacekeeping force, and, in fact, became perpetrators of violence." After initial resistance, the government announced in July that the battalion would be disbanded, together with two other notorious foreign units.

Also in May, a South African newspaper reported that it had evidence linking the head of Military Intelligence, General C.P. van der Westhuizen, to the 1985 murder of four prominent anti-apartheid activists, including Matthew Goniwe, who was a teacher and an important figure in the United Democratic Front. The paper claimed it had a copy of a transcript of a conversation suggesting that these activists should be "permanently removed from society as a matter of urgency." The document was also apparently approved by the State Security Council, a body composed of members of the cabinet and senior military officers. President de Klerk was compelled to reopen the inquest into Goniwe's death following these disclosures. However, four months after the inquest was reopened, the investigators had not interviewed van der Westhuizen, who continues to carry out his duties.

In October, the inquest into the murder in 1989 of Johannesburg academic David Webster was reopened. Evidence was presented to the inquest concerning covert security force involvement in the shooting of Webster outside his home, and in the killing of other opposition figures. A witness to the inquest admitted that he had lied to the 1990 Harms Commission of inquiry into the operation of hit squads.

In November, in one of the most spectacular revelations of covert security force activity, the Goldstone Commission announced that it had seized files indicating that Military Intelligence had recruited a convicted murderer, who was also a former hit-squad member suspected of Webster's murder, to undertake operations to discredit the anc, including the use of prostitutes, drug dealers and other criminal elements. President de Klerk reshuffled the command of Military Intelligence following the commission's report, but did not fire or suspend any of the officers implicated in the scandal.

The Goldstone Commission continues its investigations. It has requested additional powers to investigate the South African Defence Force (sadf), the SAP, the kzp, Umkhonto we Sizwe ("Spear of the Nation," the armed wing of the anc) and other paramilitary groups and private security firms. The government refused to grant the additional powers, but has promised to supply more police personnel to the commission. The commission currently has no independent power to compel testimony or the production of evidence and it has no power of prosecution. On several occasions it has recommended that charges be brought against police officers and others, but with one exception, no prosecutions have taken place.

The failure to ensure accountability for security force violations of human rights remains a serious problem, despite exceptional cases in which individual officers have been successfully prosecuted. Even when police officers are implicated in violence, they are often not suspended pending trial and receive lenient sentencing if convicted. Two police officers, convicted and sentenced for several murders, were released early from prison in 1992 after serving only months of 17- and 18-year sentences. In a case known as the "Trust Feeds case," which was heard in April, the court found one white police captain and four black special constables guilty of the murder of 11 people in 1988. However, evidence at the trial indicated an earlier cover-up of police complicity.

In October, the government introduced legislation that would extend its existing powers to grant indemnity from prosecution. Unexpectedly defeated in the Indian house of the racially divided tricameral parliament, President de Klerk forced the bill into law through the President's Council, a rubber-stamp body with the power to overrule parliament. The legislation will allow the government to exempt unconditionally members of the security forces from prosecution for offenses they have committed, including the most serious human rights violations. No details of the offenses forgiven need be disclosed. The act was condemned by the anc and by national and international human rights organizations.

In March, the government announced that a moratorium on hangings of prisoners sentenced to death, in effect since the end of 1989, would be lifted. However, it was forced to back down after numerous denunciations by national and international human rights groups, churches and the anc. The moratorium was reinstated, pending the conclusion of constitutional negotiations and agreement on a bill of rights. In Bophuthatswana, three convicted murderers were to be hanged in November, but were granted a 90-day reprieve. Three hundred prisoners remain on death row.

Although many of the most important statutes that formed the basis of apartheid were repealed in 1991, much repressive legislation remains in place, including the Internal Security Act, which, as amended in 1991, permits police to detain a person without trial for up to ten days, and the Public Safety Act, which permits the Minister of Law and Order to declare an area to be an "unrest area." In an "unrest area," police can impose curfews and impose restrictions on entry and exit from the area, conduct warrantless searches and seizures, detain suspects without trial for up to 30 days, and enjoy indemnity against prosecution. The press may also be excluded. For the first seven months of 1992, 49 declarations of "unrest areas" were made.

New legislation of concern was also passed during 1992, including the Criminal Law Second Amendment Act, which amends existing legislation to broaden the definition of the crime of "intimidation" and shifts the burden of proof to the defendant on the often-critical issue of intent. This measure is inconsistent with the presumption of innocence. The government also introduced the Interception and Monitoring Prohibition Bill, which gives the police extensive powers to intercept mail or tap telephones. The bill is drafted very broadly, and South African human rights groups have condemned it.

The legislation establishing the ten black homelands remains in force. Although it is assumed that the "non-independent" homelands will be superseded under a new constitutional order for South Africa, the question of reincorporation of the four nominally independent homelands (Transkei, Bophuthatswana, Venda and Ciskei) has not been resolved. The South African government maintains that it is up to each "independent" homeland to decide whether to retain its "sovereignty." Although Transkei and Venda have stated that they favor reincorporation, Bophuthatswana maintains that it will remain "independent," while Ciskei has equivocated. Theposition of the anc is that the consent of the homeland administrations is irrelevant and alleged legal difficulties in reincorporation of no validity.

In Bophuthatswana, the high level of repression has continued. Police brutality is extreme and virtually unchecked, and has increased over the last two years. The rights to freedom of assembly and association are not respected: any meeting of more than two people requires government permission, and those who have not registered themselves as citizens of the homeland are forbidden from taking part in political activity. Numerous "illegal gathering" cases have been prosecuted. In October, the Bophuthatswana parliament approved the Prevention and Control of Mass Action bill, which will effectively prohibit public demonstrations in the bantustan. Detentions of anc members and officials and others, including students at the University of Bophuthatswana, continue to take place, though usually for limited periods. While most long-term political prisoners who had been held in Bophuthatswana were released by the beginning of 1992, at least six remain in jail. Two of these, Christopher Makgale and Petrus Mothupi, undertook a hunger strike to protest their continued detention. Discussions between the anc and the homeland government offer the hope of some improvement in the situation.

The situation in Ciskei remains critical. Brigadier Oupa Gqozo, the military ruler who came to power in a coup in 1990, has continued to restrict freedom of expression, assembly and association, and tension between the anc and the homeland government has remained high. Detention without trial is common. Incidents of violence within the homeland have also been on the rise, with attacks on appointed headmen leading to retaliation by the homeland police.

On March 11, the anc and allied organizations officially launched a "Popular Front for Peace and Democracy in Ciskei," despite a "truce" between the homeland government and its opponents in which Gqozo had agreed to review Ciskei's security legislation restricting freedom of assembly. This campaign led to serious clashes between the anc and police, notably in the township of Mdantsane on August 2, and in the "Bisho massacre" of September 7, when a peaceful demonstration of approximately 70,000 anc supporters was fired on by members of the Ciskei army and police. Twenty-eight died and approximately 200 were wounded. The officer in charge of the Ciskei forces was a seconded sadf officer, Brigadier Marius Oelschig, and large numbers of sadf troops were present near the site of the march, but took no action. The Goldstone Commission published a report condemning the actions of the homeland armed forces as "morally and legally indefensible," and unjustifiable as a response to anc actions.

Among the "non-independent" homelands, the situation in KwaZulu is of most concern. Political violence is extremely severe. The police force of the homeland is deeply implicated in the perpetuation of this violence, and is independently guilty of the summary execution and torture of detainees in its control. Chief Gatsha Buthelezi, the president of Inkatha, is also the chiefminister of the homeland. Membership in Inkatha is virtually compulsory for all involved in the administration of the homeland, and freedom of expression and association are severely compromised.

The Right to Monitor

Human rights organizations have been free to monitor human rights abuses in South Africa to a greater extent than in the past. However, the Internal Security Act still permits the Minister of Law and Order to ban certain organizations or forbid specific gatherings.

In the homeland of Bophuthatswana, the Black Sash and the Transvaal Rural Action Committee, South African-based human rights organizations, continue to be banned. The Mafikeng Anti-Repression Forum (maref), a local human rights group, was refused permission to visit political prisoners on hunger strike in Bophuthatswana prisons.

A provision of the Police Act of 1958, which prohibited the media from reporting on police actions and imposed the onerous burden of proof on editors to produce sworn evidence supporting reports of police misconduct, was repealed. The provision had severely inhibited the ability of the press to report on police matters. As a result of this repeal, it became possible to cover stories such as the report by Dr. Gluckman alleging police responsibility for deaths in detention.

Still, journalists remained subject to restrictions in 1992. In April, the editor and a journalist from the New Nation were subpoenaed to appear before a court to reveal their source for an article alleging police involvement in a taxi war in the Western Transvaal. In May, the Commissioner of Police obtained an injunction against the Vrye Weekblad, which prevented the paper from publishing a report on police activity. In September, a former agent of a covert security force unit obtained a court order preventing the Weekly Mail from publishing details of his activities. On several occasions, journalists were attacked and injured when attending township funerals. In August, a South African journalist narrowly escaped death and an American journalist was injured when they were shot by youths while covering the general strike.

U.S. Policy

In 1992, the U.S. government continued to urge all political parties in South Africa to negotiate a transition to democracy. It publicly welcomed the overwhelming "yes" vote in the all-white March referendum on whether President de Klerk should continue democracy negotiations. When negotiations broke down in June, the Administration urged both the government and the anc to resume talks. In July, the U.S. supported sending a U.N. mission to South Africa in an effort to restart democracy negotiations but said that the purpose of the U.N. was "not to diagnose the origins of the violence in South Africa, nor to impose conditions on those who bear the responsibility for the violence."

While the administration has not previously publicly acknowledged the South African government's role in the violence, Assistant Secretary of State for African Affairs Herman Cohen, in testimony before the House Foreign Affairs Committee on July 23, said:

The government must do more to address allegations of complicity in the violence by members of the security forces. A peaceful climate is not possible as long as people lack confidence in the impartiality of the police. In addition, we are concerned by Justice Goldstone's recent report stating that the South African Government has failed to implement his recommendations.

Secretary Cohen also criticized the anc and Inkatha for their role in the violence without attempting to apportion relative blame. In the past, the administration, while criticizing both groups, has given undue emphasis to abuses suffered by Inkatha supporters.

In September, following the Bisho massacre, the administration delivered a strong condemnation of security force action. State Department spokesman Richard Boucher said, "The South African government is ultimately responsible for the actions of the homelands." However, the anc organizers of the demonstration that led to the massacre were also criticized on the grounds that their actions were a distraction from the primary issue, namely, negotiations with the government.

Although most U.S. sanctions against South Africa were lifted in 1991, certain trade sanctions remain in place. Exports to the SAP and sadf of arms and related material, and imports to the United States of arms, ammunition and military equipment manufactured in South Africa, remain prohibited. The U.S. executive director of the International Monetary Fund is still instructed to oppose any application for the extension to South Africa of a loan unless the loan serves basic human needs. Support for exports that would enable the South African government to maintain apartheid also remain banned. A large number of state and local governments also maintain their own sanctions against South Africa, most of which have not yet been lifted.

In 1992, the U.S. government lifted some remaining sanctions to improve South African economic prospects. Restrictions on the provision by the Export-Import Bank of credits for U.S. exports to the South African government were lifted. These credits may also be provided to South African companies if the Secretary of State certifies that the company complies with the Fair Labor Standards Act. In March, the State Department also announced that South Africa was a "friendly country" and therefore eligible for Trade and Development Program development planning services. The State Department's Country Reports on Human Rights Practices for 1991, issued in January 1992, correctly acknowledges that violence threatens the negotiation process, but is misleading because it suggests that the violence is the result either of factional conflict or criminal elements using factionalism as a disguise. Itcompletely ignores the repeated allegations made of government and security force complicity in the violence. While the report notes many instances of alleged police misconduct and numerous failures by the criminal justice system to prosecute police for unlawful activities, it does not suggest that this or the failure of the government to take effective measures to end the violence are factors that contribute to the violence. The report also credits the government for being "somewhat responsive" to claims of police brutality by instigating some investigations when all the government had done was establish an internal team of police investigators.

For fiscal year 1992, $80 million was budgeted for assistance to South Africa. The administration initially requested $70 million to be provided to nongovernmental groups, mostly for scholarships in South Africa and the United States. Congress also provided an additional $10 million targeted for distribution to black opposition groups that had renounced violence. These additional funds were intended to assist political groups to acquire the technical support facilities needed for effective organization.

The Work of Africa Watch

In December 1991, Africa Watch published a detailed newsletter on human rights in Ciskei, the first international report on that homeland. In August 1992, the Human Rights Watch Prison Project made a trip to South Africa to visit prisons. A follow-up visit is planned for 1993 when a report will be released. In October 1992, a newsletter was issued on the provisions of the Amnesty Law, which protected from prosecution members of the government security services and the anc who have been responsible for human rights abuses in the past.

Several detailed letters were sent to the South African government and to the homeland administrations protesting the continued imprisonment of political prisoners in Bophuthatswana and the excessive use of force by the Ciskei Defence Forces in September.

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