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COMMENTS ON AFRICA WATCH RECOMMENDATIONS MADE IN JANUARY 1991 TO THE NATIONAL PARTY GOVERNMENT

1. A. Establish independent and thorough judicial commissions of inquiry into the role of the police and defense forces and act on evidence collected. The government should investigate on its own initiative serious human rights cases that come to its attention, regardless of whether a formal complaint has been made.

B. The results of these investigations, including information about any disciplinary action the government has taken or any prosecution it has initiated, should be made public.

The principal effort to implement these recommendations has been the establishment of the Goldstone Commission whose reports have been made available to the public. The Goldstone Commission, however, is charged with investigating all serious incidents of violence and it has been able to conduct only a limited number of investigations into security force misconduct. The Commission may only make recommendations to the government or, when circumstances warrant, refer matters to an Attorney-General who, alone, makes the decision to prosecute persons suspected of complicity in the violence. Since it began its work in late 1991, the Commission has established a reputation as a fair and impartial body. However, the Commission lacks authority to determine guilt or innocence, and victims of violence must look to the police and the overwhelmed criminal and civil courts for redress.

In the few other isolated instances in which judges have been appointed to conduct independent investigations, they too have only had the power to recommend prosecutions to the relevant Attorney-General. However, because these inquiries have not led to prosecutions and because an Attorney-General is not required to disclose reasons for a decision not to prosecute, the impression is created that the government is unwilling to prosecute police or security force members for misconduct. Results of internal investigations into police or security force misconduct are not made available to the public.

Under the 1991 National Peace Accord, individuals may bring allegations of public violence to the attention of the Goldstone Commission with a request to investigate. Proceedings of the Commission are public. Initially, the Commission relied solely on information placed before it by individuals or organizations who testified; in October 1992, it was finally given independent powers of investigation and a limited number of police personnel to form an investigation unit. The Commission has powers of search and seizure of documents, and the power to compel witnesses to give evidence, including self-incriminating evidence (though such evidence cannot form the basis of a later court case). Since its establishment, the Commission has received an overwhelming number of requests to conduct investigations of violence. It has carried out 24 major investigations to date, and its written reports have been of great importance in establishing the facts of violent incidents. Nevertheless, the Commission remains a small operation with few staff,³⁰ inadequate to address the overwhelming level of violence in South Africa.

Reports produced by the Goldstone Commission are made public. However, the government has been able to manipulate the publication of these reports in an attempt to exonerate itself from responsibility for the violence. In April 1992, the Commission released to Parliament a second interim report on the violence. The government released the report only after one month's delay. The portion of the report then released stated that "the Commission has no doubt that the primary cause of the violence in all these areas is the political battle between supporters of the African National Congress and of Inkatha,"³¹ and that the Commission had no evidence suggesting there was a secret group behind the violence. The statement also said "even if the allegations against members of the security forces prove to be justified, such misconduct would not have been possible but for the ongoing battle between the ANC and the Inkatha Freedom Party." The government claimed that its past denials of complicity in the violence had been vindicated.

The ANC immediately condemned the report. Several days later when the government made the full report available to the public, it became evident that in fact the Commission had not exonerated the government. Although it identified many causes for the violence, the Commission noted that "our recent history has been one in which the government has failed to take sufficiently firm steps to prevent criminal conduct by members of the security forces and the police and to ensure that the guilty are promptly and adequately punished," and that while it had received no evidence of direct complicity in or planning of current violence by President de Klerk, any member of the Cabinet or any highly placed officer in the security forces, it had received evidence supporting other allegations of government and security force involvement in the violence.³² In his report on South Africa released in August 1992, the U.N. Secretary-General recommended that reports of the Goldstone Commission be made available to the Peace Accord signatories within 24 hours of being submitted to the President. The government has agreed to follow this procedure.

Since January 1991, in addition to inquiries conducted by the Goldstone Commission, there have also been other judicial inquiries have taken place into allegations of police or defense force misconduct (See Appendix, Investigations of Police Misconduct, and Complicity by the Defense Forces). None of these inquiries has yet resulted in completed prosecutions of police officers. The police officer responsible for uncovering evidence of police involvement in the Trust Feeds massacre (see Appendix, case 23), Major Frank Dutton, was responsible for many of the investigations that did lead to prosecutions. Police officers have been convicted in the criminal courts for isolated acts of criminal misconduct, but often sentences are very light, or those convicted are released early (see Appendix, cases 39-42). In the vast majority of cases in which complaints are made, no prosecutions occur. There is as yet no evidence of a practice of state willingness to prosecute errant police officers.

Until December 1992, when President de Klerk admitted that elements within Military Intelligence had conducted a covert campaign against the ANC and dismissed 23 officers (see Appendix, case 52), the government rejected outright allegations of complicity by members of the security forces in the violence. When newspapers have printed reports of alleged security force involvement in covert activities, the government has dismissed these reports as orchestrated attempts to discredit the security forces and the government. However, in 1991, when The Weekly Mail, an independent South African newspaper, published reports of secret police funding of Inkatha rallies in 1989 and 1990, the government conceded it had provided funding but claimed that it was part of an anti-sanctions campaign.

While the government has established the Goldstone Commission and made public its reports, the Commission has frequently complained that some of its recommendations have been ignored. They include a recommendation that certain single-sex hostels for migrant workers, often at the center of violence in the Johannesburg and Vaal area, should immediately be adequately and securely fenced, that a strong police presence should be provided to ensure that no arms are taken into or out of hostels, and that police should be in a position to protect hostel dwellers from outside attack. (For a description of violent incidents involving hostel dwellers, see Appendix, cases 11-14 and Government Inaction on the Hostels.) The Commission characterized the response of a senior member of the SADF to another recommendation that 32 Battalion, a unit of the SADF, should not be deployed in peacekeeping in the townships as "unhelpful" and said no reasons had been furnished for ignoring its recommendations. In addition, it said its recommendation concerning the carrying of dangerous weapons had been "partially but inadequately implemented."³³

In July 1992, the government announced that Battalions 32 and 31 and the Koevoet unit (or Crowbar unit, a former South West African police counterinsurgency unit and one which the Commission recommended be disbanded) would be disbanded and members incorporated into other existing units,³⁴ that fencing of workers hostels would be considered if it was agreed to by hostel residents and would improve community security, and that police would crack down on the possession of dangerous weapons. This announcement came two months after the Goldstone Commission's recommendations, and was made only after the Boipatong massacre in which 45 people were killed at the hands of hostel dwellers, when international attention focused on the violence in South Africa, the ANC withdrew from democracy negotiations and the U.N. Security Council met to discuss South African violence. The timing called into question the sincerity of the government's response to the virtual civil war being waged in the country.

In September, in bilateral talks with the ANC aimed at restarting full scale negotiations, the government agreed amongst other things to release about 500 political prisoners, to implement the Goldstone Commission recommendations to fence hostels in violent areas, and to take steps to prevent persons carrying dangerous weapons, including "cultural weapons" such as assegais, in public. While many political prisoners have been released, amid much controversy, hostels have still not been fenced and dangerous weapons are still routinely carried in public.

The Goldstone Commission has also recommended that the government should investigate on its own initiative serious human rights cases that came to its attention, even if a formal complaint had not been made. The government has made no effort to do this; generally it has only reluctantly investigated abuses when public pressure in South Africa or abroad has forced it to act. Indeed, government action in 1992 reveals a desire to avoid investigations of human rights abuses if members of the security forces are implicated. In September 1992, the government began to push strongly for a general amnesty for all persons who had committed political crimes before October 1990. After being rejected by parliament, legislation embodying the government's amnesty proposal was adopted in October 1992 by the President's Council, a body dominated by the National Party government and created to ensure enactment of National Party policy. The legislation permits individuals to be given an indemnity from prosecution if they confess their crimes in secret to a body appointed by President de Klerk. Evidence submitted to that body may later be destroyed. As a result, black South Africans who have suffered for years under apartheid will not even be permitted to know what happened to loved ones who died in prison or who disappeared. The ANC announced it would not recognize this legislation and would annul it if elected to government.³⁵

Passage of this legislation deserves strong international condemnation. Instead of conducting amnesty proceedings, the government should reverse its policy of secrecy, particularly with regard to covert operations, and provide bodies such as the Goldstone Commission and criminal courts access to evidence of security force misconduct. The courts in South Africa already have sufficient powers to grant indemnity from prosecution to witnesses who would not otherwise give evidence. It is incumbent on President de Klerk and his Cabinet to take every measure necessary to create public trust in the security forces by ensuring they are accountable under the law for violent acts. The measures should include abolishing the immunity of security forces for all actions taken during the course of duty, repealing the latest indemnity act, conducting independent investigations of security force complicity in the violence and, in cases where members of the security forces are implicated in the violence by credible evidence, immediately suspending those persons from active duty pending a full independent investigation.

2. Lift emergency restrictions on "unrest areas," which have been used as an excuse by security forces to perpetuate abuses.

This recommendation has not been implemented. The practice of declaring "unrest areas" under the Public Safety Act appears to be on the rise, despite evidence that the attendant additional powers do not enhance the ability of the police to prevent further violence. In 1992, 58 districts were declared "unrest areas" and by year end, 33 districts were still affected. The declaration of an "unrest area" effectively imposes a state of emergency on the area and grants to police the usual emergency powers, including detention without trial; dispersal of gatherings by force; entry, search and seizure without a warrant; curfews and other restrictions on movement of residents; and indemnity against prosecution for members of the security forces. In many areas, emergency restrictions remain in place for months. Each of the townships of Soweto, Meadowlands, Dobsonville and Diepkloof were subjected to unrest restrictions from March 11, 1991, through October 23, 1992. During that time, incidents of violence continued; and in Soweto the level of violence in March rose to one of the highest levels experienced since August 1990.

In the attached Appendix, Africa Watch describes incidents of violence occurring in areas designated as "unrest areas." (See Appendix, cases 2, 4, 12, 13 and 20.) In some of these cases, witnesses alleged that members of the security forces had participated in the violence or otherwise engaged in misconduct. (See Appendix, cases 4 and 20.) In only a few of these incidents have the perpetrators been identified.

3. Begin immediately to dismantle the homeland administrative structures and bring them all under the direct control of the South African government.

At the heart of the structure of grand apartheid was the creation of a system of "homelands" for black South Africans, who were to be deprived of their South African citizenship and given membership instead of supposedly independent countries, one for each ethnic group. Although the homeland system was never fully implemented, ten homelands were created, of which four are nominally independent, and six merely "self-governing."³⁶ All ten homelands depend directly on the South African government for funding and other support.³⁷ Conflict surrounding the creation of the homelands, the allocation of land to them, and the forced removals of whole communities to homeland areas has always been the cause of some of the most serious political violence in South Africa.

Political violence is particularly of concern in the "independent" homelands of Bophuthatswana and Ciskei, and in the "self-governing territory" of KwaZulu. In Bophuthatswana, the government of President Lucas Mangope remains as repressive as that of South Africa before the reforms which began to be introduced in 1990.³⁸ Although Bophuthatswana has not been a center of serious non-state poltical violence, violence by police and security forces against activists opposed to the government is commonplace. In Ciskei, the regime of Brigadier Oupa Gqozo gained international notoreity in September 1992, when the security forces of the homeland opened fire on a peaceful march organized by the ANC, killing 28 and injuring more than two hundred. Political violence in the homeland generally has been increasing ever since late 1990, when Gqozo cracked down on the ANC and its allies after a brief period of liberalization.³⁹ KwaZulu is the site of some of the worst conflict in South Africa, and receives extensive attention elsewhere in this report.⁴⁰ The governments of Bophuthatswana, Ciskei and KwaZulu have joined conservative white groups in South Africa to form the "Concerned South Africans Group" (Cosag), to oppose reincorporation of the "independent" homelands and to support a federal system for South Africa with strong local autonomy.

Transkei, while one of the least violent areas in South Africa, has received attention as the location of or alleged base for a number of politically-motivated attacks against whites, allegedly carried out by APLA, the armed wing of the PAC. In March 1993, following an investigation with which neither the PAC nor the Transkei government would cooperate, a report by the Goldstone Commission concluded that "APLA members received military training at various places in Transkei, [although] there would appear to be no permanent base in Transkei." The government immediately announced that more than one thousand troops would mount blocks on all roads into and out of the homeland, and patrol the border. This reaction is in notable contrast to the government's response to violence involving black people. The blockade, alleged by the ANC and PAC to be an attempt to topple Major-General Bantu Holomisa, the homeland's ruler, simply served to generate further conflict. Consumer boycotts protesting the blockade in towns bordering Transkei led to armed confrontations between business people, police and consumers.

At the Codesa negotiation in 1992 there was agreement in principle by all parties except Bophuthatswana to the reincorporation into South Africa of the "independent" homelands, Transkei, Bophuthatswana, Venda and Ciskei ("the TBVC states"). This principle was confirmed in bilateral negotiations between the government and the ANC in January 1993. Formal reincorporation would not take place until an interim government was in place after multi-racial elections, but the TBVC states would be bound by transitional arrangements. In early April 1993, however, soon after troops surrounded Transkei, a leaked government document revealed proposals for the immediate assimilation of the TBVC states.

While Africa Watch supports the idea that the "independent" homelands should be reincorporated before multi-racial elections, and in particular that all security forces should be brought under a unified command, unilateral steps of this type taken without consultation with all parties cannot at this stage be helpful, and are likely to contribute to conflict.

Unilateral measures have also been taken in respect of the "self-governing territories," but in this case with the apparent aim of strengthening the homeland governments. In August 1992, it was discovered that the government was intending to transfer to the control of the governments of Lebowa, QwaQwa and KwaZulu a total of 1.2 million additional hectares of land. Approximately half the land would be transfered to the control of KwaZulu. The details of the type of control that would be offered to the homelands, as well as the purpose of the transactions, remain obscure. However, it is clear that the proposal is extremely likely to lead to conflict in communities threatened with homeland administration. Moreover, transfer of land at this stage both strengthens undemocratic and corrupt homeland leaders and preempts crucial decisions over land allocation that will be amongst the most important of any new government in South Africa.

In its third interim report, of December 21, 1992, the Goldstone Commission concluded, in its discussion of violence in Natal, that "there should be a suspension of any further transfers of land ... to the KwaZulu government. To proceed at the present time would, in the opinion of the Commission, seriously aggravate the violence." However, on February 1, 1993, Deputy Minister of Regional and Land Affairs Johan Scheepers said that the government would not put a moratorium on the transfers.⁴¹ Africa Watch is extremely concerned at this failure to heed warnings of further conflict.

4. Hold joint forums with police and political groups to hear grievances and raise awareness of rights.

In an effort to develop conditions for peace at the grassroots level, the National Peace Accord of September 1991 provided for the establishment of a National Peace Committee to be complemented at the local level by regional dispute resolution committees (RDRCs) and local dispute resolution committees (LDRCs). The committees are composed of community representatives, including those from political organizations, churches, trade unions and business, the police and defense force, and relevant local and tribal authorities. An RDRC is supposed to advise the Goldstone Commission on the causes of violence and intimidation in a region, to settle disputes by negotiating with the parties, to monitor compliance with the Peace Accord and to inform the National Peace Committee of steps taken to prevent violence in an area. An LRDC's responsibility is to promote peace and stability by creating trust and reconciliation at the grassroots level, cooperating with the local judicial system, settling disputes by negotiating with the parties, reporting and making recommendations to the relevant RDRC and eliminating obstacles to peace. By May 1992, eleven RDRCs, covering all South Africa, and 23 LDRCs had been formed in violence-torn areas. By the end of the year, over 90 LDRCs were in existence.

Many problems hamper the creation of RDRCs and LDRCs. In the areas where they are most needed, they have had to battle the lack of trust between supporters of different political groups and between the community and the police. During 1991, in particular, efforts to create the committees were met with outbursts of violence coinciding with breakthroughs in peace initiatives. In many cases, persons actively engaged in the formation of the committees have been targets of intimidation and violence, and in some cases they have been assassinated (see Appendix, cases 16-19). The targeting of grassroots peace activists has discouraged others from participating in peace initiatives and increased the risk of being seen as effective. In Natal, Inkatha announced that it would no longer participate in peace initiatives owing to increased violence, and the formation of local dispute resolution committees under the Peace Accord has been frustrated. In March 1992, the Black Sash Repression Monitoring Group, an independent human rights monitoring group based in Natal, stated in its report on Natal that a Regional Dispute Resolution Committee (RDRC) had been formed for Natal but, months after the signing of the Peace Accord, only one Local Dispute Resolution Committee (LDRC), in Umlazi, was meeting regularly. Efforts to establish other LDRCs in the area are ongoing, but where they have been set up they have generally had little long-term success.

In an interview with a Washington Post correspondent, the Chairman of the National Peace Committee, John Hall, said, "[a]narchy is rife, people are being killed every day and we are becoming inured to it." He also claimed the Peace Accord had been a dismal flop.⁴² Throughout the country efforts to establish LDRCs have met with limited success only after considerable effort on the part of those involved and numerous deaths on all sides. They have suffered from a lack of resources and full-time personnel. Nevertheless, there have been some successes, and local dispute resolution mechanisms have received part of the credit for the reduction of violence in the Pretoria and Johannesburg area during the second half of 1992.

In a report released in August 1992 by U.N. Secretary-General Boutros Boutros-Ghali, following a visit to South Africa by U.N. special representative Cyrus Vance, Mr. Boutros-Ghali said the Peace Secretariat had a "desperate need for efficient functioning offices or operation centers at the major 'flashpoints',"⁴³ staffed on a 24-hour basis and fully funded and equipped. The government subsequently announced that funding had been made available to open these operations centers.

One of the most important tasks facing the committees is the creation of public trust in the security forces. In May 1992, the National Peace Committee said that the "role of the police was clearly linked to the whole question of community stability and lack of trust in the security forces was seen as a major obstacle in the way of achieving peace."⁴⁴ The Committee agreed that the RDRCs and the LDRCs should be encouraged to form groups to monitor and report on police activities and police and community relations. It encouraged the police and political parties to hold community orientation seminars and urged members of political parties and the National Peace Committee to attend police training courses to provide constructive comment.

In March 1993, the government made approximately $3 million available to the National Peace Accord trust for urgent reconstruction initiatives. Half of this money would be given immediately, and the remainder would be available only if other organizations provided an equal amount. While it is encouraging that the government is finally providing financial assistance to Peace Accord structures, the amount is paltry and much more will be necessary to have a demonstrable impact.⁴⁵

5. Invite genuinely independent domestic and international monitoring groups to help implement changes.

The government has made real progress in implementing this recommendation. In 1992, South Africans witnessed more international involvement in their domestic affairs than was evident in the previous 40 years. Africa Watch welcomes the government's willingness to seek outside assistance in solving some of its most difficult problems. However, while the government has displayed a desire to be accepted into the international community and particularly to reap the benefits of foreign investment, it remains defensive about international criticism and has implemented international recommendations with reluctance. As recently as 1991, several months passed before the government would allow representatives of the United Nations High Commissioner for Refugees to assist in the resettlement of the large number of exiles then returning to South Africa.

Since unbanning the ANC and releasing Nelson Mandela in 1990, President de Klerk has made many visits abroad and has made a concerted effort to recreate the image of the South African government and attract foreign investment. As a result, when the Boipatong massacre in June 1992 attracted international attention, the government's past position of vigorous opposition to international interference became untenable. Pressure to respond to the ANC's demands and to be seen by the international community as responsive to the violence undoubtedly was instrumental in causing the government to accept some form of international presence. The government agreed to permit Justice P.N. Bhagwati, the former chief justice of India, to assist the Goldstone Commission in its investigation into the massacre. Dr. Waddington, the director of Criminal Justice studies at the University of Reading in the United Kingdom, was appointed to act as an assessor of the police investigation, assisted by two police officers from Scotland Yard. Earlier in 1992, Judge Goldstone empaneled a group of domestic and international experts to examine the policing of public demonstrations in South Africa led by Philip Heymann from the Center for Criminal Justice at Harvard Law School (see Comments on Africa Watch Recommendations made in January 1991 to the South African Security Forces, Recommendation 2 above).

In May 1992, the South African government permitted observers from the U.N., the Commonwealth and the Organization of African Unity to attend the negotiations for democracy at Codesa.

In July 1992, the U.N. Security Council met to consider the violence in South Africa in a session addressed by Nelson Mandela, Foreign Minister Roelof "Pik" Botha and Chief Buthelezi. The Security Council sent a special envoy, Mr. Cyrus Vance, to South Africa on a goodwill mission supported by the government to assist in bringing the various groups back to the negotiating table. The Foreign Minister said the government had "no objection to ... international organizations which wish to acquaint themselves with the facts, who want to observe, facilitate, endeavor to get the negotiations on track again."⁴⁶ Following the Boipatong massacre, the ANC called for the introduction of an international force to monitor township violence. In August, ten U.N. monitors went to South Africa with the consent of the government to monitor the ANC-organized strikes.

Following the mission of Mr. Vance to South Africa in July and August 1992, Secretary-General Boutros-Ghali issued a report recommending a number of steps to end the violence and create the conditions for democracy negotiations. The recommendations included the strengthening of mechanisms provided for under the Peace Accord; empowering the Goldstone Commission to conduct a thorough investigation of the SADF, the SAP, the KZP, and non-governmental armed groups, including MK and private security firms; and the dispatch of 30 additional U.N. observers to South Africa. Further recommendations urged the government promptly to implement previous recommendations made by the Goldstone Commission. The U.N. Security Council adopted a resolution embodying the Secretary-General's recommendations. Judge Goldstone agreed that he should be granted the power to investigate fully the various security organizations. In October, additional personnel were finally made available by the government to the Commission to enable it to conduct its own investigations, but no comprehensive examination of all armed forces within South Africa, of the type suggested by the U.N. report, has yet been undertaken.

In November, the U.N. Secretary-General sent another special envoy on a two-week trip to South Africa to assess how the U.N. could assist in the peace process. There are currently about 50 U.N. peace monitors in South Africa who attend rallies and demonstrations as observers. Monitors from the Organization of African Unity, European Community and the Commonwealth are also present and work with the U.N. monitors. In August 1992, Ciskei refused entry to a U.N. monitor attempting to observe a protest march; while Bophuthatswana refused permission to monitors to observe a demonstration by clerics in November.

In its third interim report, the Goldstone Commission stated that it believed that international police observers "could be of substantial assistance to both the SAP and the KZP. Their presence, and involvement for example in selected police stations, would go a long way towards lessening the fears of many that they would not receive fair and serious attention and adequate response to complaints."⁴⁷ The European Community provided to the Commission in late 1992 the services of six experts from different member states, to assist in its work and in violence monitoring.

The government's recent willingness to permit international observers is welcome. An international presence may help to renew democracy negotiations among the various political groups, whose attacks on each other grow increasingly vitriolic. The initiative taken by the Goldstone Commission to seek expert advice on the problems of policing public demonstrations is especially welcome.

6. A. Establish administrative and judicial procedures that provide for the prompt and effective discipline or prosecution of those who have abused the new guidelines.

B. Take steps to speed up the judicial process that will allow it to deal more effectively with violence-related crime.

C. Ensure that courts are adequately equipped to try violence-related cases without delay.

While the government has made progress in establishing new guidelines, as discussed above, it has not made progress in taking action against those accused of violating the guidelines. Although the 1991 Peace Accord provided for the establishment of special criminal courts, none has yet been created. No evidence exists that police have taken prompt action when allegations of abuse have been levelled against fellow officers.

The National Peace Accord included a provision under which the Department of Justice, in co-operation with local legal practitioners, would establish project committees to advise it on the administration of proposed Special Criminal Courts that would deal with unrest-related cases. The courts would dispense justice on an expedited basis and, if necessary, would be mobile. The Accord provided that the courts would be located where they were most needed and acknowledged that for the courts to be effective, special procedural and evidentiary rules would be required. The signatories agreed they would take steps to implement the Accord but, as yet, none have been taken.⁴⁸ In addition, the special justices of the peace envisaged by the Peace Accord who would investigate and mediate violence issues have not materialized.

Efforts made by the government to speed up the judicial process resulted in the enactment of the Criminal Law Second Amendment Act in June 1992 which included new expedited procedures for trying certain offenses. Many of the provisions of this Act, however, adversely affect the ability of an accused to enjoy their rights to due process.

The Act introduces special measures to combat intimidation and speed up trials for special offenses. It criminalizes both direct and indirect forms of intimidation, and removes the obligation of the state to prove intent to intimidate if it shows that the person committed the act specified in the indictment. The Act also includes a presumption of intent to commit an offense of intimidation if a person is unlawfully in the possession of certain weapons, including guns and bombs, and if the state proves that the accused committed any act that constitutes direct or indirect intimidation. It introduces new measures to control organizations of a military nature and prohibits any person from taking part in the control, training or equipping of any organization whose purpose is to take over or to usurp some of the functions of the SAP or the SADF. It provides that certain offenses, including murder, violence and intimidation, may be certified by an Attorney-General as a "special offense." An accused charged with a "special offense" may not be granted bail and the trial of such an offense proceeds on an expedited basis. The state is required to commence the proceedings within 60 days or explain its inability to do so. It is also required to submit a summary of the substantial facts on which its case rests. Under the legislation, the accused is compelled to state whether he accepts this summary of facts and, if not, to state specifically why not. If he does not, the court may draw an unfavorable inference from his failure to do so if it believes that inference is justified. The accused must also state the nature of his defense.

The Act seriously undermines the rights of an accused person. The addition of indirect intimidation as a criminal offense, coupled with the presumptions included in the legislation, radically alter the burden of proof for the state and remove the presumption of innocence fundamental to a criminal justice system, recognized both in South Africa and in the Universal Declaration of Human Rights. The provisions concerning control of military or paramilitary organizations ignore the fact that the National Peace Accord recognized the right of persons to protect themselves and their property and to "establish voluntary associations or self protection units" to accomplish this. Many black townships have in fact organized self-defense units for the protection of the community in the face of repeated attacks by others and ineffectual protection by the police. In many townships, homeowners have been forced to flee their homes and police have done nothing to help them recover their property. The new legislation would allow the prosecution of those who participate in these units on the grounds that they are attempting to take over or usurp the functions of the police. Reports in 1992 suggested that some of these self-defense units were out of control and were intolerant of democratic opposition; the ANC announced that it was itself setting up a commission to investigate these allegations. If members of self-defense units are engaging in unlawful activities, adequate legislation already exists to charge them with criminal misconduct.

The creation of expedited procedures to try certain offenses is welcome only if fundamental rights of the accused are respected. Clearly the right of all persons charged with a criminal offense to be presumed innocent until proven guilty according to law is abrogated by the various presumptions included in this legislation. The legislative provisions compelling the accused specifically to admit or deny the summary of facts set forth in the State's indictment and enabling the court to draw an unfavorable inference from a failure to do so is a departure from the privilege against self-incrimination recognized under South African law and in many other countries. Although a legal aid system exists in South Africa, 85 per cent of all accused are not legally represented at trial.⁴⁹ Given the expedited nature of the procedure and the provisions compelling the accused to specifically admit or deny the prosecution's case, absence of counsel seriously undermines the ability of an accused to receive a fair trial. In addition, the ramifications of designating "special offenses" are so important to the accused's right to due process that the power to certify such offenses should rest with an independent judicial authority and not with an administrative division of government. Africa Watch recognizes that violence is endemic in South Africa and that few of those participating are convicted. However, a respect for human rights in the "new" South Africa cannot be developed by undermining those rights. As stated previously, increased efforts to improve police-community relations and more vigorous investigations by police could immediately increase the likelihood of obtaining convictions in violence-related crimes without infringing on the rights of the accused.

The government has also made attempts to reduce the overwhelming workload of the criminal courts, including the Decriminalization Act 1991. Among other things, this Act provides that a justice of the peace, a non-legally trained junior judge, may adjudicate a number of "decriminalized" offenses. In addition, the Internal Peace Institutions Act of 1992 includes provisions to enable justices of the peace to better assist in the promotion of peace at the local level and to assist LDRCs in their work. This Act provides for the appointment of a number of justices of the peace for a specific region whose exclusive function will be to prevent and combat violence and intimidation. In July 1992, the Justice Ministry distributed a package of information on qualifications required for the position of justice of the peace and explained their functions. The Justice Minister called on "all communities of South Africa to identify persons who are held in high esteem by the community and who meet the requirements of a justice of the peace, for appointment as justices of the peace in their district."⁵⁰