Justice Gained?: Crime and Crime Control in South Africa's Transition

Justice Gained?: Crime and Crime Control in South Africa's Transition

by Elrena van der Spuy, Wilfriend Scharf

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Product Details

ISBN-13: 9781919713717
Publisher: University of Cape Town Press
Publication date: 09/28/2004
Pages: 352
Product dimensions: 6.75(w) x 9.75(h) x 0.70(d)

About the Author


Bill Dixon is a lecturer in the department of criminology at Keele University in the United Kingdom. Elrena van der Spuy is a senior lecturer at the department of criminal justice, faculty of law at the University of Cape Town and former director of the Institute of Criminology. In collaboration with the United Nations Office on Drugs and Crime in Pretoria, she conducts research into the form, content, and impact of international developmental assistance in support of criminal justice reform in southern Africa.

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Justice Gained?

Crime and Crime Control in South Africa's Transition


By Bill Dixon, Elrena Van Der Spuy

Willan Publishing

Copyright © 2004 UCT Press
All rights reserved.
ISBN: 978-1-919895-63-5



CHAPTER 1

'A SNAKE GIVES BIRTH TO A SNAKE':

Politics and Crime in the Transition to Democracy in South Africa

GRAEME SIMPSON


1 INTRODUCTION

'A snake gives birth to a snake.' This Zulu proverb was quoted by Victor Mtembu, a member of the Inkatha Freedom Party (IFP), during the course of his amnesty application for his involvement in the infamous Boipatong Massacre. He proffered this in partial explanation of the political motivation for the murder of an eight-month-old baby along with the baby's mother in the course of the massacre. Mtembu and his 16 co-conspirators were granted amnesty on the basis that they were deemed by the Truth and Reconciliation Commission's Amnesty Committee to have satisfied the requirements of the Promotion of National Unity and Reconciliation Act 34 of 1995 (hereafter referred to as 'the Act', or 'the TRC Act'). These included the critical requirements that applicants must make full disclosure of what they had done, and demonstrate that the acts for which amnesty was sought had been committed with a political motive, and in the name of â known political organisation.

In and of itself, this brief account of but one case gives ample substance to the moral and legal controversy that surrounded the TRC's amnesty process in South Africa. In particular, it draws attention to the argument that this process compromised rather than enhanced endeavours to rebuild the credibility and integrity of a justice system inherited from apartheid. On the face of it, the concern was simply that, in the name of political reconciliation, this process may have fostered a sense of impunity based on an alleged failure to respect the norms and standards of international law regarding such gross violations of human rights (Orentlicker, 1991; Roht-Arriaza, 1990; Cachalia, 1992; Africa Watch, 1992). However, it is arguable that the amnesty process also created a situation in which it was unreasonable to expect post-apartheid South Africa's criminals miraculously to acquire a respect for the rule of law when political assassins from the past were seen – quite literally – to have got away with murder. Of course, it might equally be argued – as indeed it was in the judgment of the Constitutional Court in the case of AZAPO and Others v The President of the Republic of South Africa and Others (1996) – that the remote prospect of achieving a successful prosecution in most cases might well have resulted in an even worse state of affairs, and that, in any event, these compromises of principle were essential to the very birth of South Africa's new democracy.

However, the Boipatong massacre, and the role of Victor Mtembu and his coconspirators in it, demands an even closer scrutiny of the TRC's amnesty process and the legislation that underpinned it. This analysis must reach beyond the somewhat sterile debates over the relationship between the need for national reconciliation and the demands of retributive justice that dominated the early literature on the TRC and transitional justice in South Africa more generally. In particular, this controversial tool of transitional justice was designed to serve a process of political reconciliation in South Africa. As such, it relied on an ability to distinguish clearly between politically motivated and purely criminal violence during the apartheid era. What the Boipatong massacre example clearly demonstrates are the dramatic dilemmas presented by the reality that the dividing line between politics and crime under apartheid was blurred and cannot easily be navigated either by reference to neat theoretical distinctions or by means of the clumsy quasi-judicial proceedings of the TRC's Amnesty Committee. Indeed, it is arguable that such a clear distinction between political and criminal violence was only sustainable by constructing a somewhat sanitised version of the past. And this in turn was often heavily dependent on accepting the existence of a deep chronological divide – drawn along the line of South Africa's first democratic elections in April 1994 – separating an era of brutal political conflict from a new age in which political strife had all but ceased, only to be replaced by equally pervasive violence of a strictly anti-social and criminal nature.

This chapter will critically analyse the South African TRC as an innovative approach within the evolving field of 'transitional justice'. By reference to the commission's amnesty process, it will be argued that, in its attempts to separate politics and crime for the purposes of building reconciliation at a political level, one of the greatest flaws of the TRC was its failure properly to engage with the complex nature of criminality. Not only did the amnesty process ignore many of the complexities consequent upon the historical criminalisation of political activity, but it was also incapable of accommodating the extent to which the politicisation of crime represented the other side of the same coin.


1.1 Transitional Justice and Criminal Justice Reform

This analysis has vital implications for the interface between the fields of criminal and transitional justice. Indeed, these competing approaches to justice – dominated by debates over the respective merits and priority of punitive and restorative models of justice – lie at the heart of South Africa's negotiated transition to democracy. These sometimes facile but occasionally fascinating debates have played themselves out most overtly as South Africa's attempts at national reconciliation have progressed, particularly through the work of the TRC. However, these discourses have been less obvious – but equally central – to the workings of South Africa's criminal justice system, and within the country's criminal courts. Thus, within the broad national endeavour of post-apartheid reconstruction, two fundamentally integrated challenges have faced South Africa's embryonic democracy. The first of these has been viewed largely as a retrospective exercise in building reconciliation in the field of transitional justice, while the other has focused on dealing with current (or future) crime problems by means of criminal justice reform. On one hand, the transitional justice enterprise has been framed by a supposedly victim-centred process of reconciliation based on truth recovery, public victim testimony, reparation and a highly controversial conditional amnesty for perpetrators of past human rights abuses. On the other hand, the aim of the criminal justice reform agenda has been to restore the rule of law and render the delivery of criminal justice and crime prevention more efficient in the face of excessively high rates of violent crime by overcoming the legacy of public mistrust in the justice system inherited from the undemocratic regime of the past and rebuilding the credibility of politically compromised institutions. Needless to say, these two distinct challenges have frequently given rise to potentially competing priorities. Yet it is not merely on the basis that one is seen as retrospective and the other as forward looking that the priorities of transitional justice and criminal justice reform have been dealt with as if they were entirely detached from each other. It is perhaps more significant that this detachment is also based on the implicit assumption that, while one is concerned with dealing with past violence of a political nature, the other is viewed as the solution to current problems of crime in general, and criminal violence in particular.

It is contended here that such artificial boundaries are entirely dysfunctional to the task of learning what can truly be learned from attempts to achieve justice within South Africa's transition to democracy. More importantly, it is argued that the neat dividing line between political and criminal violence is a crude one that is difficult to sustain in a manner helpful either to criminologists or political scientists (see Cohen, 1996). It is also interesting that in another context – that of an analysis of South Africa's so-called Third Force – Stephen Ellis (1998: 296) reaches much the same conclusion: 'One of the conclusions we may draw from a survey of the last 30 years of South African history is that politics and crime are inter-connected and are not always amenable to conventional analyses, one in the discipline of political science, the other in that of criminology'.

The implicit challenge of this chapter is, therefore, to force criminologists and criminal justice reformers to engage more fully with all the dilemmas of justice in transition, and particularly with the manner in which the legacy of politically motivated and state crimes is understood. By the same token, those primarily concerned with mechanisms of transitional justice designed to build lasting reconciliation are confronted with continuities in the violence that still disfigures South African society, even though, in the current post-democratisation phase, it is largely dismissed as criminal rather than political. It demands that those who frame their engagement as exclusively dealing with past violence of a political nature define the boundaries of transitional justice more broadly if they are to make the most of their confrontation with the challenges of transition from autocracy and civil conflict to emergent democracy. Indeed, it is argued here that the distinction between political and criminal violence, which often provides the rationalisation for the impermeability of the boundaries between criminology and political science (and criminal and transitional justice), is itself largely illusory and premised upon versions of history that have purged a politically fraught past of its inherently criminal pathologies.

These dilemmas of justice in transition are exacerbated by some of the hidden liabilities embedded in the very nature of South Africa's negotiated political settlement. Firstly, as has already been noted, the new democratic government inherited its criminal justice institutions (along with a legacy of popular mistrust and a history of human rights violations) largely intact from its undemocratic predecessor. This went hand in glove with a fundamental compromise in the negotiations process summed up in agreement on a sunset clause that protected the jobs of all incumbent civil servants for at least the first five years of democratic rule, but left the post-apartheid government dependent on the whims, (in)competence and (non)co-operation of old-order bureaucrats for the implementation of its new vision-based policies. To this must be added the agreement on a conditional amnesty for past violators of human rights, administered by the TRC, which is the primary focus of this essay. A fourth factor was that the transformation of state institutions had to take place in a context of fiscal constraint and negative economic growth in which budgets that had previously been used to service the minority white population now had to be stretched to meet the needs of over 40 million South Africans of all races. Fifthly, the political dynamics of the negotiated post-apartheid settlement frequently served to define reconciliation by reference to the party-political process associated with formal democratisation. Implicit in this was the danger that such political processes might dismantle the scaffolding of apartheid society, yet fail to engage directly enough with the socio-economic needs, the experiences of race, class and gender, and the complex identities and historical traumas of ordinary South Africans. Finally – and as if to add insult to injury – far from this political settlement resulting in an end to violence, the negotiations process and the eventual transition to democracy brought little respite from the high levels and cyclical patterns of violence experienced in the final years of apartheid. Thus, in all these respects, the conditions that face South African society in the transition from autocracy to democracy present some unique challenges, which demand a sustained effort to reach beyond the frame of reference of conventional, narrowly construed criminological paradigms.

Considering the magnitude of the task of transforming and rebuilding popular confidence in inherited criminal justice institutions, it is particularly clear that strategies to deal with violent victimisation cannot operate exclusively within the sphere of criminal justice. Such a narrow approach cannot effectively begin to address the more generalised experiences of victimisation premised on more than mere perceptions of state institutions as remaining illegitimate or unaccountable. In South Africa, attempts to address the experiences of violent victimisation in the post-apartheid era are conventionally framed by reference to the extent to which the existing criminal justice process either fails or alienates those victims who encounter it. This is usually understood in terms of the experiences of people inside the criminal justice process, rather than by reference to the wider impact of unresolved residual trauma, ongoing cyclical patterns of violence, shifting patterns of social conflict and the embedding of identities in which violence is a way of life. The more expansive popular perceptions of the role of the institutions of criminal justice must be situated in this wider context. In contrast to the narrow approach adopted by criminal justice reformers, it is argued here that, in South Africa, violent victimisation must be understood as a societal problem rather than a purely individual experience. It is not solely the product of institutional failings and cannot, therefore, be remedied by institutional transformation or formal political processes alone.


2. THE POLITICS FITS THE CRIME

From the pages above, it is clear that – in the wake of the TRC, and the party political settlements and democratic election that paved the way for it – there are serious pitfalls in simplistically describing South Africa as a 'post-conflict' society. Instead, the real challenge in assessing transitional justice interventions lies in monitoring and grappling with both the changing patterns of violence and social conflict that dominate post-apartheid society, and the easy slide across the boundaries between political and criminal violence that have always complicated analysis of South African life. Therefore, by penetrating the veil of continuity and change in the patterns of violent social conflict in South Africa, this chapter points to some of the (perhaps inevitable) limitations of the TRC as a mechanism of restorative justice in the true sense of the term. These limitations are embedded in its historical imperative and its explicit mandate to deal with the issues of violence and reconciliation exclusively by reference to issues of political responsibility, narrowly defined. To the extent that the TRC is seen as one of the founding moments in the building of a new nationhood in South Africa; to the extent that the commission is understood as a primary mechanism for resolving past conflicts and ending violence; and to the extent that it is promoted as the pre-eminent means of achieving national reconciliation, this chapter will argue that the TRC has, at best, only begun a process that still confronts a range of unresolved challenges. At worst, it is suggested that the political context that gave rise to the remarkable creativity and innovation embodied in the South African TRC may nonetheless have contributed to framing a somewhat narrow understanding of restorative justice and violence prevention, based on a rather static perspective on the nature of violent conflict in South African society.

It is, therefore, my view that proper evaluation of the efficacy of various transitional justice mechanisms in South Africa must be situated within the specific context of transmuting patterns of political and criminal violence. This demands that we shift the debate on transitional justice from the exclusively retrospective scrutiny of past injustices (important as this is), to a strategic and proactive engagement with the challenges that face all justice institutions in newly emerging democracies. This in turn demands a recognition that, rather than simply ending once a political settlement has been reached, patterns of violence and social conflict change. Nor do the lines of social cleavage that lie at the heart of historical violence stay the same, but are reframed and redefined under new political conditions. Thus, such an approach calls for an engagement both with the past and with the future, and insists on not only a scrutiny of justice in transition, but of violence in transition as well.

Orthodox histories of political conflict in South Africa often risk sanitising the consequences of the criminalisation of an urban working class through a succession of laws that were themselves illegitimate, but which increasingly sanctioned, and indeed rendered it noble, for the black majority of South Africans to be on the wrong side of the law. The social history of the apartheid era is in fact an account of massive and widespread dislocation in which human beings were forced to endure lives in the most precarious and depraved of settings, punctuated by daily violence and violation. By comparison, orthodox political history tends to portray a twentieth century in which the polite voices of protest continued to fall on deaf ears until rationally, and in sober knowledge of the gravity of the decision, this protest turned to violent resistance. This version of history frames a liberation discourse which then reached out to the popular classes – the industrial working class, the urban youth and the rural poor – with the result that, eventually, most of black South Africa was galvanised in a moral and well-orchestrated struggle against the apartheid regime, which, in turn, systematically mobilised the full force of the state against the politically voiceless majority. This simple political narrative is particularly striking in the way that it cleanses both liberation politics and state violence – associated as they were with the fortunes of particular political parties and movements – of the criminal pathologies of South Africa's distinctive social development. The pervasive violence of everyday social life finds little complex expression here and the extent to which the criminalisation of politics and the politicisation of crime have been – and still are – two edges of the same sword is too readily ignored.


(Continues...)

Excerpted from Justice Gained? by Bill Dixon, Elrena Van Der Spuy. Copyright © 2004 UCT Press. Excerpted by permission of Willan Publishing.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents

Acknowledgementsv
Notes on Contributorsvi
Introduction: Justice Gained? Crime, Crime Control and Criminology in Transitionix
1'A Snake Gives Birth to a Snake': Politics and Crime in the Transition to Democracy in South Africa1
2Out of the Mainstream: Critical Reflections on Organised Crime in the Western Cape29
3Guns and Public Policy in South Africa58
4Murder and Capital Punishment After Apartheid83
5Child Justice and Diversion: Will Children's Rights Outlast the Transition?114
6Acting Against Domestic Violence140
7Cosmetic Crime Prevention163
8South African Policing Studies in the Making193
9Swimming Against the Tide: Controlling the Size of the Prison Population in the New South Africa227
Index259

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