sign in sign up
<<
Home , Amnesty law

6

AMNESTY IN SOUTH AFRICA: THE ASSERTION OF AN AMNESTY EXCEPTION TO THE GENERAL PROHIBITION OF AGAINST HUMANITY

Introduction

Like many post-political con ict amnesties, the South African amnesty was the product of a political compromise, which later received legal validation from the competent national authorities. However, like any other political enterprise of this kind, the South African indemnity system cannot be said to have been a perfect institution, hence the various criticisms that surrounded its operation. Among these is the Constitutional ’s argument in the AZAPO Case, which held that amnesty constitutes an exception to peremptory norms of jus cogens and that an takes precedence over such norms. In light of the South African experience, this chapter will attempt to examine the legal of amnesty nationally in respect of the core crimes under interna- tional law. This will be done by arguing that in most cases national objectives of reconciliation as well as national are heavily relied upon as a yardstick in the process of assessing the lawfulness of amnesty , whereas recourse to is made in a selective manner so as to advance immediate national interests. It will be contended that any evaluation of the lawfulness of amnesty with respect to core crimes such as war crimes, , terrorism, torture and should not disregard the importance of international law, which is an integrated system of law that does not only prohibit the commission of such crimes, but also reject all forms of exception to the prohibition thereof.

Faustin Z. Ntoubandi, Amnesty for Crimes against Humanity under International Law, pp. 151–183. © 2007, Koninklijke Brill NV. Printed in The Netherlands. 152 CHAPTER 6

Political Background to the South African Amnesty

Brief History of

The policy of apartheid was introduced in South Africa in 1948 after the Afri- kaner-dominated National Party (NP), led by Dr. Daniel Malan took over the reign of power. Apartheid had two signi cant features: complete racial segregation and ethnic ‘self-determination’ within the homelands.1 This involved the separation of every facet of life: residence, amenities, transport, education and politics. Soon after its successful election, the NP government adopted a series of measures aimed at institutionalising the Afrikaner’s ideology of apartheid. Among these were the Prohibition of Mixed Marriages Act passed by Parliament in 1949, which outlawed marriages between South Africans of European origin and other South Africans. Next, came the Population Registration Act, designed to allocate every person to one of three racial groups: White, Coloured or African. This Act was considered a cornerstone of apartheid.2 The Suppression of Communism Act, the Group Area Act, the Native Labour Act, the Black Affairs Administration Act, the Labour Restriction Act, the Bantu Education Act, the Separate Amenities Act, the Terrorism Act, the Riotous Assembly Act, the Gathering and Demonstrations Act, the Protection of Information Act, the Publication and Control Act and the various Pass Laws followed.3 The NP further consolidated its power as well as its ideology by removing all non-whites from the electorate.4 The rst wave of public protests against the apartheid system started in the 1950’s. Thus, in June 1952, two political organisations, the ANC and the South African Indian Congress, responded to the Government’s segregationist measures by organising a passive resistance campaign against the apartheid system. A Freedom was adopted on 26 June, 1955 which called for the recognition of equal- ity among all South African national groups as well as of equal rights.5 In 1959, the Pan-African Congress was founded as a forum for all African opponents to apartheid. On 21 March, 1960 a peaceful protest march, organised in Sharpeville in reaction to the pass laws, was brutally repressed by the security forces, which left 67 demonstrators killed, 186 wounded and thousands arrested.6 The condemnation of apartheid grew world-wide in the 1960’s. The Organisa - tion of African Unity (today’s African Union) implicitly banned apartheid in its

1 A. Schlunck, chap. I, n. 3 at 189. 2 See M. Meredith Nelson Mandela: A Biography (1997) at 81; also A. Krog Country of my Skull (1998) at 106. 3 M. Meredith, n. 1 at 93; see also A. Krog, n. 1 at 106. 4 See e.g., The Separate Registration of Voters Bill introduced in March 1951 removed the Coloureds of the Cape Province from the common roll by which they had been entitled to vote since 1853. 5 A. Schlunck, chap. I, n. 3 at 189, quoting T.G. Karis. 6 M. Meredith, n. 1 at 173.