Lawyers for Human Rights
Lawyers for Human Rights

The difficulty with De Kock

By Clare Ballard

By not releasing apartheid’s most notorious assassin, De Kock, we have released all those who benefitted from his actions …
— Tshepo Madlingozi

On Thursday, Justice Minister Michael Masutha conveyed his decision to refuse former death squad commander Eugene de Kock’s application for parole to the public. His decision, although unsurprising, is unusual for having gone against the respective recommendations of the National Council for Correctional Services and the Correctional Supervision and Parole Board (CSPB), which, in November 2013, recommended that De Kock be released on parole.

Parole determinations are notoriously covert processes. Presumably, however, the CSPB would have considered the submissions or reports of correctional officials who were privy to De Kock’s conduct and activities during his imprisonment, De Kock’s own submissions, and come up with a suitable recommendation. If rumour is to be believed, De Kock has, on all accounts, been a “model prisoner”. The minister justified his decision on the grounds that certain relatives of De Kock’s victims have not been given the opportunity to make submissions to the CSPB. The catch here, however, is that the law establishing the rights of victims in such circumstances had not yet come into effect at the time of the handing down of De Kock’s conviction and sentencing, rendering it inapplicable to his parole determination.

Gallo

Gallo

But permitting the hearing of submissions by those affected by De Kock’s crimes is not inconsistent with parole determinations generally. Certainly, where victims have made known their intention to be heard at parole determinations, the state should willingly facilitate this process. The Criminal Procedure Act requires the court, at the time of sentencing an offender convicted of a particular crime (the Act lists the more serious offences: murder, rape, sexual assault, kidnapping etc), to inform victims or relatives of a deceased victim of their right to make representations when placement of the prisoner on parole is considered.

It is unclear whether De Kock’s victims did this, however. The problem with the state assuming the role of instigator in such circumstances, as it appears the minister has done, is that it then owes all similarly placed victims the same opportunity. No victim is more deserving of the opportunity to make representations than another. The right to equal treatment before the law (Section 9 of the Constitution) requires uniformity in precisely these circumstances. And the administrative burden of the state having to seek out all victims of serious crimes whose perpetrators were sentenced before March 2005 (the date on which amendment permitting victims’ submissions came into effect) would be overwhelming to the point that it would almost certainly fail. Importantly, it is the sentencing court that, based on the gravity of the crimes, determines the length of the sentence. The executive is then charged with the administration of that sentence, which includes determinations on parole. The latter process requires only an examination of the offender’s time spent in prison.

I find it hard to believe that the De Kock’s victims were unaware that his parole date was approaching. The media certainly did. But the state chose to get around this rather uncomfortable problem by postponing the parole decision and taking on an additional requirement to the perpetrator’s sentence in circumstances where he was not at fault. Who cares if De Kock is incarcerated for another year? Probably not too many of us. But that is, perhaps, what makes a decision that disregards the Bill of Rights so easy for the state to make.

De Kock’s release symbolises some devastating truths of which we need to be reminded. The first of these is that to date, and as De Kock has reminded us on several occasions, he is the only former apartheid official to have been punished criminally for his actions. It has been several years since more than 100 individuals were identified as having been implicated in apartheid atrocities but failed to take advantage of the Truth and Reconciliation Commission process. What of their victims? Secondly, the process of payments from the President’s Fund as reparations for harm suffered has been stalled, despite the fund being valued at more than R1.1 billion in 2013. Thirdly, the large-scale community-based dialogue intended to proceed as a form of healing and rehabilitation, has never happened. Monuments, yes. Dialogue, no.

De Kock’s prolonged incarceration makes it all a little bit too easy to deal with, doesn’t it? As long as the state’s prized apartheid criminal is behind bars, so too is the rather inconvenient truth.

Clare Ballard is an attorney with the Penal Reform Programme at Lawyers for Human Rights.

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    • Dillon

      In the absence of the death penalty, let life mean LIFE!!! If not in this case, then where is it anymore appropriate?

    • Joseph Coates

      .Should the death penalty be re instated for vicious crimes, a life for a life. Just maybe
      our jails would be less populated and those serving sentences for petty crimes should be rehabilutated with apt working skills so they can get another second chance.
      Murder of any degree should gert life or the lethal injection.
      We are far too slack in this aspect.

    • http://necrofiles.blogspot.com Garg Unzola

      @Joseph:
      Do you really want to give the oppressive ANC government the legal right to kill its own citizens? They’re suggesting licensing journalists and regulating news to ensure that it’s 70% good news all the time.

      Reinstating the death penalty would just give the ANC the power to do what De Kock did under the previous regime.

    • http://yahoo Donald Mathray

      @Clare Ballard
      As an attorney you would understand that if ” the law establishing the rights of victims in such circumstances had not yet come into effect at the time of the handing down of De Kock’s conviction and sentencing, rendering it inapplicable to his parole determination.” then you would appreciate that de kock committed the crimes during aparthate so he should hang! Full Stop!!!

    • Cam Cameron

      Capital — and corporal — punishment have both been ruled unconstitutional in unanimous verdicts from a full bench of the Constitutional Court. No purpose is served by yearning for its return or speculations based on an impossible “what if”.

      If those who want it back want it in order to “save money”, they clearly have more respect for their own wallets than for human life.

    • Khethiwe Marais

      Please free De Kock. I too know people who lost their loved ones through De Kock’s direct and/or indirect actions. I too know people who lost their lives in his hand. I am not pleading for his release lightly. I think he has paid his price, he has admitted his guilt, he is remorseful. He has revealed much of his evil deeds as a police under the apartheid government much more than any other perpetrator under apartheid. His commanders and superiors are roaming around this country freely. They have never accepted responsibility or guilt of what they did, commanded, supported and financed him to do. They have never faced justice, lawsuit or even civil claims. De Kock was a dedicated foot soldier carrying out the decisions, wishes and whims of the apartheid government and protecting the interests of the majority of the white people in this country. Apartheid served the interests and privileges of the majority of white people and benefited them immensely. Apartheid government policies and actions were supported and funded by the majority of white people in this country. They have never acknowledged their collective responsibility and support for the environment that created the character of De Kock. In any case it is wrong to pile up decades of apartheid evil deeds onto one man.

    • John

      I have always been baffled by the unenviable situation in which Eugene de Kock found himself. He was an operative who carried out orders. It is not clear to me what steps the State took to ‘streamline’ the channels of command in the activities of this present prisoner. I know, though, that General Malan was tried and found ‘not guilty’ and discharged.
      Though I am a former activist myself, I deeply feel that the incarceration of Eugene is an unfortunate typical miscarriage of justice. It has always been my fervent wish to meet the man himself.

    • Joseph Coates

      @ Garg Unzola – thank you for comment but I think the current government does as it pleases regardless of what the majority feel or think about any issue concrnong the general public.

    • Jans de Jager

      By the Lord’s decree you will be judged how you judge others. It is basic practice in war to punish the commanders of human rights violations, not the footsoldiers. De Kock’s kangaroo court appearance and seemingly headlong rush towards the electric chair (saved at the last minute) points to a man whose fate was to be swept under the carpet by the previous regime, and consequently paraded as albatross around the neck by the new dispensation. If De Kock did not act of his own volition it is only fair that he confesses the truth and be freed as reward. If not, his case for early release should be put to the court of law.