JAUNDICED EYE

Yes, sure I would have flipped the switch that dropped the trap. The hangman’s trap.

We are talking about Janusz Walus here. My pleasurable flight of fantasy of Walus being permanently disposed of follows the most recent decision, this time by Minister of Justice Ronald Lamola, not to release Walus on parole.

Walus murdered SA Communist Party leader Chris Hani. The 1993 assassination of the charismatic Hani took South Africa to the brink of a race conflagration. 

It was a remarkably inept murder. Walus shot Hani in his driveway in broad daylight using a handgun — licensed to the chief plotter — which he failed to dispose of and with which he was caught redhanded. Walus fled the scene in a car that could be traced to him, and of which he had not concealed or changed the licence plates.

There’s admittedly very little research to support the thesis that capital punishment helps to reduce violent crime. But prevention is not the only reason for an ultimate penalty. There's also the right of the state — still exercised by many nations — to seek the ultimate retribution for particularly barbaric or dangerous behaviour.

One can think of the death penalty as a mouthwash. Sometimes the taste in a society’s mouth is so foul that the only way to get rid of it, is to gargle and spit.

Walus was phlegm, deserving of abrupt expulsion. The killing of Hani was premeditated and despicable, calculated to unleash a civil conflict that would give rightwing forces the opportunity to seize power.

Walus was sentenced to hang, as was the man who led the plot and provided him with the gun, the Conservative Party MP Clive Derby-Lewis. Fortunately for both men, before the sentence could be carried out, South Africa’s new Constitutional Court dispensed of the death penalty as not suitable for a fresh-faced democracy now committed to human rights. 

As Constitutional Court president at the time, Arthur Chaskalson, wrote in that landmark judgment: “Everyone, including the most abominable of human beings, has a right to life … Retribution cannot be accorded the same weight ... as the right to life and dignity.”

The Walus and Derby-Lewis sentences were commuted to life imprisonment, which made them eligible for parole in 2010, after serving 15 years in prison. (A life sentence is undetermined in SA but it's a minimum 15 years for a first murder, a minimum of 20 years for a second, and a minimum of 25 years for a third murder.)

The duo’s attempt at getting amnesty from the Truth and Reconciliation Commission did not succeed. The TRC decided that this had not been a political act and it felt that it could not with certainty determine whether they had made full disclosure.

From 2010 on, as a matter of rote, the two made regular parole applications, which were as routinely rejected. Eventually, after three attempts at medical parole because of cancer, Derby-Lewis was released in mid-2015 after 20 years imprisonment. He died 18 months later, aged 80.

Walus continued knocking at the firmly barred parole door. In 2013, the Parole Board recommended his release, but it was turned down by the justice minister.

In 2016, the Gauteng High Court accepted his counsel’s argument that Walus' continued incarceration was “irrational and unreasonable” and ordered his release, noting irregularities in the process by which the decision of refusal had been reached. On appeal, the Supreme Court overturned this ruling, saying that while there were irregularities, the Justice minister simply had to remedy them and reconsider his decision. 

This is what the Justice minister duly did and then, predictably, reached exactly the same conclusion. No parole.

There understandably has been strong resistance to Walus' parole from the Hani family, the SACP, and the African National Congress. Even the official opposition, the Democratic Alliance, climbed on the no-parole bandwagon, eager to hijack some street cred. 

The antipathy to parole is based on those very same human emotions — vengefulness and a desire for retribution — that the Constitutional Court said we should eschew. The actual refusals, however, have been dressed in various flimsy arguments, varying from parole refusal to parole refusal, often with the most recent justification contradicting the previous.

This time around, Lamola says that he was influenced by the submissions from Hani’s widow and the SACP. Also, parole would negate the severity that the court sought in sentencing him in 1993, when it found no mitigating factors to the deliberate and cold-blooded killing.

The position of the Hanis is that Walus has never apologised nor shown genuine contrition. They and the SACP also argue that he was part of a much wider conspiracy, which he needs to come clean on.

While Lamola rightly should take into account the feelings of the secondary victims of the slaying, the Hani family's first argument is shaky. Walus has repeatedly over the years tried to meet with the Hanis for them to hear, he says, his confession of culpability and remorse, and his plea for forgiveness. They have consistently refused.

In any case, Lamola concedes that not only has Walus been a model prisoner who is unlikely to re-offend, but, most importantly in terms of the Hani objections, that he has shown genuine remorse. Having now inadvertently demolished the first pillar of the opposition to parole, Lamola doesn’t in any way address the second pillar, the as-yet-undisclosed full extent of the assassination plot. 

That’s probably a good move on the part of Lamola, since this is a rats’ nest of conspiracy theories. On the one hand, there are claims that the apartheid government and various international rightwing, anti-communist organisations were involved. On the other hand, there are claims, including from within the SACP and ANC, that Hani was killed because he was about to expose the corrupt activities of former ANC Defence Minister Joe Modise and high-ranking party colleagues.

So, having dodged that bullet, Lamola opted instead for a whole new set of sophistry. If indeed he were to release Walus on parole, says Lamola, it would have to be on the basis of the legal regime operating at the time of the crime.

“This implies that ... he would be on parole for a maximum period of three years, less any possible remissions for which he might qualify... [That] would negate the severity that the court sought when sentencing him.” 

This is legal nonsense. While parole is not a right, it is not dependent on the sentencing court having found mitigating circumstances. Lamola also ignores the fact that Walus has been stripped of his SA citizenship. Upon release, he would immediately be deported to his land of birth, Poland.

For some murky reason, the Justice Department has always denied that such deportation could happen, describing it as a “highly irregular” move during a 2018 court hearing. Walus’ counsel demolished that assertion, pointing out that just a month earlier, the SA government had paroled and deported two Taiwanese nationals who had murdered a woman, then boiling the body and feeding it to lions.

There is a transparent circularity to much of the reasoning as to why Walus — who has now been in jail as long as Nelson Mandela — should not be paroled, that smacks of desperate political expediency. One wonders how these arguments would stand up to even-handed scrutiny by a Constitutional Court that has explicitly rejected excessively retributory justice.

At some point the judiciary is going to have to rule on whether Walus is being justly treated with these parole refusals, instead of repeatedly seizing on technicalities in order to kick for touch. It is in this manner that the TRC, the Gauteng High Court, and the SCA have all, in turn, avoided having to deliver a possible judgment that will dump them in public odium, as well as disfavour with the government.

Walus is undoubtedly a nasty bit of work. But because of persistent political interference he is being denied rights that no other murderer, to the best of my knowledge, has been deprived of.

If the original sentence had been carried out in 1993, it would have been all over for Walus, quite deservedly, with the flip of that switch and the clang of that trapdoor. Instead, the 2020 reality is that Walus is still facing the death penalty, it’s just that the state is going to implement it very, very slowly, as the 67-year-old is discovering.

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