In an article that appeared in the Daily Maverick on Wednesday the journalist Ranjeni Munusamy made the claim that, regardless of his role in the transition to a democratically elected government, former President FW de Klerk had "destroyed any chance of history being kind to him by censoring the TRC report, blocking out sections that referred to his culpability in Apartheid crimes."
This is a reference to De Klerk's court action in October 1998 to challenge the TRC's finding, in its report, that he had been an "accessory to the commission of the gross violations of human rights." At the 11th hour the Commission agreed to delete the finding and, as the report was already at the printers, it appeared in blacked-out form in the printed publication.
Munusamy's claim raises two obvious questions. Firstly, what was the basis for the TRC's finding against De Klerk - apparently now hidden forever behind that black ink? And, secondly, does De Klerk's court challenge to it really destroy the possibility of history ever being kind to him?
Background
At the centre of the TRC's finding against De Klerk - which will be analysed further on - was the September 1 1988 bombing of Khotso House, the headquarters both of the South African Council of Churches (SACC) and the United Democratic Front.
In June 1998 former Law and Order Minister Adriaan Vlok testified to the TRC that in mid-1988 he had had a private meeting with State President PW Botha on a strictly need to know basis. In the meeting they discussed the fact that the "SACC and its facilities, including Khotso House was being misused by ANC insurgents and activists" then seeking the violent overthrow of the state." "Not only was the security of the State threatened," Vlok testified, "but the lives of innocent South Africans as well."
Vlok then testified that Botha had told him: "We cannot act against the people, you must make that building unusable. Don't let them use that building. I remember this clearly. He furthermore also said and I can recall quite correctly, whatever you do, you must make sure that no people are killed. He didn't say how it had to be done, he just said what had to be done."
The instruction was then passed on to General Johan van der Merwe, then Chief of Security, Security Branch - and later National Commissioner of Police - with the admonition that he had to make sure that nobody be killed or injured. Responsibility for carrying out the operation was, according to the TRC, then passed on to the C1 unit headed by Eugene de Kock in co-operation with the Witwatersrand Security Branch.
The detonation destroyed the building, which was empty at the time the explosion occurred, with just over twenty people in the vicinity treated for shock and minor injuries. In January 1989 Vlok cynically tried to pin blame for the bombing on Shirley Gunn, a member of the ANC underground, although security force involvement was widely suspected.
The involvement of De Kock and Vlok in the bombing was revealed in December 1994, though the details were still obscure. It was reported then, on the basis of an affidavit signed by a former policeman, that Vlok had, at an event held at Vlakplaas, congratulated the police team which had successfully carried out the operation (City Press December 4 1994).
De Klerk's submissions to the TRC
In his August 1996 submission to the TRC on behalf of the National Party De Klerk denied authorising the commission of gross violations of human rights such as assassination, murder, torture and so on. As he put it:
"In dealing with the unconventional strategies from the side of the Government I want to make it clear from the outset that, within my knowledge and experience, they never included the authorisation of assassination, murder, torture, rape, assault or the like. I have never been part of any decision taken by Cabinet, the State Security Council or any Committee authorising or instructing the commission of such gross violations of human rights. Nor did I individually directly or indirectly ever suggest, order or authorise any such action."
In October 1996 it was reported that Vlok and Van der Merwe would be applying for amnesty for their role in the Khotso House bombing. In its follow questions to De Klerk the TRC noted:
"Evidence has emerged that Adriaan Vlok, the Minister of Law and Order, was kept fully informed about operational activities. These included, inter alia, Vlakplaas operations and the bombing of Khotso House. Comment is invited on who should take responsibility for illegal operations undertaken by the security forces."
To this De Klerk replied in his second written submission:
"Once again, my views on the question of responsibility are clearly spelled out on pages 26 and 27 of my first submission and are quoted above. Minister Vlok will be in the best position to answer any allegations concerning the degree to which he was, or was not, informed about operational activities such as those involving Vlakplaas operations and the bombing of Khotso House. I have no reason to believe that he was party to anything more than that in respect of which he has applied for amnesty."
In his May 1997 testimony to the TRC De Klerk was challenged by Adv Goosen on his distinction between bona fide and mala fide security force operations. Goosen observed:
"The former Commissioner of Police, General Johan van der Merwe, has stated that he acted under the instructions of the then State President, P W Botha and Law and Order Minister Adrian Vlok, in ordering the bombing of Khotso House in 1988, under what category would such an incident have fallen?"
De Klerk replied, after noting that he couldn't be expected to pass judgement on each and every specific case, that:
"In the case of Khotso House, to the best of my knowledge and I'm not justifying the bombing of Khotso House, nobody was killed, nobody was murdered, there was serious damage to property and that would put it in a different category. No doubt those who applied for amnesty in that regard will put all the facts before you. I am not aware that my predecessor [PW Botha] has, as yet, accepted responsibility in the sense that he acknowledges that he actually did authorise it. I've read in the press that he has been presented with a set of questions and surely he's in the best position to inform you about that."
General Van der Merwe's testimony
In his July 1998 testimony to the TRC Van der Merwe told the Commission that sometime in 1991 De Klerk had given instructions "that investigations against members of the African National Congress and the SACP Alliance and also other freedom organisations with regards to the conflict of the past ... had to be stopped."
At the same time, however, the Goldstone Commission appointed by De Klerk, was investigating with the objective of prosecution, past crimes of the security forces, and the Special Branch in particular.
Van der Merwe said he had objected to the "unfair approach and at the same time I also said to Mr de Klerk that we were involved on instruction of the then government with regards to Cosatu and Khotso House and I did not want that my members who were involved with this would be investigated."
Despite his protestations, which were directed to Justice Minister Kobie Coetzee as well, the Goldstone investigations into the COSATU and Khotso House bombings continued. Van der Merwe had then approached ANC President Nelson Mandela to protest this unfair treatment. "President Mandela then undertook to liaise with Judge Goldstone which he apparently did because the investigation was stopped thereafter."
The following exchange then occurred:
MR DU PLESSIS: Do you know, are you aware of any other similar irregular actions, if I could call it that, by the security forces that Mr de Klerk was aware of at that stage before the elections? ...
GEN VAN DER MERWE: No, Chairperson. I'm aware of the Umtata incident but I would not say that it was irregular and I am not aware of anything else.
MR DU PLESSIS: And then General, I would just like to know from you if you have any explanation as to why Mr de Klerk did not in the first submission of the National Party, mention any of these facts there because he apparently was aware of it? ...
GEN VAN DER MERWE: No, Chairperson, we have to bear in mind this was not a gross violation of human rights and I think that submission was concerned with gross human rights violations.
In summary then, there was no suggestion that De Klerk had known of, or been party to the decision, to incapacitate Khotso House in 1988 while still an ordinary minister. No-one had, however, been killed or seriously injured in the bombing. As President he had appointed the Goldstone Commission, and vested it with formidable investigative capacity (something which the Harms Commission had fatally lacked), and this bombing had been one of the crimes placed under investigation.
President De Klerk had, according to Van der Merwe's testimony, been informed of government's hidden hand behind the bombing in 1991. However, the De Klerk administration had not intervened to stop Goldstone's investigation, Mandela had. Van der Merwe had also testified that De Klerk had not been informed of other "irregular actions" of the security forces.
The TRC's finding
This then was the factual basis on which the TRC chose to make its finding against De Klerk. The following is the full text of the TRC's blacked-out finding against De Klerk:
"Mr FW de Klerk presided as head of the former government in the capacity of State President during the period 1989 to 1994. On 14 May 1997, he testified before the Commission in his capacity as head of the former government and as leader of the National Party. In his submissions, Mr de Klerk stated that neither he nor his colleagues in cabinet and the State Security Council authorised or instructed the commission of unlawful acts.
104 Given the centrality of former State President de Klerk to the transformation of South African politics and his role in the 1990-94 period, the Commission has made the following finding:
THE COMMISSION FINDS THAT, WHEN MR DE KLERK TESTIFIED BEFORE THE COMMISSION ON 21 AUGUST 1996 AND 14 MAY 1997, HE KNEW AND HAD BEEN INFORMED BY HIS MINISTER OF LAW AND ORDER AND THE COMMISSIONER OF POLICE THAT THEY HAD BEEN AUTHORISED BY FORMER STATE PRESIDENT PW BOTHA TO BOMB KHOTSO HOUSE. THE COMMISSION FINDS THAT THE BOMBING OF KHOTSO HOUSE CONSTITUTES A GROSS VIOLATION OF HUMAN RIGHTS.
THE COMMISSION FINDS THAT FORMER STATE PRESIDENT FW DE KLERK DISPLAYED A LACK OF CANDOUR IN THAT HE OMITTED TO TAKE THE COMMISSION INTO HIS CONFIDENCE AND/OR TO INFORM THE COMMISSION OF WHAT HE KNEW, DESPITE BEING UNDER A DUTY TO DO SO.
THE COMMISSION FINDS THAT MR DE KLERK FAILED TO MAKE FULL DISCLOSURE OF GROSS VIOLATIONS OF HUMAN RIGHTS COMMITTED BY SENIOR MEMBERS OF GOVERNMENT AND SENIOR MEMBERS OF THE SAP, DESPITE BEING GIVEN THE OPPORTUNITY TO DO SO.
THE COMMISSION FINDS THAT HIS FAILURE TO DO SO CONSTITUTES MATERIAL NON-DISCLOSURE, RENDERING HIM AN ACCESSORY TO THE COMMISSION OF GROSS VIOLATIONS OF HUMAN RIGHTS.
6 Findings and Conclusions
THE COMMISSION FINDS MR DE KLERK MORALLY ACCOUNTABLE FOR CONCEALING THE TRUTH FROM THE COUNTRY WHEN, AS THE EXECUTIVE HEAD OF GOVERNMENT, HE WAS UNDER AN OBLIGATION TO DISCLOSE THE TRUTH KNOWN TO HIM."
Essentially then, the TRC found that De Klerk was an "accessory to the commission of gross violations of human rights" because he had failed to directly inform the Commission, in his submissions and testimony, that three years after the fact he had been informed of state involvement in the Khotso House bombing.
The logic required to reach this finding was somewhat tortured.
The TRC did not claim that De Klerk was either party to approving the operation, in 1988, or that he had been kept in the loop about state involvement at the time. Nor had he intervened to stop the investigation into the bombing, after having been informed of this fact.
The TRC's finding starts off by subtly misrepresenting what De Klerk had told the Commission in his original submission. It then proceeds to define/re-define the bombing of a building, in which no one was seriously injured, as a gross violation of human rights.
It then claims that De Klerk's failure to inform the Commission of when he knew about certain facts, which were already either in or entering into the public domain, constituted "material non-disclosure."
The Commission had not asked De Klerk when he was first informed of police involvement. Nor had he denied such involvement in his submissions and testimony. All he had said was that Vlok and Botha were better placed to answer the Commission's queries.
It is not clear then how this finding - such as it was - either proves De Klerk's "culpability in Apartheid crimes" or, how his legal challenge to it, destroys "any chance of history being kind to him."
The reality is that the TRC had invested extraordinary effort in trying to directly link De Klerk to the gross violations of human rights committed by the security forces under the PW Botha Presidency, as well "third force" activities by elements in the security forces in the early 1990s.
This, in the end, was all they had been able to come up with. And even then, it was not able to stand up to legal challenge.
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