24 March, 2006

  Dear Minister,

  AMENDMENTS TO SOUTH AFRICA’S PROSECUTIONS POLICY

  I am writing to you about the recent amendments to South Africa’s prosecutions policy relating to matters arising from the conflicts of the past which were committed before 11 May 2004.  The International Bar Association (IBA) has 30,000 lawyer members and almost 200 organisational members (Bar Associations and Law Societies).  It is especially involved with matters relating to the rule of law, human rights and the ability of judges and lawyers to practise their profession freely.

  The IBA is particularly concerned that the amended policy will require the National Director of Public Prosecutions (NDPP) to exercise prosecutorial discretion in a way which effectively replicates the truth for amnesty procedure under the former Truth and Reconciliation Commission.  That process was justified on the ground that South Africa’s distressing past required a firm and generous commitment to reconciliation and national unity if a new democratic order was to be built.  The Interim Constitution provided for a limited amnesty, to be regulated by law, setting up transparent mechanisms and procedures.  The 1996 South African Constitution retained the provisions relating to amnesty, but only for the purposes of the Truth and Reconciliation Commission. The criteria on which the NDPP will exercise discretion to prosecute are set out in the new policy at sub-paragraphs C3(a)-(j). These are the same as those set out in the Truth and Reconciliation Commission Act with respect to amnesty.   To use these criteria to assist in the prioritisation of cases would be legitimate.  To use the criteria to assist in the exercise of a discretion not to prosecute would amount to an effective continuation of the old amnesty regime and amount to impunity for crime.

  The Truth and Reconciliation Commission provided for a truth for amnesty formula for a specific and limited time period.  An effective extension of this adversely effects the victims who have been waiting for the prosecution of those who failed to apply for amnesty or who were denied amnesty. To the best of my knowledge, no South African law authorises a decision not to prosecute in exchange for full disclosure, particularly in the absence of a plea bargain or an agreement by the perpetrator to become a state witness.

In particular, the IBA is concerned that:

• The new policy is not a law, but creates a prosecutorial discretion.
• The NDPP is under no obligation to make public any full disclosure made or any information about the conflicts of the past which arise from the process.
• There is no statute of limitations or prescription on the crime of murder, yet this new policy permits the NDPP to decline to prosecute murder.
• This in effect promotes impunity for crime.
• The rights of victims are undermined.
• The suspension of a rule of law which was justified to meet the transitional imperatives of the Interim Constitution cannot be justified under the 1996 Constitution

It would appear that this new policy is contrary to the clear human rights culture of the 1996 Constitution.

I would appreciate your response to these concerns.

Yours sincerely,

Mark S. Ellis