kameraad mhambi

“I will tell you will not go out (of prison) Clive Derby-Lewis…you can go to hell. You’re not going to go out until you do your time, it’s as simple as that.”

Those were the words this week of prisons minister Ngconde Balfour the Sunday Times reports.

The words have a ring of Jimmy Kruger to it. Jimmy, famously said of the cruel and humiliating death of Steve Biko:

“Dit laat my koud”. (It does not move me)

But that’s just on the face of it. One cannot equate Derby-Lewis with Biko. Derby-Lewis openly espoused crude race based fascist views, and planned and assisted the killing of communist party general secretary and MK (the armed wing of the ANC) leader Chris Hani in cold blood. He was imprisoned for this deed.

Biko, one of the foremost black intellectuals South Africa produced had done nothing wrong but for the ideas he penned. Ideas about freedom. Ideas about how blacks should take pride in who they are and liberate their minds. Biko was assaulted, humiliated and left to die.

Biko good, Derby-Lewis bad.

If only it was that simple.

In terms of South African prison regulations Derby-Lewis is legitimately up for parole and has been recommended for it by the parole board. As anonymouse, a commentator on the Constitutionally speaking blog, has pointed out:

(1) An Act of parliament passed after 1994, determines that a person who has been sentenced to life imprisonment, who has already served 15 years of his sentence, and who is older than 65 years are entitled to be considered for release on parole.

(2) Two times now, the Parole Board has in the light of this recommended that Derby-Lewis be released when he becomes 65 years, which is now.

(3) Ncgonde Balfour argued in the past, that the three years that Derby Lewis spent on death row, before the CC declared the death penalty unconstitutional and his sentence was accordingly commuted into life imprisonment does not count as part of his prison sentence.

(4) Janus Walusz, the other accused is not being considered for parole simply because he is not yet 65 years old. In his case, he will have to serve at least 25 years before being considered for release.

The final decision still rests with the minister and he has now made his preference clear.

After Mandela, Chris Hani has enjoyed almost mythical reverence from most of black South Africa. Hani is also a rallying point for those in the ANC that opposed the rule of Thabo Mbeki. Considering some of the vengeful statements of late on behalf of leaders, I am not surprised by Balfour’s statement that Derby-Lewis “can go to hell”.

But should we not lament that South Africa does not apply its rules consistently to all?

In Derby-Lewis’s case the rules have been bent before.

In fact he and Walusz should not have been in prison in the first place, had the Truth and Reconciliation Commission (TRC) applied the rules contained in its own amnesty legislation.

The TRC had a problem. One of its central big ideas and supposed balm for our festering historical sores was giving amnesty for political crimes. That is if there was a spilling of the beans or so-called full disclosure.

In law there was no definition of what constituted a political crime however. When Namibia went through a similar post conflict process as South Africa they asked a professor Norgaard to define a political crime for them.

Norgaard had nothing to go on accept for international public law on political asylum. Looking at different examples of when countries declined to extradite prisoners to other countries on political grounds, he made a set principles that would form the basis for the Namibian solution.

Most importantly applicants in Namibia had to prove that their act had a political aim and that it was proportionate to their aim.

According to the Norgaard principles placing a bomb in a public space was indiscriminate and not proportionate to the political aim of liberating the country, but killing a senior political figure, or a policeman (who was protecting the state) was. In other words the killings of civilians were not acceptable.

In Namibia, where the principles were first created and used, a Swapo cadre who had tortured and killed a farm worker (who also moonlighted as a tracker for the security forces) was given amnesty, but another cadre who placed a bomb in a Windhoek shopping center was not.

The TRC act incorporated the Norgaard principles verbatim.

But seen through the prism of the Norgaard principles Derby-Lewis and Walus committed the classic political crime. Only to be matched by the assassination of a person like Magnus Malan. But still they were refused amnesty.

Ironically because of political reasons it was unpalatable (to both the ANC and Nats) to set them free.

The ANC because they and their constituency adored Hani. The Nats wanted to show that ‘ons is nie almal so nie’. They were not like the bad whites to their right.

Both the ANC and especially the Nats feared a backlash from disappointed young black people. Derby-Lewis and Wallus was expendable and had no real constituency or power base to worry about.

Tough luck.

But principles flew out the door more than once.

As the cut off date for amnesty applications came nearer the TRC has received all but a dearth of mea culpas. The TRC became worried. How to unpick the security services’ can of worms with no information.

Especially as the rise of the TRC effectively meant the end of provincial investigation teams like Jan D’Oliviera’s (The Transvaal Attorney General). It was his team that had gone after hit squad leader Eugene de Kock and others so successfully.

The Commission, probably rightly, thought that ex-policemen, soldiers and MK cadres had sought legal advice. Proportionality would be a problem for them.

Suddenly, with barely a week to go, the Commission pardoned convicted policeman Brian Mitchell. A man who orchestrated the massacre of civilians at Trust Feeds. The amnesty applications went from a trickle to a stream.