This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
30 Mar 1995: Omar, Dullah
POM. Do you think whites have any appreciation of the evil that apartheid was?
DO. I think that there are whites who do have that appreciation, there is a significant layer who do, but because of the conditioning that has taken place through the huge propaganda machinery which existed through the apartheid years the majority of whites do not have that kind of appreciation although they have been exposed to the need for it now and there is a measure of resistance to change. The fears which exist still arise from the past.
POM. Have you found that in the new government of national unity that any kind of white minister ever apologised to you for what he was partly responsible for in the past?
DO. Nobody has apologised to me, in fact I have never asked for such an apology. I do not want individuals to apologise to me but I do think that there should be a recognition that the nation should apologise to the nation. I don't know whether it is a gimmick, but it's a social phenomenon. I think we all as a nation need to take part in the healing process, but the individual apology hasn't meant very much to me.
POM. You said some time ago that the most fundamental issue for all South Africans is to come to terms with the past on the only moral basis possible, namely that the truth must be told and the truth must be acknowledged. It appears to me that with the constant complications surrounding the Truth Commission that there is resistance, further resistance, to going this particular route.
DO. There is a resistance, a fundamental resistance in the public mind as I look more broadly arises out of fear, fear of a witch hunt. Now that fear is being fuelled by elements who have things to hide and they try to win public support for their positions, that what took place in the past should be suppressed if possible, if they have to be dealt with they have to be dealt with in secret. All of this amounts to a situation where the public does not get to know the past. There are people who have things to hide therefore they twist the reality and twist what we are after by injecting into the public mind the notion that all this is part of a witch hunt, whereas looking at the exercise as a whole both what appears in print, in the bill itself and what we have said and the examples that we have drawn from other parts of the world, there is a great deal of generosity in the process towards matters of human rights violations, perhaps over-generosity.
POM. I saw in the papers yesterday that the Justice Committee was considering taking the word 'truth' out of the bill and renaming it something else altogether, is this just a delaying tactic?
DO. No, it is very significant that there should be such a proposal. It is a proposal which will never be accepted by the Justice Standing Committee; it is a proposal made by a representative of Inkatha, but it is highly significant that they want to remove the word 'truth' because it's not only the word that they wish to remove it's the concept and the context, and that I think is the essence of the problem, that there are groups in the country who do not want to take part in the truth.
POM. So would you find the NP and the IFP equally opposed to the exposition of the truth?
DO. Yes that has been the experience in the Justice Standing Committee.
POM. The former Police Commissioner, General Johan van der Merwe, said, I think before the Joint Committee, that if efforts were made to drag senior security officers before the commission that they would name the political masters and point to ministerial involvement, ministers having given orders. My two questions are, will the investigatory position go as far as possible in tracing ... so that you will be able to do something, or what kind of general broad principles, what kind of crimes would not be covered by indemnity or amnesty?
DO. I think there must be clarity about the processes which are envisaged in the bill. The first is provision is made for amnesty and the procedure and criteria in the bill for people who want to apply for amnesty. Insofar as that process is concerned it is not restricted to any particular type of human rights violation which relates to all crimes. In other words insofar as amnesty is concerned we are not looking only at great human rights violations as defined. It could be any kind of crime, the idea being that if you want to establish the rule of law persons who have committed crimes must be charged with that crime. Any evidence which comes to light which indicates that people have been involved in crime, especially of a serious nature, should be charged and my approach is that all evidence that becomes available no matter against who, people should be charged. At the same time the constitution says there shall be amnesty, so such people have the option to apply for amnesty in respect of crimes.
. There is a second process which creates a different kind of accountability for crime and that is recording human rights violations. Now it is in that second process that we have to draw the line somewhere and make the process manageable and in line with what has been happening in public Truth Commissions in other parts of the world, there you have a body investigating what is called great violations of human rights, crimes which would be crimes in international law, human rights violations. So there the investigations would not be focused on minor violations or any crimes but serious crimes, serious violations of human rights. The reason for this is that you can embark upon an exercise of the crimes of apartheid which would take up years and years, it is something that has to be done but that is not the function of this committee. So I think we need to have an understanding that there are two different processes at work, one being the great violations, the other being the amnesty.
. Now insofar as Van der Merwe's statement is concerned, it is, I think, quite an amazing thing that he should say this in the form of a threat. He is not saying, "We are going to speak the truth", he says, "If you force us to speak the truth then we will say who the political masters were and who ordered these things." I would assume that the highest police officer in the land suggesting that those crimes should be suppressed otherwise I am going to speak about those crimes and who is responsible, is an unacceptable phenomenon. He says that we should suppress crime, the truth should not be made known, because if you force me to speak the truth I will tell you who gave the order, and that is precisely what is required. We need to cleanse our society, tell us about what has happened in the past, who is responsible; these are all things that need to be known.
POM. So you can come before the commission and apply for amnesty?
DO. You can go before the Amnesty Committee because the overall controlling or management position is that there is a separate committee operating under the commission to deal with amnesty. That committee will be there so as to ensure it's an independent process. So he and those and those who know they have committed crimes can apply to that committee for amnesty. It is provided for in the constitution, and provided it is a political crime they will get amnesty.
POM. And if they don't go before it they still would be open to investigation and to prosecution?
DO. Any person who has committed a crime, who refuses to apply for amnesty is liable to be prosecuted.
POM. Let's just talk about the ... Principles which I understand to mean that if you have committed a serious crime like murder that you don't qualify for amnesty. Is that correct?
DO. No that is not so. The ... Principles do not exclude murder. What the Principles say is you take into account the motive of the offender, you take into account proportionality, whether the act committed in relation to the objective sought to be obtained is proportionate, whether you acted on the instruction of an organisation of which you are a member, whether you act on your own, whether you acted out of malice for personal gain. You take into account a number of criteria and on that basis come to a decision whether you have a person with a political objective or not. Some cases are clear, others fall in a grey area and so you need to have criteria so as to ensure that the Amnesty Committee does not decide on an arbitrary basis. Now that is the whole objective of criteria but it does not necessarily exclude murder.
POM. There were hit squads in two different periods. One before the unbanning of the ANC and one after, overall 'going on' while the two sides were negotiating with each other. Do you make a differentiation between crimes committed in one period and crimes committed in the other?
DO. It makes no difference in the sense that the context is different. The Amnesty Committee would in identifying the criteria look at the context. At the same time the constitution says there shall be amnesty in relation to events which took place up to the 5 December 1996, so that they are not automatically excluded.
POM. I just want to get an idea in my own mind. Let's say that somebody volunteered information that they organised hit squads of mercenaries who went on the trains and shot people at random in order to create destruction and slow the process down. Would that be seen as a crime with no motivation other than to have the conflict escalate?
POM. The National Party has said that if they continue to adhere to that position, they simply won't budge, what happens?
DO. Well what we do is we try our best to reach consensus. Of course a great deal will depend on how the President thinks about the matter and what he thinks is in the national interest and that is something which I think ... But in general we try to achieve consensus very hard. The principle of majority rule must apply.
POM. The chair must make decisions?
DO. By majority and if there is a parliament then parliament must decide. I would say that is a general rule. But at a political level it is of course necessary for us to make an assessment all the time whether what we are doing advances the cause of national reconciliation or not. The speed with which we move may be determined by the balance at the time, the potential for creating instability, unrest, civil strife. I think those are all things that we would take into account. There are many things that I would like to do. I would prefer, for example, that every person who has committed a crime should be prosecuted. That's the theoretical position in the context of if I live with the constitution, I live with the need for national reconciliation and so we will act according to those requirements. So we would make an assessment of how we should move forward, we allow the democratic process to take its course.
POM. Just picking up on this point you made about stability, how do you define an individual's right to know what happened to members of their family who simply disappeared like Matthew Goniwe did, against the necessity for reconciliation, to maintain stability? Which is the greater right or is that too theoretical a question?
DO. No, no, it is not too theoretical a question. In fact it's a fallacy to think that the need to deal with the honour and dignity of victims on the one hand can be counterpoised to national reconciliation. That is national reconciliation, dealing with the problems of victims is starting national reconciliation. To ignore what happened to victims, to forget what happened to them will lead to a situation where there is reconciliation on paper but no real reconciliation and to me there is the national reconciliation, or a large element of national reconciliation is finding out what happened to Matthew Goniwe, doing what is right to the victims, doing what is right to the relatives of Matthew Goniwe, doing what is right to the communities served by Matthew Goniwe and doing what is right to the nation as a result of Matthew Goniwe. So all that is part of the equation of national reconciliation.
POM. Now the judge in that case named five high ranking security officers who received signals that Matthew Goniwe should be permanently removed from society. If they applied for amnesty and implicated a minister one would think in that situation that it would qualify as a political crime. If not the minister could be shown to have given signals in order to eliminate Matthew Goniwe, could he be prosecuted? Would he be required to resign from the government?
DO. Well it is not what we would want. I think it would be nationally untenable for a person to remain in office who had been involved in murder, in giving an order for murder to be committed. I think the South African people would find it unacceptable, the international community would find it reprehensible, so it is not really a question of what I think but what South Africa and the international community would allow. Therefore, what the Truth Commission must do is to establish a forum and to say this is what happened. Whether there is a prosecution, whether a person will be allowed to retain public office I think depends on the kind of attitude of the nation as a whole.
POM. So again in that context, how would you differentiate between the hit squads and those who shoot randomly, specific individuals, and saw a bomb placed in a public place that exploded and people were killed in the vicinity?
DO. It's not a good thing for building of a human rights culture. But there is a difference. Where you pre-plan that you want to eliminate a specific individual, where there is a struggle going on and internationally that has been the situation, where a struggle goes on people from that armed struggle must take that particular form. The victim is identified for elimination. I am not excusing the hit, I'm not saying that placing a bomb somewhere does not kill because it does. But there is a different quality to a government, state officials, persons responsible for maintaining law and order, identifying individuals, specific individuals for elimination. The enquiry into human rights violations does not exclude either.
POM. You will recall that from the day of the outbreak of the violence in October 1990 the ANC insisted that the government was involved in what ... as they wished to, and then the third force appeared. In your investigations as the Minister of Justice did you unearth any concrete evidence that a third force existed which had the implicit approval of the government of the day or that it was simply rogue elements operating not really in any planned conspiracy, they were operating independently?
DO. I cannot say that government as such gave orders or set up the third force, but that is not the way things work. If the government wants to destroy opposition and they create an atmosphere in which people are identified as enemies and they set up machinery throughout the country like they did, like the national security management systems, the Joint Management Committee took control over the country, which operated and identified enemies, people who actually neutralised, that state is actually responsible, the government is responsible for the consequences. And then when elements in their police force and in their army begin to set up structures there is, I think, a culpability on the part of that government because it's a logical situation that they have created. But I cannot say that specific individuals in government knew or were responsible for setting up a third force.
POM. That's a very difficult process.
DO. It was not a difficult process. We treated the powers that be ...
POM. The security files that were kept on yourself?
DO. Well I'm leaving that to the Truth Commission. I am certain that if I were to ask for that file I will be told there is no file.
POM. Do you think people should have the right to have access to security files even if it shows, as it did in Germany, that there were cases of wives or husbands who were in fact plying the government with information on each other, and rather than becoming an act of reconciliation it became a extra division?
DO. I think that even though making the information available creates other problems it is the lesser of the evils, you should make the information available. That after all is part of our history and we then learn how to cope with it. If you are building a democracy and you are wanting to build a human rights culture then within that framework you can learn to cope with a problem. If you suppress the information on the other hand, and say it's not going to be made available, you are actually undermining the building of the human rights culture and ultimately what you are seeking to do you are not going to achieve. In a sense it's the lesser of evils but it is the only road possible if you want to move away from authoritarianism and lack of accountability and so on.
POM. A number of people have made the point to me that there will be a kind of open forum in which an individual remains himself as being responsible for given acts of violence in townships, that the family of the victim will carry out retributive violence and what happens is that there is more violence rather than less.
DO. You see the violence in the townships is caused by the dehumanisation and brutalisation of people caused by the apartheid regime and reflective of the apartheid regime. The terrible social and economic conditions under which people have been forced to live have completely degraded people so that the social and economic conditions and the political situation of the times has created that kind of situation. But if you look back at African communities over fifty years, a hundred years, there is a great tradition of unanimity, of settlement of disputes, living together and dealing with problems in a way that keeps people together. In African communities the settlement of disputes is mediation rather than beating up people for crimes that may have been committed. I think that the notion that we cannot have that kind of openness and reconciliation is an insult to the African people of this country.
POM. You mentioned the National Security Management Council made many decisions regarding the conduct ... and F W de Klerk was part of that, was privy to decisions made by the Council. Does it pose particular political problems if you know what the National Security Management Council did or did not do, how it operated and he was privy to the various decisions made?
DO. I do not think so. I spoke to Mr de Klerk personally and he said he has nothing to hide so why should I assume that in the National Security Council he was involved in decision making of a kind which involved crime?
POM. The witness protection programme. Is that operated by ...?
DO. There is a witness protection programme. It is working successfully. It is because of the witness protection programme that is has become possible to run a trial like the De Kock trial.
POM. Now again, broadly, would he fall into the category of amnesty for so many and so vast ...
DO. No, many of the crimes referred to there seem to me of a kind which do not qualify for amnesty.
POM. ... ?
DO. I wouldn't like to comment on that one.
POM. Shell House?
DO. That is outside the cut off date. Our cut off date is 5 December 1993. The Shell House incident took place after that so we are not taking that into consideration at all. I, myself, am of the view that we should not change the cut off date. It then means that if people at Shell House commit murder then they must go to trial. I am not so sure that that was the situation. The information reveals that the Inkatha group was involved in many killings all along the way on that particular day. They went to Shell House, according to ANC, with the specific object of attacking Shell House. So whether there was murder or whether there was a defence of Shell House or whatever the situation was, it is something that will have to be investigated.
POM. IFP people who were trained at Caprivi and became part of the KwaZulu Police or special units of security forces in KwaZulu/Natal, do you have ongoing investigations into that whole area?
DO. I'm not sure, I've certainly not been involved in that.
POM. How does the witness protection programme work? How would individuals approach and come forward?
DO. Individuals are interviewed by the police or investigated. If they say that they fear for their lives or that they need protection then arrangements would be made for their protection which are adequate.
POM. A quotation from ... " financial mismanagement question and inefficiency within the ANC ... in fact there is no fiscal discipline in the ANC and there is greater inefficiency within the ANC .... power corrupts." Is there mismanagement or corruption within the ANC?
DO. That's an internal organisation and the ANC are taking steps to draw up a code of conduct and all structures of the ANC have been instructed to look into what happens in the ANC, how it runs, whether there is corruption, whatever the situation is. It's not a matter for the Justice Department. That I think is creating a general climate in the country where there is accountability, openness, does help in all organisations and the ANC as well. I think you must remember we lived under a situation of repression where we couldn't do things properly. I, myself, operated over the years without books, without writing down names of people because I was afraid they would fall in the hands of the police. So there was an environment which made accountability difficult. If you create a different environment then I think it would help and the new constitutional structures I think have been created.
POM. Can I ask you one final question on the constitution? I asked everybody last year after the new interim constitution, how they would rate it on a scale of one to ten where one was unsatisfactory and ten was very satisfactory. Surprisingly on both sides people were giving a seven or an eight or an eight or a nine in a few cases. Now the Constitutional Assembly talks about drawing up a new constitution from scratch. That is effectively reinventing the wheel. If a lot of the interim constitution is good why put it aside and start all over again?
DO. It's very simple, you can't have a permanent transition with the transitional constitution and if you want to have a permanent transition then you have to have a new constitution. But we've got to settle down and have a normal democracy, the transition period will come to an end in political and constitutional terms. We must have a final constitution which really entrenches democracy in the country.