Sunday, June 24, 2018

Amnesty for the Perpetrators and NO JUSTICE for the Victims; The Truth, Reconciliation and National Unity Commission Bill.

In May 2017, a symposium was held at ICCS where the idea of setting up a Truth and National Reconciliation Commission was discussed.  When Honourable Basil Hoareau suggested that perpetrators of certain crimes which had been committed against the people of Seychelles be granted immunity, this idea was booed by the whole audience.

In my view, The Truth, Reconciliation and National Unity Commission Bill is designed to protect the perpetrators of crimes committed against the people of Seychelles, such as treason, murder, illegal imprisonment, and disappearances to name a few, and has nothing to do with justice and closure for the victims. No input was ever sought or received, from the victims. This Bill can be described as a piece of legislation set up to absolve the present regime from all crimes committed against its citizens, as long as the perpetrators “sincerely apologise to the victims” and file “a petition for amnesty”, which “shall be granted.” For example, those who abducted Hassan Ali and did whatever was done to him and disposed of his remains, will come before the Commission and when asked about this event, will invoke section 13 ( c) of “The Bill” against self-incrimination” and refuse to answer. How will the truth surrounding the coup d’├ętat and the atrocities ever come to light, and how will the families ever get ‘closure’ if that is one of the aims of the Bill? Since the coup d’├ętat was a crime against the people of Seychelles, many are suggesting this Bill go to referendum.

How much credibility would the Apartheid Regime of Pik Botha and his predecessors have had, had it set up a Truth and Reconciliation Commission to investigate the atrocities of the apartheid regime he led? History has shown that even an ANC enacted Truth and Reconciliation Commission (TRC) in South Africa after the end of apartheid failed many of the victims. A 1998 study by South Africa's Centre for the Study of Violence and Reconciliation and the Khulumani Support Group, which surveyed several hundred victims of human rights abuse during the Apartheid era, found that most felt that the TRC had failed to achieve reconciliation between the black and white communities. Most believed that justice was a prerequisite for reconciliation rather than an alternative to it, and that the TRC had been weighted in favour of the perpetrators of the human rights abuses.

In Seychelles, the situation is much worse because the Bill is designed to absolve the perpetrators and to rehabilitate them into society but not to do, or mete out justice to the victims. Unlike South Africa, the Commission will be established by the same government that committed the violations. The Institute for Justice and Reconciliation was later established in 2000 as the successor organization of the TRC in South Africa.

Justice is defined as “fairness in the way people are dealt with”, therefore by definition this Bill, if enacted by the present regime, will deny the victims of any fairness. There can be no national unity or national reconciliation without justice for the victims. The Bill is only “to promote national unity and reconciliation”. Section 6(4) does not even offer the victims the choice of privacy; showing a total lack of foresight and compassion on the part of the promoters of this piece of legislation. The Constitution guarantees everyone a fair trial/hearing by an “independent and impartial court established by law”. The Commission will be established by law, but will it be independent and impartial??

There are so many disturbing aspects to this “Perpetrators Charter”. In section 2(2) a perpetrator is defined as “a person who the Commission has found to be a perpetrator including the person who has given the order.” So it is the Commission established, by the President of the regime, which determines whether or not a person is “a perpetrator” or even a “victim”, defined under section 2(7) as a “person having suffered any significant harm or detriment as a result of any violations.”

Section 2 (8) lays the boot in  “violation means any human rights abuses committed during, or in relation to the coup D’etat of 5th June 1977.” So even if you have killed, the Commission can decide that you are not a perpetrator, or a victim of a violation of your human rights, not only because in 1977 Seychelles did not have a Constitution or a Charter of Fundamental Rights but also because the Commission established by the present regime can make a finding that the human rights violation was not committed “during or in relation to the coup d’etat on 5th June 1977.”

It gets worse, section 2(3) defines “Rehabilitation” as “psychological or mental support for both perpetrators and victims in need of such support with a view to their achieving complete closure including restoring their credibility in society.” Begging the question, WHOSE CREDIBILITY? THE VICTIMS OR THE PERPETRATORS? Any perpetrator can file a petition for amnesty within a time limit set by the Commission. In section 3(2)(e) it is the Commission who will determine the granting of amnesty, however section 12(4) is clear that if the perpetrator offers an apology to the victims they “shall be granted amnesty” irrespective.  A person who has been granted amnesty shall not be criminally or civilly liable so therefore evidence given before the commission shall not be admissible in any civil or criminal proceedings.

Section 13(c) renders the commission totally futile as any person can refuse to answer questions from the Commissioners by claiming that to do so, would  incriminating them.

The Bill gives the Commission the same powers as the Supreme Court. Therefore, can the Supreme Court grant amnesty for serious human rights violations? What does the Seychellois Charter of Fundamental Human Rights and Freedoms say about treason? And your right to life and no one shall be deprived of life intentionally? The perpetrators must therefore be held accountable. The perpetrators are the same ones that have robbed this nation dry and now this Bill is setting them up to get away with murder; literally. Just like the Anti-Corruption Commission created by the SPPF/PL regime to investigate “corruption” and despite the several acts of corruption revealed by the FPAC and the National Assembly only one case has reached the court and this, a case against one of the investigators shortly before the first “corruption” case was supposed to have been filed.!!! Effectively killing the case against a past high ranking member of the government.

As a concerned citizen, I am imploring the President, who has many times stated that he is a defender of the Constitution, if this Bill is passed by the National Assembly not to assent to it but to invoke article 87(1) of the Constitution, which states:

 “Where the President is of the opinion that a Bill presented for assent infringes or may infringe this Constitution, the President shall not assent to the Bill and, as soon as is practicable within fourteen days of the presentation of the Bill; (a) advise the Speaker accordingly; and (b) refer the Bill to the Constitutional Court for a decision in this respect.”

The President will be making history as it will be the first time any President has referred a bill to the Constitutional court for a decision on its constitutionality thereby respecting his oath of allegiance to preserve, protect and defend the Constitution of Seychelles. The withholding of Presidential assent will not only be historical because of the referral to the Constitutional Court but more importantly it will be the first time that a bill will be enacted into law after the active involvement of all three branches of the State/ Government.

Alexander Pierre