To Forgive Mercenaries in the Spirit of Madiba

18th November 2009 By: ISS, Institute for Security Studies

The recent presidential pardon for convicted South African mercenaries in Equatorial Guinea is unprecedented. While others view this as an insult to justice and the fight against mercenarism in Africa, others view it as a triumph for the African spirit of forgiveness.

It cannot be denied that mercenaries continue to destabilize the African continent and that some of them are now infused into the so-called new modalities of mercenaries in the form of private military and security companies. It is for this reason that the Republic of South Africa passed the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act 27 of 2006. While this Act is not yet in operation, pending the finalization of its Regulations, it however sends a very clear message that mercenary activities cannot be tolerated nor condoned in South Africa. Of significant importance is that the Act is founded upon the basis that it is necessary to prohibit mercenary activity in order to give effect to the values of the South African Constitution and the States' international obligations.

South African President Jacob Zuma was recently reported to have said that President Theodore Obiang Nguema of Equatorial Guinea released the mercenaries because he had learnt from former president Nelson Mandela to forgive. President Zuma said this while addressing a gathering of African traditional leaders in honour of Madiba. The irony of President Zuma's statement is that it does not corroborate that of the Equatorial Guinea Presidential in pardoning the convicted mercenaries. The reason given by President Nguema was that the release was solely based on humanitarian grounds.

The South African President surely needs to furnish a valid reason for the mercenaries' release beyond the use or misuse of the Nelson Mandela name? If President Zuma was also one of those taught by Mandela that "as Africans we must forgive", are we yet to see presidential pardons in South Africa in respect of those that were convicted of serious offences in South Africa? If that is the case, South Africa's convicted serial rapist and notorious criminal Annanias Mathe must be looking forward to his presidential pardon before the Soccer World Cup in 2010. This will be in the Madiba spirit of forgiveness.

The release of the mercenaries and the subsequent behaviour of the South African Government, which is being economical with the truth regarding its role in the drama, raise more questions than answers. The main question is, why?

The presidential pardon is in fact more than the release of convicted mercenaries on humanitarian grounds and is far beyond what the application of the Madiba spirit of forgiveness. The sheer coincidence that the pardon came on the eve of an official visit to Equatorial Guinea by Mr Zuma also deepens the question. If the South African mercenaries were only pardoned on humanitarian grounds, it is Simon Mann that should have been granted the amnesty, considering his state of health. Mann was suffering from ill health for a long time and operated on for a hernia in November 2008. Why the other convicted South African mercenaries, whose state of health was not as bad, were extended the "presidential mercy" is another issue.

Some have asked whether the mercenaries will be recharged for the same offence, which they have already been convicted of, upon return in South Africa. Section 35 (3) (m) of the South African Constitution makes it very clear that this would be an exercise in futility. This section provides that every accused person has a right to a fair trial, which includes the right not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted.

Any attempt to recharge the already convicted mercenaries in South Africa would be fiercely opposed based on this provision. This would also be contrary to President Zuma's understanding of the Madiba's spirit of forgiveness. Perhaps, the Madiba spirit of forgiveness needs to be unpacked. Whether this so-called Mandela spirit is linked to Equatorial Guinea oil and the prospects of good trade relations between the two countries, remains to be seen.

The only thing that one can be sure of is that the South African government was involved, in one way or another, in the discussions relating to the eventual pardoning and release of the South African mercenaries.

When South African mercenary Nick du Toit was reported to have said that "President Zuma freed them", this statement was strongly contested by the South African government. The explanation given that the release was done on humanitarian grounds, does not really hold water because not all the men suffered from some serious disease.

The notion of the Mandela spirit of forgiveness is in fact a bit far-fetched, especially when we are speaking here about convicted individuals, who by the way never denied the allegations levelled against them. That President Zuma has placed the oil-rich Equatorial Guinea very high on his international relations priority list is a fact, which seems to be one of the considerations for the presidential pardon. However, the secrecy behind the travel arrangements of the South African convicted mercenaries has also raised a lot of suspicion in the minds of South Africans and leads some to conclude that international relations with Equatorial Guinea is not the only reason.

It cannot be denied that the South African paroled mercenaries are already in South Africa. They had 24 hours to leave Equatorial Guinea. The South African government opted to keep their travel plans secret. The media was never given an opportunity to witness the arrival of the four men and no justification for doing so was given. The South African public deserves to know the raison d'être for the release of people who are considered to be very dangerous to society and to the state. The public also deserves to know what guarantees the South African government has put in place in order to prevent the so-called mercenaries from continuing with their specialised trade or from joining or establishing private military and security companies.

Written by: Sabelo Gumedze, Senior Researcher, Security Sector Governance Programme, ISS