Updated: Aug. 31, 2012 at 8:10 a.m. EST
The decision late Thursday by South Africa’s state prosecutors to use a notorious apartheid-era law to charge 270 striking miners with the murder of 34 of their colleagues — men who were actually shot dead by the police, as recorded by numerous television crews — marks a bizarre new low in a bloody scandal that threatens to strip the country’s postapartheid state of what remains of its moral authority. National Prosecuting Authority (NPA) spokesman Frank Lesenyego announced “34 counts of murder have been laid against the 270 accused” over the shooting dead by armed police of 34 fellow miners at the Lonmin platinum mine at Marikana in northern South Africa on Aug. 16. The miners, also accused of the attempted murder of 78 fellow miners who were injured, were charged under a law dating back to 1956 known as “common purpose,” said Lesenyego, in which members of a crowd present when a crime is committed can be prosecuted for incitement. In other words: the state says the miners provoked the police to kill them.
(PHOTOS: The Bloody Scenes at Marikana)
The law was used as a catchall by South Africa’s white supremacist apartheid regime to convict black antiapartheid leaders for, say, leading a march or demonstration where some crime was committed. The 34 dead miners were among 3,000 mineworkers who had walked out in the second week of August in a protest over pay which then rapidly deteriorated into a violent turf war between two rival unions. Their shooting by the police wielding machine guns had already evoked comparisons to the brutality of apartheid, in which the police shooting of demonstrators was a well-worn tactic of the regime. That only made the prosecutor’s additional application of an apartheid-era law even more shocking. Renegade youth leader Julius Malema, expelled from the ruling African National Congress (ANC) this year, called it “madness.” He continued: “The policemen who killed those people are not in custody, not even one of them.” In a statement, the Congress of South African Trade Unions (COSATU) said it was “absolutely outraged” by the prosecutor’s decision, adding it was concerned that the police and prosecutors were dealing with the 270 suspects “en masse” without assessing individual guilt or even identity. In an online commentary, South African legal expert Pierre de Vos described the charges “bizarre and shocking” and added they amounted to “a flagrant abuse of the criminal justice system, probably in an effort to protect the police and/or politicians.” Finally on Friday, South African Justice Minister Jeff Radebe joined the chorus of condemnation, saying the prosecutor’s decision had “induced a sense of shock, panic and confusion” in South Africa.
The NPA’s decision came hours after the publication of an investigation by Pulitzer Prize–winning South African photographer Greg Marinovich in which he suggested that at least 14 of the 34 dead miners had not been killed in the volley of automatic fire captured by television crews on Aug. 16. Marinovich’s pictures showed a series of gullies and passageways between a group of large boulders nearby where state forensic teams had marked the position of 14 bodies — gullies that, as Marinovich reported, seemed too narrow to allow for the possibility of anything but close-range executions. The journalist also quoted a number of eyewitnesses who corroborated his interpretation of events, saying that after the initial killings, police had moved into the boulders and shot or run over an indeterminate number of protesting miners.
With 25% unemployment, widespread poverty, inequality that has actually increased since apartheid, epidemic violent crime and the world’s biggest HIV/AIDS population — affecting 10% of South Africa’s population of 50 million — South Africa today is all too aware that what followed when Nelson Mandela and the ANC defeated apartheid in 1994 has turned out to be something of an anticlimax. But the Marikana massacre has laid bare in unprecedented and extraordinary fashion the depth of the failings of the ANC state. One legacy of Mandela’s righteousness and the ANC’s victory over white racism has been electoral invulnerability. The party has won five general elections in a row and as a result, its critics say, is immune to criticism or accountability and — thus untouchable — indulges itself in an orgy of self-enrichment and criminal arrogance. Until Marikana, many of those critics appeared to be hysterical maximalists or even apartheid apologists, refusing to see any good in the ANC and all too often lowering the national debate to little more than a shouting match between recidivist racists.
The state’s stunningly awful performance at Marikana — shooting protesters that it might have pacified with tear gas or rubber bullets; then the police’s insistence that it had done nothing wrong; then President Jacob Zuma’s careful avoidance of singling out anyone for blame; and now prosecutors’ contention that the miners somehow murdered themselves — suggests the ANC’s harshest critics may have been underestimating the problem. Whether South Africa’s outrage at events at Marikana eventually translates to the ballot box is an open question: the country is more than 18 months away from a fresh general election. But unless it does, or the ANC believes it might, South Africa will continue to exist in a kind of democratic twilight: a country where one of the world’s most progressive constitutions guarantees its citizens all the rights they could wish for on paper but where, without the disciplining effect of meaningful elections, that means grotesquely little in practice.