Johannesburg — THE National Prosecution Authority's (NPA's) belated decision to proceed with the prosecution of former law and order minister Adriaan Vlok and others for apartheid-era crimes is to be welcomed, albeit with reservations.

This newspaper has argued, as a matter of principle, that alleged human rights violators who either did not apply for, or were refused, amnesty in terms of the Truth and Reconciliation Commission (TRC) process, must be pursued without fear or favour. Failing to do so would make a mockery of the amnesty process and encourage a culture of impunity in future: why respect the law when there are no repercussions for failing to do so?

However, the evidential burden required for a successful criminal prosecution is a far cry from the TRC process, which relied upon perpetrators coming forward and telling the truth largely on their own volition. Those who did not take the opportunity to assuage their consciences and avoid punishment were either supremely arrogant or convinced that the state would never have sufficient evidence to prove the cases against them beyond reasonable doubt.

Viewed from this perspective, the NPA was wise to take its time in preparing its case against Vlok, former police commissioner Johann van der Merwe and the three former security policemen who are alleged to have attempted to poison Frank Chikane, now director general in the Presidency, in 1989. The failed prosecutions of former defence minister Magnus Malan and Wouter Basson, who headed apartheid SA's chemical and biological warfare programme, were a significant setback for the state and the NPA will be anxious to avoid a repeat of those outcomes. In fact, it is by no means clear that the case against Vlok could have been made to stand up had he not had a Damascene experience and all but admitted complicity by begging Chikane's forgiveness in the now famous public foot-washing performance.

This is also why those who have expressed the hope that the plea-bargain agreement Vlok and Van der Merwe have apparently reached with the NPA will link former president FW de Klerk to the Chikane and other conspiracies, are likely to be disappointed. Apart from the fact that De Klerk had only been in power for a few weeks when the poisoning took place, Van der Merwe has already dismissed talk that the two are ready to throw De Klerk to the wolves. Of course, if solid evidence were to emerge that De Klerk was indeed secretly directing the apartheid state's dirty tricks campaign, he should be prosecuted forthwith, as would be the case if the individual concerned was a senior official in the present government. That is what equality before the law means.

In the circumstances, the NPA's reported use of the plea bargain mechanism to secure convictions against Vlok and Van der Merwe, rather than taking the risk of going to trial with flimsy evidence, was probably unavoidable. However, the special amendments that were made to the national prosecution policy to cater for apartheid-era perpetrators, which give the national director of public prosecutions considerable discretion on whether to prosecute, are of concern since on the face of it they amount to an extension of the TRC without the essential element of transparency or sufficient regard being shown for the opinions of the victims.

Taking into account factors such as whether the motive was political and the alleged perpetrator confes-sed, was contrite and co-operated, was appropriate in the context of the TRC but should not be an issue for prosecutors. If there is enough evidence to support a conviction, they should proceed or enter into a plea-bargain agreement. If not, the case should be dropped and the victims encouraged to seek a civil remedy. Bending the rules at this late stage will not make up for the TRC's shortcomings.