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Between Nuremberg and Amnesia: The Truth and Reconciliation Commission in South Africa

Beth S. Lyons is a criminal defense attorney at the International Criminal Tribunal for Rwanda (ICTR). She is also an Alternate Representative to the United Nations in New York for the International Association of Democratic Lawyers (IADL).

The conscious crafting of an honest history by a state commission is a rare enough event to justify our calling your attention to South Africa’s Truth and Reconciliation Commission. But this writing of history is incomplete, in the same degree as the process of change in South Africa. Certain brute facts are ignored and avoided, and this avoidance was the condition of the bargain accepted by the ANC. As per South Africa’s Freedom Charter, now it can in some meaningful sense be said that “South Africa belongs to all who live in it, black and white.“ But what belongs to whom is the question left unaddressed as the very condition of the transition negotiations, transferring its tension into all aspects of that transition, not least any permitted debate over present remedies for a history of injustice.

The amnesty provisions of the Constitutional compromise are also the source of the Truth and Reconciliation Commission. As Beth Lyons asks, was amnesty too high a political price to pay to gain the possibility of a transition to majority rule while averting civil war? When considering this fascinating and hotly debated topic, do not forget the forbidden question that gives it force. Was placing the pre-existing structure of ownership and economic control beyond the bounds of permitted question too high a price to pay? The displacement of the (prohibited) second question into the (permitted) first question is the secret of the process on which we focus.1

The Editors

It is clear that a new South Africa will have to deal with its history in the transition away from apartheid. But, how South Africa will undertake this challenge, whether it can transform it into an active, integral component of building a new society, is of paramount significance. In a uniquely transparent process, a quest for truth aimed at the goal of national unity and reconciliation, is being publicly conducted. Whether and how the truths of the past can be forged into a common history that can serve to reconcile a divided county and reconstruct a new society is an open question. The workings of the Truth and Reconciliation Commission (TRC), charged with this task, are therefore of uncommon interest.2

The TRC evolved out of the negotiated settlement. Official negotiations, in which the ANC and National Party were the dominant players, commenced in December 1991 with twenty-six partners. At the time of establishing the Transitional Executive Council in September 1993, seven months prior to the 1994 elections, nineteen remained. After the ANC’s electoral victory in 1994, it was noted that the ANC “has taken formal control of the state, but the transition itself still remains hostage to the vicissitudes of the old order.” The cohesion and strength of the right wing and state military and security forces was a major factor that informed choices at the negotiating table. A result of these deliberations was an Interim Constitution (1993) in which the Post-amble of National Unity and Reconciliation provides for the granting of amnesty to advance reconciliation and reconstruction, and for its legislative implementation.

The negotiated settlement has been an unsettled issue. Four years ago, at an early and important International Conference held in support of the ANC in Johannesburg, Jacob Zuma, then Deputy Secretary General, made the first presentation on the transition to democracy. He was sharply questioned by a critic in the audience of activists from international support movements: Didn’t the ANC sell out in negotiations? He responded that the colonialists are “part of us and part of the solution …Unlike [situations] where they ‘pack their bags and go home’ to the mother country, they live here…South Africa is the mother country.”

Zuma’s response affirmed the basic tenet of the Freedom Charter contained in its Preamble “…that South Africa belongs to all who live in it, black and white, and that no government can justly claim authority unless it is based on the will of the people…” This is the new government’s mandate, but whether and how all who live in it are part of building a new, democratic South Africa is still contentious.

For this reason, the amnesty provisions resulting from the compromise is the focus of much of the debate surrounding the Truth and Reconciliation Commission. Was amnesty too high a political price to pay for the liberation movement to gain the possibility for a transition to majority rule while averting civil war? And is amnesty, now being implemented under an ANC led and dominated government, consonant with the aims of the ANC as a liberation movement?

The schizophrenic reality of the ANC as a state power and the ANC as a liberation movement permeates the political context. And the Commission, as a state created but independent entity bound by law and with its leadership and many of its commissioners and staff identified with the liberation movements, is affected by this reality. The tension between a process that is procedurally neutral and impartial by statutory definition, but in substance is one that unleashes the torrents of anger at injustice, is both the Commission’s strength and its most vulnerable point. The strength is that it offers victims of human rights violations a state created forum in which to be publicly acknowledged, and fixes in historical memory the social context in which these violations occurred. But in so doing, it cannot avoid the intrinsic tension between the Commission’s objective to achieve national unity and reconciliation as well as the just resolution of individual human rights violations. The Commission sometimes functions as a quasi-court: it has the judicial trappings of sworn witness testimony, subpoena power, investigators, cross-examination at amnesty hearings. And, like courts, it often hears many truths about the same events. But the Commission is not a juridical body; it cannot mete out punishment, nor can it transform truth into justice.

Minister of Justice Dullah Omar explains the significance of the Truth and Reconciliation Commission as part of the new government’s commitment to building a human rights culture. Thus “the people of South Africa [can] transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge …these can …be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu, but not for victimization.” Ubuntu, “the essence of being human” in the words of Commission Chairperson Archbishop Desmond Tutu, is the driving force of the Commission.

Respect for human rights is without question the outstanding essence of the new democratic state. The depravity of the former apartheid white society is illustrated by the criminal proceedings against former Captain Eugene de Kock. He was convicted of 104 charges, ranging from murder to attempted murder to torture in the counterinsurgency activities of the notorious Vlakplass unit he commanded in the mid-eighties and Koevoet (“crowbar”), a police counter-insurgency unit in Namibia of which he was a founding member. He was sentenced to 212 years after a twenty month trial. What is most telling is the normality of DeKock, as argued by experts at the sentencing stage of his trial, in October 1996. Marlene Burger writes: “One might have expected the evidence to show that he was a seriously disturbed man. Instead, psychological evaluations show that DeKock, 46, …shows none of the characteristics typical of criminals.” A picture of Eugene de Kock in a v-neck sweater and sunglasses is captioned “TYPICAL MAN …Eugene de Kock fits the second most common profile of South African men.”

One Law for One Nation

It is undeniable that criminal activities were the modus operandi of the previous regime, itself declared illegitimate by the world. Even Francois van der Merwe, the attorney for former security policemen involved in the abductions and killings of Steve Biko, the Pebco Three (Port Elizabeth Boycott Committee) and the Cradock Four, conceded that these incidents were “within the culture of the government of the day.” Dirk Coetzee, former security officer responsible for the murder of Griffiths Mxenge and a commander of the notorious Vlakplass, described the “special protection” he enjoyed during his tenure in the Security Branch of the SAP (1977-1981) as enabling him and his colleagues “to operate above the laws of the country and above the rules and regulations of the police…”

The slogan, “One Law for One Nation,” was the centerpiece of newspaper advertisements for the new Constitution prior to its passage in May 1996. It could also have been appropriately used to advertise the opening of the Commission’s hearings in East London in April 1996.

Under the aim to “promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past”, the Commission’s objectives are to (1) establish as complete a picture as possible of gross human rights violations perpetrated between 1960-1994 by conducting investigations and hearings; (2) facilitate granting of amnesty in exchange for full disclosure of truth for acts with a political objective within guidelines of the Act; (3) make known the fate of victims and restore their human and civil dignity, and allow them to give accounts and recommend reparations; (4) make a report of findings and recommendations to prevent future human rights violations.

The application of the Act’s amnesty provisions to an “act, omission or offence …associated with a political objective committed in the course of the conflicts of the past” to both sides—the liberation movements and the apartheid state—encapsulates both its compromise origins and its significance as a step toward the establishment of the rule of law. The question is whether the neutral, impartial process of the Commission, non-discretionary in its statutory application, can reflect the historical truth that the struggle for one nation, one law was an internationally recognized legitimate struggle for self-determination and liberation against an illegitimate, pariah state.

This challenge is posited in the context of an Act replete with contradictions—in its goals, subject matter, means and remedies. How can the goals of national unity and reconciliation address the issues of individual redress, especially with a mandate to establish a picture of the system of apartheid through investigations and hearings on individual human rights violations? How can the complicity of other state apparati—the media, judiciary, education, health, business—be acknowledged and made part of compensation to victims? Will victims within South Africa and in the front-line countries be individually or collectively restored? Are truth and justice in opposition in this process, or can the possibility of amnesty and threat of criminal prosecution be used tactically in tandem for both the state’s interest and those of victims? And finally, and perhaps most fundamentally, is the process of reconciliation between victim and perpetrator a private, individual matter or are reconciliation and reparations steps toward leveling the economic playing field and challenging the existing, glaring disparities in wealth and the relations of power?

While these considerations have been germane to most of the sixteen truth commissions to date, South Africa’s emphasis on transparency distinguishes it approach from many of its international predecessors. The Truth and Reconciliation Commission is (i) implemented by a government committed to human rights and a party, the ANC, who established four commissions in 1984, 1989, 1992 and 1993 to investigate allegations of its own internal abuses; (ii) has broad investigative powers, including subpoena power; (iii) is mandated by statute to deal with an inclusive range of human rights abuses and to name names of perpetrators; (iv) conducts public hearings; (v) has a long two-year life span, ending in December 1997.

The Commission, chaired by Archbishop Desmond Tutu and co-chaired by Dr. Alex Boraine consists of 17 commissioners, who are divided into three committees: Human Rights Violations, Amnesty and Rehabilitation, and Reparations. Its central office is located in Capetown, with regional offices in Johannesburg, East London, Durban and Capetown. Hearings began in April 1996 in East London. As of March 1997, close to 10,000 people made statements to the Commission and more than fifty Human Rights Violations hearings were held in townships throughout the country. As of May 10, 1997, the cut-off date for amnesty applications, approximately 8 thousand applications had been received. Special hearings on the Bisho Massacre, Gugeletu 7, Trojan Horse, Langa Massacre, Women, Youth and Children, Role of the Health Sector During Apartheid, Political Party Submissions, South African Defense Force (SADF) and South African National Defense Force (SANDF) have been held. Other hearings, focusing on the Media, Judiciary, Business, and the State Security Council are scheduled.

As many have observed, the mostly black South African audience, suffering themselves again with the witnesses as they testify to heinous violations, at times weeping, already know what has happened to their friends and families. But hearings give people the opportunity to assert actively their human right to be treated with dignity by the state. The term “victims,” popularized especially by the media, is historically inaccurate. As one listens to witness after witness recount their stories, especially of physical violations calculated to break their will to survive and resist, it becomes immediately apparent that these people are more than survivors: they are heroes and heroines, ordinary people responsible for the success to date of the liberation movements. I especially remember listening at Paarl in October 1996 to Patric Qumza, severely assaulted and detained in 1986 by the South African Police after having been injured in a political feud between the UDF and AZAPO-AZANYU, allegedly supported by police. He successfully pretended he was a corpse in order to survive. His statement, prepared prior to the hearings, is a half page in length. He testified for thirty minutes in minute detail about the events of a decade ago.

Significantly, the human rights violations hearings have taken place throughout the country in townships and communities in which the abuses have occurred and where victims and their families live. The Trojan Horse Event Hearings in May 1997 were held at the Athlone Technical College, bordering Thornton Road in the colored township of Athlone outside Capetown. Less than a few blocks away on October 15, 1985, police officers in civilian garb had jumped out of unmarked crates on the back of a South African Transport Services flatbed truck on a narrow residential street full of schoolchildren and opened fire on them for allegedly throwing stones. Two children, Michael Miranda and Shaun Magmoed, aged 11 and 16 years respectively were killed in the road and a third, Jonathan Claasen, aged 21 years, was killed by shotgun fire in a nearby house and countless others were injured. Seven police officers involved in this incident had been subpoenaed by the Commission to testify at the hearings, filled with hundreds of family members, friends, community and local schoolchildren, some of whom had not even been born when the incident occurred. Stonefaced and unremorseful, they had feared for their safety and claimed their intent was to arrest the stone-throwers. But, as pointed out by a twelve year old student at Habibia Primary School in neighboring Rylands who was attending the hearing and viewed a TV video of the incident made in 1985, there were no vans in which to put children who would have been arrested. The police testified they were equipped with No. 1 and AAA ammunition, which, when fired at close range, could kill. None of the police applied for amnesty. The human rights violations hearings share the element of “speaking bitterness” described by William Hinton in Fanshen: A Documentary of Revolution in a Chinese Village, when women gathered to talk about oppression under the old regime. In fact, a nationwide victims’ support group, prominent in making victims an integral part of the Commission process is called Khulumani (isiZulu for “speak out”) Support Group.

When the nineteen-year-old daughter of murdered anti-apartheid activist, Sicelo Mhlawuli, one of the Cradock Four, came forward out of the audience in the City Hall at the opening Commission hearings in East London, April 1996, she appealed to the commissioners, “We want to forgive, but we don’t know who to forgive.” Identifying perpetrators—putting names with the descriptions of clothing, physical attributes, demeanor, brutalities and obscenities of the state’s footsoldiers—is one of the Commission’s key tasks.

The Commission is succeeding in not allowing apartheid to remain a nameless and faceless system. It challenges the position that no one was responsible for apartheid. When Constitutional Court Justice Albie Sachs was questioned about difficulties former agents of apartheid had in dealing with new laws and relationships with the ANC-dominated government, his answer was brief: “No difficulty. [They say] I was not involved in apartheid.” There is not so much a denial of apartheid’s systemic existence or revisionist efforts to erase it (although important paper proof and documentation of especially the security apparatus has been destroyed) but a denial of an individual’s role and responsibility in the apartheid regime.

This denial pattern was F. W. de Klerk’s justification for his ignorance of acts that occurred during his tenure, including allegations of state involvement with Third Force violence, which according to the Steyn Report he failed to investigate. De Klerk made great efforts to distance himself from the apartheid policies of his predecessor, P. W. Botha, who—according to former police commissioner Johan van der Merwe testifying at amnesty hearings in October 1996 in Johanesburg—ordered then Law and Order minister Adriaan Vlok to have Khotso House [headquarters of the South African Council of Churches and site of anti-apartheid meetings] bombed in 1988. Shirley Gunn, then an underground ANC MK operative, was sought by the state for the bombing and detained and tortured in 1990. Since the revelations by van der Merwe eight years later, the TRC received, as of January 30, 1997, ten amnesty applications relating to this bombing. In June 1997, Vlok agreed to testify at a special truth commission hearing on the State Security Council (SSC), the country’s real government during the 1980’s, composed of the most senior Cabinet Ministers and top military brass of the security forces. The SSC’s imprimatur is all over the CCB terror squads, Vlakplaas police murder squads, the terrorist Hammer Unit, the Directorate for Covert Collection and other overt and covert counterinsurgency operations of the Total Onslaught.

The importance of laying bare and piecing together the inner workings of the apartheid system in minute detail is one of the Commission’s most important tasks. It is raised by victims at the amnesty hearings: it is not good enough for a security officer to say he attacked so-and-so because he was a suspected terrorist; victims want to know, in detail, why that officer suspected these things, under what conditions and on what day. On the one hand, this is part of the accurate recording of history, but more importantly, it is the reclaiming of history by victims. By understanding what was done and why, the events suddenly no longer remain in the control of the apartheid state; they become part of the property and history of those who previously were violated in these events.

The right to know is particularly significant in the context of the secrecy and censorship that dominated South Africa, dating at least from the Suppression of Communism Act of 1950 to President F. W. de Klerk’s opening address to Parliament on February 2, 1990. The state security apparatus in particular required secrecy as a condition of its existence. In the situation in South Africa, the most effective human right may well be the right to information. This access is codified in the new South African Constitution: Everyone has the right to access to any information held by the state; and any information that is held by another person and is required for the exercise or protection of any rights (my italics).

But exercising this right to know, especially by those most directly affected, sometimes is a tortuous process. At the Gugeletu 7 event hearing in Capetown in November 1996, the mothers of the slain young men almost collapsed with grief as they watched for the first time a police video of their sons’ murders ten years ago. One of the commissioners, questioning a mother, commented, “it is difficult and it hurts us to watch you writhe in pain.” It is evident that the Commission, through its work and particularly hearings, has unleashed publicly a huge force of emotion that previously had been the private agonies of individuals and their communities. Whether this will encourage the process of forging a common history for the South African nation is yet unclear; in the absence of more white people coming forward there is a danger the Commission will be seen only as a platform for black people, as a different forum in which to relive the horrors of the past.

For the majority of South Africans, the Commission is allowing them to exercise their right to know who violated them and under whose orders. For the white minority, the Commission has removed the privilege of not knowing. Apartheid with its culture of censorship, secrecy and suppression is under public scrutiny, nightly on television in front of a whole nation. Commission activities highlight the evening news, with filmed excerpts from hearing testimony and a weekly forty-five-minute review. They are the topic of radio talk shows, including Radio Zulu’s weekly report to more than a million listeners. They are in the headlines in every daily and Sunday paper. Although some non-governmental organizations have criticized the Commission for opting for mass media coverage in lieu of more community-oriented civic-education campaigns, it is undeniable that today in South Africa it is a conscious act not to know of the Commission’s activities.

Why did so few whites “know” and, especially “liberal” whites? And why did whites “refuse to know,” when they were given information by other whites? Architects versus footsoldiers of apartheid is vociferously debated. But if human rights abuses are to be prevented in the future, the question of how a minority in power was able to convince or induce their fellow white citizens to execute apartheid in the specific ways they did needs to be addressed. The bestiality of deKock was not a horrific exception; it was an accepted norm within the culture of the government of the day. And that culture was not confined to those in government office.

During its first six months, the holding of mostly human rights violations hearings and only one or two amnesty hearings made it appear that reconciliation was one-sided, i.e., victim sided. Witness after witness was asked why s/he was testifying and wasn’t it because s/he wanted to be reconciled? This focus omitted the other half of the equation, the perpetrators, and it personified forgiveness as an individual action. The danger was that victims of apartheid were now being asked to bear the burden of reconciliation as well. A generosity of spirit has been evident. Witnesses make very constrained requests of the Commission. Etched in my memory is Mrs. Nombuyiselo Mhlawuli, widow of Sicelo Mhlawuli, one of the Cradock 4, abducted and murdered by the police. She asked for his hand (seen by someone in a bottle in the Port Elizabeth police station) to be returned. Others ask for proper burials for loved ones, scholarships for children left without parents, a tombstone, death certificates …humble, modest requests in proportion to the violations inflicted and suffered.

Starting with the testimony of five former security officers at the Johannesburg amnesty hearings in October 1996 and still continuing, there has been an attempt to rectify the “imbalance” as revelations about security operations, implicating P. W. Botha and F. W. de Klerk have been revealed. As evidence of governmental involvement in human rights abuses mounted, the National Party (“NP”) increasingly attacked the TRC for “one-sidededness.” In the NP’s Second Submission to the TRC in March 1997 de Klerk proclaimed that apartheid was not a crime against humanity and was incomparable to genocide. He warned that acceptance of this comparison as a prerequisite for reconciliation (as some in the ANC were urging) was “a sure recipe for the rekindling of inter-racial animosity.” Archbishop Desmond Tutu, who had personally presented evidence to de Klerk of human rights abuses, was saddened by de Klerk’s consistent denial of knowledge of security operations during his tenure as President from 1990 to 1994 and while he served as a member of the State Security Council (where, by his own admission to the TRC in May 1997 he attended 91 percent of the meetings) in the 1980s. According to the Human Rights Committee, as a result of political violence, including hit squad, vigilante and destabilization activities, there were 14,000 deaths (double the number of deaths in the preceding forty years) and 22,000 injuries in the period 1990 to the elections in 1994. Even when confronted with evidence from a State Security Council document produced at the hearing calling for the elimination of opponents of the state, de Klerk rejected the notion that pre-1994 governments ordered the murder of anti-apartheid activists. With evidence of this personal knowledge, Commission Deputy Chairman Alex Boraine had asked de Klerk if he had weighed the possibility of applying for amnesty. The NP’s continued attacks on the “partiality” of the TRC then peaked in demands for the resignation of Dr. Boraine and an apology from chairperson Archbishop Desmond Tutu. The NP commenced legal action against the TRC when its demands were rejected.

As pointed out in the Saturday Star, Independent On-Line, June 14, 1997, Nelson Mandela never personally knew what went on in the ANC camps. But upon his release from jail, Mandela ordered the Motsuenyane Commission to investigate allegations of abuse and misconduct in the ANC camps and, as leader of the party, accepted full responsibility.

As interpreted by some news analysts, de Klerk was appealing to conservatives in the NP. His testimony occurred exactly one week after de Klerk disbanded a task team headed by party secretary-general Roelf Meyer, a key negotiator of the settlement, that was investigating the formation of a new political movement intended to include a grouping of opponents of the ANC. De Klerk claimed his only difference with Meyer was one of timing. The task team had advocated a commitment to disband the NP without a similar commitment from the other potential party partners. But couched in this procedural issue are fundamental differences about the apartheid baggage of the NP and visions of what is required to function in a new South Africa, including the future alignments for the 1999 elections.

Meyer announced his resignation from the NP the weekend of May 17 and 18. I saw him four days later and asked for his business card. He replied that he was “in transition.” As of June 1997, two NP representatives at provincial level have quit and joined his New Movement Process (NMP), and dozens of resignations have come from other NP officials, councillors and youth representatives. The list of defectors is likely to increase. It seems that de Klerk’s NP, as Minister of Justice Dullah Omar has suggested, is in crisis, not the TRC.

Amnesty

Attending the Truth and Reconciliation Commission human rights violation hearings confirms that they are achieving the goal of becoming the “facility for the oppressed [to] enable them, should they so choose, to fulfill a civic sacrament of forgiving.” But of yet greater import for the future are the amnesty hearings where the relations of power between victims and perpetrators are challenged as perpetrators are cross examined by victims’ families, as information about the chain of command of the executioners and organization of the system is forced out, and as the majority of South Africans can finally know the details of the perfidy of the apartheid state.

The drafters of the Act were confronted with the challenge of how to make the amnesty provisions work for the victims in the face of a settlement in which the criminals retained both their weapons and their social and economic power. In the words of Professor Medard Rwelamira, one of the Act’s drafters, “Reconciliation cannot occur in a situation of wanton amnesty which totally disregards victims.”

The Interim Constitution’s (1993) Post-amble, “National Unity and Reconciliation,” states that “amnesty shall be granted in respect of acts, omissions and offences with political objectives and committed in the course of the conflicts of the past” and it provides for mechanisms, criteria and procedures to be defined by Parliament. According to the Act implementing this provision, amnesty shall be granted if, in short, it is with respect to an act associated with a political objective committed in the course of the conflicts of the past and if the applicant has made a full disclosure of relevant facts. It covers acts of both the State and the various liberation organizations. It does not cover offenses committed for personal gain (excluding the pay of state agents) or out of personal malice.

The task was to balance the latitude of an open-ended concept of amnesty with specific limiting criteria, so that while any conflict and everybody could come into the process, it was not a blanket amnesty without standards. For this purpose the Act adopts the principles defining the concept of a political offense drafted by Carl Aage Norgaard, a Danish national and president of the European Commission on Human Rights, for use in the 1989 settlement in Namibia that foreshadowed events in South Africa. These principles require an examination of the: (1) motivation of offender; (2) circumstances; (3) nature of the political objective; (4) legal and factual nature of the offense; (5) object (state vs. private entity); and (6) relationship between the offense and the political objective, its directness or proximity or proportionality.

The proportionality criterion, perhaps more than the others, offers discretionary latitude to the amnesty committee and it is the criterion that the National Party singled out in its criticism that the Norgaard principles limited the constitutional rights bestowed by the Constitution. It is the criterion, for example, that is to be applied in acts of gruesome, wanton violence grossly disproportionate to their aims. How this is applied in the cases of the convicted killers of Chris Hani, Clive Derby-Lewis and Janusz Walus, may prove the litmus test of the Truth and Reconciliation Commission.

The proportionality criterion may also, in the end, rectify the Act’s “balance” between the apartheid state and the liberation movement. The ANC did not have a policy of killing civilians. In contrast, former Vlakplaas commander SAP Brigadier Jack Cronje revealed at the Johannesburg amnesty hearings on October 22, 1996, for the first time the existence of a top secret counter revolutionary information target center: which identified and prioritized anti-apartheid activists to be “intimidated” or “eliminated” known as TREWITS. Cabinet minutes from the discussion about quelling the Soweto Rebellion in 1976, released by the State Archives, reveal that Jimmy Kruger, then Minister of Justice, Police and Prisons said that “Police should perhaps act a bit more drastically and harshly to bring about more deaths.” A supplementary indictment filed in the trial of former Defense Minister Magnus Malan and 19 others indicated that 1988 duty sheets issued to SAP officers directed that “offensive actions'” (for which read hit squad activities) had to be authorized in advance by Military Intelligence and targets had to be approved by military officers and the police’s security branch.

But the proportionality criterion has not quelled criticism of the amnesty provisions from the victims of the apartheid regime. Major challenges to the Act, most notably by the families of Steve Biko, Advocates Griffith and Victoria Mxenge, Dr. and Mrs. Ribiero and the Azanian Peoples Organization (AZAPO), focus on the provisions of the Act providing civil and criminal immunity for perpetrators granted amnesty. They argue that they are thereby deprived of their constitutional rights “to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.” In addition, they contend their rights under international law were violated based on the declaration of apartheid as a crime against humanity and the status of combatants given to participants in the wars of national liberation recognized under Protocol I Additional to the Geneva Conventions 1977.

The Constitutional Court decision in July 1996 ruled against the families, on the grounds that the Constitution (Section 33) sanctioned the right of limitation to access to the court, based on the Post-amble to the Constitution granting amnesty. It also held that the amnesty provisions were not inconsistent with international norms and did not breach South Africa’s obligations in terms of public international law instruments, relying on the distinction between conflicts between parties within the same state (as in South Africa) versus for example, conflicts between a colonial power and a struggle for self-determination against colonial and alien domination of their countries. “The erstwhile adversaries of such a conflict inhabit the same sovereign territory. They have to live with each other and work with each other and state concern is best equipped to determine what measures may be most conducive for the facilitation of such reconciliation and reconstruction.”

Although the Constitutional Court has ruled in Azapo et. al., the arguments are very much alive, and of this the Commission is aware. In Azapo et. al., there was a broad representation of the liberation movements in the plaintiffs’ political affiliations: Azapo, PAC and ANC. The issues raised transcend party lines: in the quest for justice, are the needs and objectives of the state synonymous with those of the violated individuals? Particularly in the example of a state governed by a former liberation movement and plaintiffs who were all leading activists in those movements, where do interests intersect? To what extent are these plaintiffs expressing the sentiments of the masses, and which sectors of the masses?

Amnesty is not punishment for wrongs, either to individuals or a society. It is a political remedy at a national level, to begin to reconcile and rebuild a divided society. How the truth extracted from perpetrators can provide a foundation on which to reconstruct a new, democratic South Africa cannot yet be fully known. But what can now be known is that South Africa has courageously undertaken a process that has insured that the past will not be buried.

That reconciliation involves forgiveness and occurs at the level of individuals cannot be denied. As an individual matter, forgiveness may or may not happen; this is very much dependent on the perspectives of the victim and other influences, particularly religion. The process of reconciliation, as pointed out by the Deputy Chairperson of the Commission Dr. Alex Boraine and others, must be linked to economic justice. The material conditions of the majority of people, the victims of apartheid, must change for national unity and reconciliation to be achieved.

Notes

  1. For a complete set of notes including the sources of all quotations, etc., contact Monthly Review.
  2. From a letter of Commission Chairperson Archbishop Desmond Tutu to The Sunday Times (of South Africa), December 4, 1996, “the Commission remains a risky and delicate business, but it remains the only alternative to Nuremberg on the one hand and amnesia on the other.”
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