SOUTH AFRICA'S TRUTH COMMISSION
Background to issues of accountability in South Africa
by Bronwen Manby, Human Rights Watch
Release of political prisoners
Soon after the release of Nelson Mandela and other high-profile political prisoners in February 1990, negotiations began for the release of the hundreds of lower ranking political prisoners still held in South African jails and the indemnification from prosecution of political exiles returning to South Africa. These negotiations led to the conclusion of two "minutes" between the ANC and the National Party government, signed at Groote Schuur in Cape Town on 4 May 1990, and at Pretoria on 6 August 1990, and to the passing of the Indemnity Act 1990, which empowered the president to grant indemnity from prosecution "either unconditionally or on the conditions he may deem fit".
The intention expressed in the Pretoria Minute was that all political prisoners would be released by the end of April 1991, but the cumbersome procedure of application and review took longer than planned, and there were continuing disputes between the ANC and the government as to the meaning of "political offence". In particular, the government refused to categorise as political any offence involving violence against the person.
In June 1992, when the multilateral talks known as Codesa (the Convention for a Democratic South Africa) broke down after only six months, the ANC claimed that there were still at least 400 political prisoners in detention. The government, on the other hand, asserted that all that were truly political had already been released. Bilateral talks between the government and the ANC continued but deadlocked in August 1992 over (amongst other things) the government's suggestion that a general amnesty should be introduced to apply to members of the security forces as well as of the liberation movements. Bilateral negotiations were restarted following the September 7 massacre of 28 ANC supporters by Ciskei security forces during a protest march at the homeland's repressive policies. On September 26, 1992, ANC President Nelson Mandela and State President F.W. de Klerk announced a new agreement involving the unconditional release of more than 500 ANC prisoners, with no amnesty provision for government forces. The government, however, was under increasing pressure from the white right wing and from members of the security forces over the amnesty issue. In October 1992, shortly after the agreement for the release of political prisoners, the National Party unilaterally introduced fresh legislation empowering the president to forgive any politically motivated crime. In contrast to the negotiated legislation implementing the Pretoria and Groote Schuur Minutes, the act aimed to extend eligibility for indemnity to members of the security forces, and the procedures in relation to the granting of indemnity were wholly secretive. The Further Indemnity Act was condemned both by the ANC and by many international observers but nevertheless came into effect.
While the debate over political prisoners and amnesty was continuing, the ANC was facing criticism of its own human rights record outside South Africa in the camps it had maintained in Angola, Zambia and Tanzania. In response to allegations that the organisation had tortured individuals suspected of being government agents, the ANC instituted a unique examination of its own conduct. A three-person commission of inquiry, chaired by Advocate Louis Skweyiya, was appointed in March 1992 to investigate the allegations made by former detainees in the camps. Its report concluded that there had been serious breaches amounting to "staggering brutality". It recommended that "urgent and immediate attention be given to identifying and dealing with those responsible for the maltreatment of detainees", that some compensation be paid to those who suffered maltreatment and that the ANC should create an "impartial and independent structure" to document cases of abuse and allegations of disappearance and murder. Nelson Mandela made a public statement in which he accepted the collective responsibility of the ANC leadership for the"serious abuses and irregularities" which had occurred, but insisted that individuals should not be named or held personally accountable.
However, public criticism of this process prompted Mandela to announce the appointment of a second commission of inquiry, chaired by S.M. Motsuenyane and made up of independent figures not connected to the ANC. The Motsuenyane Commission's report, published in August 1993, came to similar conclusions as the Skweyiya Commission. While its mandate was limited, the Motsuenyane Commission also named some of those it believed to be responsible for the abuses. The ANC accepted those conclusions (while denying that there was "any systematic policy of abuse") but called for the establishment of a truth commission "to investigate all the violations of human rights ... from all quarters". In the meantime, ANC leaders said that they felt that it was inappropriate to take action against their own members as long as the National Party and security forces had engaged in no similar exercise.
The interim constitution and the truth commission legislation
The issue of accountability for past abuses remained one of the most contentious debates when multiparty constitutional negotiations resumed in May 1993. The National Party argued strongly for the inclusion of a clause granting amnesty to the security forces, while the ANC insisted that the question of indemnity should be left up to the new government. Ultimately, the interim constitution included as its last clause a "postamble" which states the need for national reconciliation and stipulates:
"In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which amnesty shall be dealt with at any time after the law has been passed."
In April 1994, elections were held, and a government of national unity led by the ANC took office. One of the first acts of the government was to declare its commitment to the introduction of legislation for the establishment of a truth commission, with the aim of having the commission up and running by the end of the year. Negotiations over the drafting of the legislation, however, proved just as contentious as the negotiations over the drafting of the interim constitution, and the Promotion of National Unity and Reconciliation Act was not passed until May 1995. The most difficult points surrounded, as before, the manner in which the truth commission would handle the question of amnesty.
Although the National Party was forced to accept the ANC's position that there could be no blanket amnesty, it fought hard over the details of the process by which amnesty would be granted to individuals. Of particular concern were: whether the hearings of amnesty applications would be public; the cut off date after which no act would be eligible for amnesty; the level of disclosure required before amnesty would be granted, and the criteria to be applied in deciding whether amnesty could be granted in a particular case.
President Mandela appointed a representative panel to nominate Truth Commissioners, whose recommendations were adopted without change. The names of the commissioners were formally published in the Government Gazette on 15 December 1995.
The Truth Commission
The Promotion of National Unity and Reconciliation Act is a long and complicated piece of legislation by comparison with the one page edicts which formed similar bodies in Latin America. It establishes a unique framework for the South African attempt to engage questions of truth and responsibility for past human rights abuses.
The 17-member Truth and Reconciliation Commission has three main functions: to prepare a record of past abuses, to recommend the granting of reparations to the victims of abuse, and to grant indemnity from prosecution in respect of "acts associated with political objectives" to individuals who make full disclosure of their acts to the Commission. Its tripartite structure reflects these responsibilities.
The Committee on Human Rights Violations is the part of the South African legislation that most resembles its Latin American predecessors. Its duty is to investigate the abuses of the past and prepare a comprehensive report on "gross violations of human rights" during the thirty years prior to the transition to democratic government in South Africa.
A gross violation of human rights is defined as the:
"violation of human rights through (a) the killing, abduction, torture, or severe ill-treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command or procurement to commit an act referred to in paragraph (a); which emanated from conflicts of the past and which was committed during the period 1 March 1960 to the cut off date [finalised as 5 December 1993, the day before the date of adoption of the interim constitution], within or without the Republic, and the commission of which was advised, planned, directed, commanded or ordered by any person acting with a political motive". ("Political motive" is defined in the context of the Committee on Amnesty.)
Individuals who were victims of gross human rights violations may apply to
this committee for compensation. If the committee is of the opinion that the person is a victim, it will make recommendations "in an endeavour to restore the human and civil dignity of such victim". The drafters of the legislation were careful to ensure that the granting of reparations did not turn into an open-ended commitment, and the wording of the act is designed to allow the president and parliament to see how many claimants there are before setting out the amounts payable to them.
3. Committee on Amnesty: This committee considers applications and grants amnesty "in respect of any act, omission, or offence on the grounds that it is an act associated with a political objective" committed during the period March 1960 to December 1993. The committee has five members, of whom three, including the chair, are judges who are not commissioners themselves but appointed by a separate procedure. The remaining two members of the committee are commissioners, of whom one is the commissioner most likely to be sympathetic to the security forces. All applications for amnesty must be submitted by 15 December 1996.
Whether an act is considered to be associated with a political objective will be determined in light of the position the individual held and of a set of criteria known as the "Norgaard Principles" (originally devised for use in negotiations over the release of political prisoners in Namibia). To be political, an act must have been committed by a member or supporter of a "publicly known political
organisation or liberation movement" or by an employee of the state, either acting "in furtherance of a political struggle" (including both acts by or against the state and acts by one political organisation or liberation movement against another) or "with the object of countering or otherwise resisting the said struggle", and the act must have been committed "in the course and scope of his or her duties and within the scope of his or her express or implied authority". The Norgaard criteria include the motive of the person who committed the act; the context in which the act took place; the legal and factual nature of the act, including its gravity; the object of the act (in particular whether it was directed against a political opponent, state property or personnel, or private property or individuals); whether the act was carried out on the orders of a body of which the perpetrator was a member; and the closeness of the connection between the act and the objective pursued. An act with a political objective does not include any act committed for personal gain or out of personal malice, ill will, or spite.
If the committee is satisfied that the application complies with the requirements of the act and, importantly, that the applicant has made full disclosure of all relevant facts, it will grant amnesty. This extinguishes criminal and civil liability in relation (only) to the acts or omissions confessed to. The committee must publish the full names of the persons to whom amnesty has been granted, together with "sufficient information to identify the act, omission or offence in respect of which amnesty has been granted". The hearings of the committee are public, unless it specifically rules otherwise, but the applications for amnesty and any supporting documentation remain confidential, until their content is made public by the Commission. Evidence given to the Commission is not admissible in ongoing or later criminal proceedings against the individual who has applied for amnesty, nor may any adverse conclusion be drawn in legal proceedings as a result of his or her application for amnesty. No other truth commission-type body has tried to combine the issues of "truth" and "justice" in this way. The long debate between the government and the ANC has led to a compromise in which indemnity will be available in limited circumstances and only in return for full disclosure. The link to indemnity should operate to take the search for the "truth" much further, in particular in uncovering the high-level command structure underlying the covert operations of the former government. One of the obvious arguments for low-ranking members of the security forces to make in their applications for amnesty will be that they were following orders and essentially had no choice in what they did. While this point may be given some weight by the Commission--even though it is not a defence to criminal liability--these applicants will inevitably have to answer the question: who gave you the orders? Since the hearings are in public, individuals will find out if they have been named, and will then be"encouraged" to speak out on their own account. In this way, the chain of responsibility may be established to quite senior levels (as has already happened, for example, in the case of the investigations leading up to the current trial of former minister of defence Magnus Malan and several senior security force officials).
Criticisms of the truth commission
Criticisms of the truth commission mainly centre on the amnesty provisions, and come from two sides: those who say that the legislation allows the guilty to escape punishment, and those who say that it punishes the innocent. These critics fall into predictable camps: on the one hand the white right wing (including large numbers of members and former members of the security forces) state, ominously, that the legislation is very divisive and can only set back the process
of reconciliation. They argue that South Africa was involved in a war and that their cause was as honourable as the cause of the liberation movements. Since ANC members were releasedfrom prison under criteria more lenient than those that will be applied by the truth commission, and since most security force members did not apply for indemnity under the previous act, they claim they are being unfairly singled out for punishment. They argue that the cut-off date should at be extended, at least to 10 May 1994, the date of the inauguration of the new government, so that those who were charged in connection with the pre-election bombing campaign would be eligible.
On the other side are those who were victims of the previous regime, supported by some politicians and human rights groups, who believe that any form of amnesty obstructs full justice. A constitutional court application has been filed on behalf of AZAPO (the Azanian People's Organisation, a black consciousness party), and three relatives of people presumed killed by the security forces (including Nontsikelelo Biko, the widow of Steve Biko), arguing that the amnesty provisions, and in particular the extinction of both criminal and civil liability, violate the constitutional right to have disputes settled in a court of law.
A different type of criticism is voiced by NGOs involved in rehabilitation of torture victims and other support activities for those who have suffered as a result of the apartheid system. They argue that the long, drawn out debate over the amnesty provisions has obscured the healing and cathartic purposes of the Truth Commission, and that the victims are being sidelined in the concentration on measures dealing with the perpetrators.
Finally, perhaps more fundamental is the charge that the Truth Commission is essentially irrelevant because it will not consider the central question: the implementation of apartheid. Those responsible for devising and carrying out the policies of systematic racial discrimination that led, amongst other things, to the bulldozing of whole communities and the relocation of hundreds of thousands of people, will receive no attention under this legislation. The reason for this is fairly obvious: if there had been any attempt to assess accountability for apartheid as such, as opposed to the ordinary crimes it led to, then the whole transition in South Africa would not have been possible, since no member of the National Party government would have negotiated on these terms. Political realities, not to mention difficulties in establishing individual responsibility for apartheid as such, determined this choice.
The Truth Commission's World Wide Web site is at http://www.truth.org.za/