South Africa – Truth and Reconciliation

Mary Rayner, Amnesty International

The Truth and Reconciliation process in South Africa was a very long and phenomenally conspicuous process which dominated the media and peoples’ lives in 1996, 97 and 98. Although the commission is still functioning throughout its semi autonomous Amnesty Committee (which is still adjudicating applications for amnesty), essentially there’s been an abrupt halt in a very intense process that actually began prior to 1996. As is well known, South Africans, particularly the country’s black majority, suffered under a political regime for decades. The regime’s ideology and practices were condemned internationally as a crime against humanity. The black population were denied their rights as citizens, many millions of them suffered extreme deprivation in the areas of housing, health, employment, education, access to food and other basic necessities which were the consequences of deliberate policy. Thousands of black, as well as South African, opponents of the government were subjected to arbitrary detention, banning orders, unfair trials, prolonged imprisonment, torture, ill-treatment, extra-judicial executions, disappearances, and judicial executions inflicted disproportionately on black prisoners. The crimes were conducted in a context of extensive government control on information and willingness to harrass and punish those who breached these rules.

The negotiations in the early 1990’s for the transition to a democratic non-racial state were made in an atmosphere of deep mistrust and a situation of intense violence. The covert forces of the apartheid state fomented conflict within black communities with the intention of weakening the political capacity of the newly unbanned African National Congress and allied organisations. Despite this, and at the eleventh hour, negotiators behind closed doors reached an agreement on an interim constitution which contained remarkable guarantees for human rights and the protection of human rights. It also contained provision for an interim period of a coalition government and the employment of existing staff of departments of state for an interim period.

The crucial final aspect to this agreement was the postamble to the interim constitution by which the negotiating parties agreed that there would be amnesties for politically motivated crimes committed in the past in the interests of achieving national unity and reconciliation. It was on that few sentences that the edifice of the TRC was constructed. The opening legislation for the Commission was signed into law by President Mandela in July 1995. The Act reflected not just the outcome of negotiations and discussions by politicians and members of the new parliament, but also the active participation of civil society organisations to help ensure that as much as possible, within those political constraints, of the commissions work would be conducted in public. There was a tense moment in 1995 before the law was finalised, when it looked as if the new Cabinet was only going to agree to hearings for amnesty applications behind closed doors. This would have denied the victims of those violations, survivors, dependents etc, the right to knowledge about those incidents and for wider knowledge of the incidents. However, intense lobbying by civil society organisations helped ensure that not just the Human Rights Violations Committee hearings but also the Amnesty Committee hearings were going to be held in public.

The selection of the commissioners was also done in quite an open way. Although under the law the president had the right to determine who would be the commissioners, again intense lobbying and good will at the level of the Executive allowed for a process by which a committee called the Representative of the Society could receive nominations from the public to the president, who by and large accepted the recommendations of the committee.

I should note that the Commission was the overarching the body and it established under it 3 sub committees – the Human Rights Violations Committee, which heard evidence of human rights violations; a Reparations Rehabilitation Committee to deal with compensation issues for victims; the semi-autonomous Amnesty Committee which was chaired by a judge and which actually conducted its work largely separately from the commission.

The Commission began its work with a very daunting shopping list of tasks which included establishing as complete a picture as possible of the nature and extent of those human rights violations for the period from 1960 and ending what later became settled as 10 May 1994. Gross violations were defined as killing, abduction, torture or severe ill treatment of a person or the conspiracy to commit these crimes whether inside or outside South Africa and politically motivated and under orders. The Commission was also responsible for facilitating the granting of amnesties where full disclosure was made by individuals confessing to these actions. Thirdly it was responsible for establishing the fate and whereabouts of missing individuals and restoring the civil and human dignity of victims of human rights violations, doing a report and making recommendations to the President. The mandate covered the actions of the former state and all its agents as well as the actions of the liberation movement, the opposition political parties and members of any political organisations. The Commission also had a very broad brief to look at the context, antecedents, factors contributing to the commission of human rights violations. It used part of the law to motivate for establishing what became known as sector hearings, institutional hearings in which influential sectors of society, such as medecine or business were the focus of targeted public hearings in which findings were made by the Commission on the way which the judiciary or the medical fraternity etc contributed to an atmosphere in which violations were committed. The commission had formidable powers under the Act: powers of sub poena, search, witness protection and the power to grant amnesty which would be both binding in respect of criminal and civil litigation and it also was required under the law to investigate issues around the destruction of state records.

The Commission obviously didn’t have a smooth ride. There were many obstacles put in its way. Some of those obstacles were created by tensions and conflicts within the Commission which reflected some of polarisations in the Board of Society. People came from all kinds of backgrounds – former government members as well as ANC people. The staffing included, as it developed, a very complex mix from people from NGO’s long involved in human rights work, to people who were actually drawn from the statutory security forces and intelligence services. The combination of these people from different backgrounds was very tense and created conflict within the staff.

There are several obstacles which I’d like to look at briefly. One was the destruction of records and the impact on the Commissions work. Second, the use of litigation by suspected perpetrators to try and hamstring the Commissions work. On the question of records, the Commission obviously needed to seek access to military police, intelligence, prison service documentation in the efforts to corroborate statements made by more than 20 000 victims of human violations and also to try and chase the chain of command so that it could make a determination on who ultimately was responsible for the very systematic abuses which had occurred. In this respect the Commission engaged, in 1997 particularly and into 1998, in extensive enquiries into the records kept by these statutory agencies. The Commission made a very moving motivation for this investigation which resulted in its confirming that massive amounts of documents had been destroyed systematically in the early 1990’s, particularly in 1991 and again in 1993, obviously in anticipation of the change of regime that was imminent. It commented that the story of apartheid was the story of the systematic elimination of thousands of voices which should have been part of the nations memory. Burnings, incarceration, assassination and a range of related actions, as well as censorship and confiscation of materials were part of the process. Any attempt to reconstruct the past must involve the recovery of this memory. The tragedy is the former government deliberately and systematically destroyed a huge body of state records and documentation in an attempt to remove incriminating evidence and thereby sanitise the history of oppressive rule. Destruction of state documentation probably did more to undermine the investigative work of the Commission than any other single factor. Among other findings that the Commission made in attempting to locate documents was that particular categories of documents had almost been entirely obliterated. These included the records of the covert military death squad, which is known somewhat ironically as the Civil Cooperation Bureau (CCB), as well as those of three other covert military operations. There was also a clearly concerted effort in 1991 and again in 1993 to destroy all traces of the records of the very important structure just below the highest organ of the state, the State Security Council. This was the National Security Management System which was established in the 1980’s in response to wide scale public insurrection in the country and it penetrated to all sections of society, into all communities. The Commission could not find any traces of those records by which it would have been able to make the crucial link between operatives at local and regional level up through the chain of command to the State Security Council.

In addition to these highly co-ordinated efforts at destruction of documents, there were also adhoc removals of sets of documents by individual agents of the former state. A very spectacular example came to light in 1997, when the National Intelligence Agency, as newly constructed, discovered trunk loads of documents in the possession of the former head of the covert chemical and biological warfare programme. The individual is currently being prosecuted for fraud and theft.

A second area is the issue of litigation used by perpetrators who were either aware that they were going to be named or informed that they were going to be named in testimony. One of the most stunning features of the Commission, despite all its problems and faults, were the public hearings processes in 1996 and 1997 in which victims of human rights violations, survivors, came forward and publicly gave testimony about what they had experienced or what their communities had experienced. It was noted that there was an effort to ensure that the commission’s work could be conducted publicly. This was an unusual feature at this Commission compared to others. The evidence given, the testimonies given by these victims, relatives, survivors in different parts of the country, in rural and urban areas, over that year or two was widely broadcast on television. This caused a change in public discourse on the past and shifted the balance of strength of victims viz a viz perpetrators in their understanding of the past and where responsibility lay. The cumulative effect of these so-called victim hearings and their public display of stories and the human beings behind the stories was also added to by the later stage in the Commissions work This was the public hearings relating to amnesty applications. Where the Amnesty Committee judged that a gross violation was being acknowledged in an application by a perpetrator and therefore that victims, survivors and relatives had a right to hear the evidence discussed in the application, there was a public hearing. There was a series of very important public hearings involving particularly former members of the security branch, in which quite important disclosures were made about covert hit squads that were run by police. A very important hearing in which a former security branch officer publicly acknowledged and in fact demonstrated to the Amnesty Committee how he interrogated and tortured detainees by using a suffocation method. This hearing was broadcast on television for the whole country to hear. So on that day you had a breaking of the silence and denial that torture ever occurred under the previous regime.

Cutting across those public disclosures of information giving and sharing was a move by those who were going to be named in these hearings. As they began in 1996, there was an application to the Supreme Court to gag a particular witness in one of the first hearings: the mother of a young man who had been detained, subjected to poisoning and subsequently abducted and disappeared. She was going to give her testimony, she was going to share some of her grief. As she went to take the stand, word came that the High Court had issued an order gagging her from testifying because she was going to name two people openly suspected of being involved in his abduction and murder. A long legal battle ensued that lasted weeks before she was finally able to speak. The Commission was instructed that she was not to give the names in her testimony. The Commission was subsequently bound by a process by which as soon as it received a victims’ statement and it intended to hear public evidence from the victim of relative on that statement, it had to give 21 days notice to the alleged perpetrator; it had to provide all the documentation to that perpetrator so that the person could have what the court decided was his common-law right of allowing the other side to be heard. This partly resulted in a very cumbersome and expensive process for the commission. It sometimes resulted in complete delays of hearings because certain, including Inkatha Freedom Party and military high ranking, people kept denying that they had ever received this information, preventing the hearings from going ahead. Victims began to see the Commission as a very perpetrator legalistic formal body which took care of those due process rights and perpretators had the right to be legally represented at state expense. There was an imbalance that developed in the process that I think the Commission in the end became quite helpless to overcome before in concluded.