BACKGROUND TO THE TRUTH AND RECONCILIATION COMMISSION
SOUTH AFRICA'S NEGOTIATED TRANSITION
ACCOUNTABILITY FOR PAST VIOLATIONS
As with most negotiated political settlements, South Africa’s transition in the early 1990s, from authoritarian and repressive white minority rule to a democratic dispensation, was characterised by compromise and concession.
Although the pursuit of justice and accountability for a multitude of human rights violations were central tenets in the struggle against apartheid, these concerns remained largely off the negotiation agenda. Dealing with issues of past violations and their respective responsibilities was inevitably sensitive and contested ground. Exactly what should be looked into, how and to what end depended very much on insights, experiences and related perspectives and expectations; one man’s freedom fighter was another’s terrorist, defenders of law and order for some were instruments of inhumanity and repression for others.
All sides accused each other of culpability in the violence, and at the same time denied, excused and obfuscated around their own complicity. Of course, interpretations of responsibility for past violations, whether and how to deal with them were also imbued with notions of morality, values and principle. The conflicts of the past were littered with victims. Who would accommodate their interests? Was it possible to move forward, to put in place a constitutional dispensation with a justiciable Bill of Rights, without some sort of reckoning for what had happened? Conversely, some questioned whether digging up the past would be counter-productive and if efforts to hold perpetrators accountable would generate significant obstacles to the negotiation.
THE INTERIM CONSTITUTION
Despite the protestations of a small, yet vocal human rights community, South Africa’s last minority government and most participants in the negotiation process essentially ring-fenced any meaningful examination of what had happened and who was responsible. This situation was compounded by the deteriorating situation on the ground as violence and violations exploded on an unprecedented scale. Over 14,000 people were reportedly killed and many more injured during the 4-year negotiation period than in the previous 30 years.
Negotiations and related processes were pursued within the context of South Africa’s existing legal framework. In 1990, the government introduced indemnity legislation, essentially designed to facilitate the return of many liberation movement figures, many of who remained ‘wanted’ by the South African State’s criminal justice system. In 1992, the government implemented a ‘further’ indemnity act that was in stark contrast to its predecessor, and signalled the government’s intention to facilitate impunity for those responsible for violations.
The absence of an outright victor in the South African conflict provided varying degrees of opportunity and constraint for those involved in the negotiations to pursue particular agendas, including actions to engender or avoid accountability for past violations.
Without equating responsibility, it is evident that all the major protagonists (the NP government, the ANC, the IFP and PAC) were liable to some degree. This however, was not acknowledged publicly, with key players preferring to point fingers rather than honestly examine what had actually transpired and their respective responsibilities.
The government claimed it was committed to routing out illegal behaviour and holding perpetrators to account, but its actions (and inactions) spoke volumes. Its security forces were routinely accused of direct and indirect complicity in the violence, and the vast majority of South Africans looked upon them with a mixture of fear and contempt. The government set up two judicial commissions of inquiry to probe the causes of this violence during this period. In 1990, the Harms Commission was established to probe allegations of police and military ‘hitsquad’ activity. Its findings are a damning indictment of the criminal justice system and it remains the classic example of a controlled cover-up. Its effective successor, the Goldstone Commission, was set up in 1991 and, although largely a lacklustre affair, eventually began to prise the lid off security force involvement in dirty tricks towards the end of its tenure. Neither commission appeared to have done much to stem the bloodletting and widespread impunity that accompanied it.
The ANC had already unveiled some commitment to probing accountability for past violations through its own inquiries into abusive actions in its holding camps in Angola. Despite the limitations of what was probed and uncovered, this kind of introspection was unprecedented for a liberation movement and encouraged those within the anti-apartheid movement and broader civil society who were keen to pursue an accountability agenda.
Meanwhile, the IFP remained inflexible in its interpretation of the conflict, blaming primarily the ANC for violations and painting itself as an innocent victim of premeditated efforts to annihilate it. It has never attempted to publicly examine its own culpability in this regard, maintaining it is not responsible, but rather has been systematically vilified and is a victim of intimidation and violence, propaganda and misrepresentation.
DRAFTING TRC LEGISLATION
By 1993, the core of the ANC’s leadership seemed to have accepted that there would not be any trials for apartheid crimes. The NP and security force chiefs had made it clear that they supported notion of general amnesty, and that some guarantee around this issues was required to facilitate a final agreement.
The ANC, although prepared to compromise on the principle of amnesty, was not prepared to tie itself to a specific amnesty deal, arguing that the detail of an amnesty process should be the responsibility of a democratically elected government.
What resulted was the inclusion of a specific provision for amnesty in the preamble of the interim Constitution that came into force in December 1993. Although this was presented as a fait accompli -there was no public opposition to this provision. No detail was given as to what this would entail, and no commitment was made to examine the conflicts of the past. Indeed, these matters were effectively deferred to the new dispensation.
Options for pursuing a justice and accountability agenda were not completely shut down and provided a more flexible platform from which to launch an initiative to interrogate past conflicts and related responsibilities.
THE TRC'S TERMS OF REFERENCE
Within weeks of the historic April 1994 elections, the ANC dominated Government of National Unity, initiated a process that would result in the development of the Promotion of National Unity and Reconciliation Act and the establishment of the Truth and Reconciliation Commission.
Key members of the ANC South Africa were keen to develop some mechanism to examine past violations and engaged several civil society actors to facilitate a broader debate on what could be undertaken, and subsequently help fashion the draft legislation. At this time, South Africa was the only country to have engaged in such a measure of public debate over the terms and scope of its Commission.
A select group of civil society activists and organisations, primarily from within the human rights NGO sector and the churches played an influential role in the subsequent formulation of the legislation. A series of workshops were held, the Justice Parliamentary Portfolio Committee convened several hearings, and received a slew of submissions during the drafting process. The extent to which recommendations were accommodated is moot, although a number of commentators argue it was extensive, particularly with regards to specific provisions regarding transparency and the importance of implementing a victim-centred process. Civil society groups, for example, successfully opposed the recommendation from both the ANC and the NP that amnesty hearings should be held in camera.
South Africa was able to draw on a range of other Commission experiences from Latin America and elsewhere. Activists from those countries provided insights into the pros and cons of particular endeavours and experiences.
The ANC’s dominance in government and its support for an equitable process that examined violations on all sides of the conflict provided a powerful platform on which to craft the TRC legislation. Not everyone in the ruling party, or the liberation movement more generally, supported a process that would also inquire into its own abuses. Indeed, the extent to which these and related issues were discussed within political and trade union structures, as well as broader civil society is moot. Certainly there was structured engagement with organised sections of civil society, but this does not appear to have been extended into a more comprehensive process, which in turn has had repercussions in terms of understanding, support and expectations.
The draft Bill was published in October 1994, after which it received cabinet approval before being referred to a cabinet sub-committee for amendment and final drafting. The Bill was introduced into parliament in December 1994 and the public given 5 weeks to comment, during which time civil society lobbied extensively against secrecy provisions. The Bill was signed into law on 19 July 1995.
The TRC was tasked to focus on the most egregious human rights violations committed during the conflicts of the past. There has been considerable criticism relating to the TRC’ narrow terms of reference, and its subsequent failure to grapple with the structural aspects of apartheid and related victimisation. Its specific mandate, as set out in the Act, was:
“to provide for the investigation and the establishment of as complete a picture as possible of the nature and extent of all gross violations of human rights committed within or outside the Republic during the period 1 March 1996 to 5 December 1993, and emanating from the conflicts of the past, and of the fate or whereabouts of the victims of such violations; the granting of amnesty to certain persons in respect of acts associated with political objectives committed during the said period; the taking of measures aimed at the restoration of human and civil dignity and the rehabilitation of victims of gross violations of human rights; the reporting to the Nation about such violations and victims; the making of recommendations aimed at the prevention of the commission of gross violations of human rights.”
Despite the Commission’s relatively narrow focus, this was a massive undertaking and the Commission was given an unrealistic period of 24 months in which to complete its task. In addition, no provision was made for a preparation period in which staff would be recruited, structures established and strategies developed. The clock would start ticking from the moment President Mandela appointed the Commissioners.
The Act provided for the establishment of three Committees to deal with the relevant mandated areas:
- Human Rights Violations Committee – two core inter-related functions. Firstly, to conduct public hearings across the country where victims would be able to testify about violations they had suffered. Secondly, to conduct research and investigations into relevant gross human rights violations to address individual cases and provide relevant information for the Commission’s final report.
- Amnesty Committee – granted amnesty on the basis of key criteria relating to disclosure, the political nature of the act the time period in which the crime was committed, and an assessment of the proportionality between the nature of the offence and its related objective.
- Reparation and Rehabilitation Committee – responsible for the development of comprehensive recommendations for Government on reparation policy and how to implement it.
APPOINTING THE COMMISSIONERS
ATTITUDES TOWARDS THE TRC
After the legislation was passed, civil society groups continued to lobby for an open, transparent nomination and selection process. Although the Act allowed the President to select and appoint commissioners, Mandela introduced a public participatory process to affect this. He appointed a committee that would oversee a public nomination, selection and interview process. Civil society was encouraged to make nominations, resulting in the submission of 229 names, which the Committee narrowed down, and subsequently conducted public hearings with a short list of 46 candidates. 25 names were then forwarded to President Mandela, who chose 17 including some who had not been on the list. Interestingly, he chose to not take advantage of the option to appoint international commissioners.
The Commissioners came from a range of backgrounds and different parts of the country. There was representation from all racial groups, although whites were clearly over-represented with six positions. Seven women were appointed and including the Chairperson, three Christian ministers were included. None of the Commissioners were active politicians, although two were former parliamentarians. In addition, most of Commissioners had been actively engaged in some guise of socio-political activities relating to the past, drawn from the NGO, legal and medical fields. Not surprisingly, this meant that most Commissioners were drawn from within the broad parameters of the anti-apartheid movement.
Many in South Africa were fundamentally opposed to any kind of detailed introspection into the past. Primarily those who were either functionaries or beneficiaries of the apartheid system, including the security forces, the atomised rightwing political forces, as well as many of those associated with the homeland and self-governing regimes that complemented the regime articulated this position.
The TRC, it was argued, would be used as a political weapon against its opponents by a dominant ANC bent on retribution. While the NP begrudgingly accepted the inevitability of some sort of process, it continuously flagged its concerns about prejudice and political agendas. The ANC’s other partner in the government, the IFP, denounced the process from its inception, and refused to constructively engage in the debates that fed into the legislative process. Both the NP and IFP also criticised the appointment of many Commissioners, including the Chairperson, Archbishop Tutu, who was seen, especially by the IFP as staunchly pro-ANC, and the vice-Chairperson, Alex Boraine, with whom the NP had a history of altercation.
By and large these groups remained vocal in their opposition, although it could be argued that the attention given to them reflected their ability to influence the media, and as such was somewhat disproportionate in terms of the constituencies they represented. Nevertheless, they articulated a number of important issues, which in turn provided important reference points around which the Commission would have to plot its course.
More significant, yet less vocal, were the articulations of concerns from ordinary South Africans, many of who had been direct victims of apartheid repression and the related conflicts of the past. The bulk of these people had not been consulted during the legislative drafting process. Although most welcomed an opportunity to record and acknowledge what had taken place in the country, those who continued to seek redress through the criminal justice system vehemently opposed the inclusion of conditional amnesty provisions in the Commission’s legislation.
This led to a legal challenge of the constitutionality of the amnesty by three prominent anti-apartheid families, in what has become known as the AZAPO case. In a ground setting judgement, the newly formed Constitutional Court, upheld the constitutionality of removing the victims right to legal redress, but emphasised the imperative of proactively securing relevant information about the violations and the provision of reparations for victims and survivors.
Founded by legal statute and subject to the South Africa’s new constitutional dispensation, the TRC was bound by a new and largely untested legal framework that sought to provide the promotion and protection of a range of fundamental rights to all South Africans. Somewhat ironically, it was the alleged perpetrators of violations who sought to use these protections to constrain efforts by the Commission to fulfil its mandate. Consequently, considerable attention and resources were diverted by the Commission for purposes of navigating its way through this legal minefield.
Any assessment of what the TRC eventually achieved should take the environmental context and background into consideration. The Commission was faced with an intimidating array of substantive and procedural challenges from its inception. Despite favourable comparatives with other Commission processes elsewhere in the world, it was afforded inadequate human and financial resources to comprehensively address these challenges, many of which would continue to plague it throughout its existence and beyond.