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  T R C     C A T E G O R Y - 2. HUMAN RIGHTS VIOLATIONS
 
 
  2. HUMAN RIGHTS VIOLATIONS
    2.1 "As complete a picture as possible"
    2.2 "Causes"
    2.3 "Nature of"
    2.4 "Extent"
    2.5 Sample Case Studies
    2.6 Issues around investigations and corroboration
    2.7 Debates on "even-handedness"
 

 
  C A T E G O R Y     D E S C R I P T I O N
     
    Untitled Document HUMAN RIGHTS VIOLATIONS AND THE CONFLICTS OF THE PAST

From the mid to late 1970s onwards, a considerable amount of information about apartheid era conflicts and related human violations was amassed by domestic and international human rights organisations, academic institutions, faith communities, organs of state, political parties, the liberations movements and others. This material, although largely untested, provided an important, albeit unwieldy, body of evidence that highlighted a range of individual concerns and systemic abuses that had occurred during the apartheid era.   

The move from the mid 1980s towards negotiated settlement was also accompanied by an intensification of repression, insurgency and counter-insurgency. The central conflict between the liberation movement and the apartheid state was compounded and complicated by a number of related conflicts within and between proxies and surrogates of the key protagonists. These conflicts were also characterised by violations and involved a number of players, including homeland and self-governing states’ security forces and related political parties, elements within the liberation movements, and white right wing forces.

The situation was further complicated as South Africa’s conflict spilled over into neighbouring ‘frontline’ states, especially in Mozambique, Angola, Zimbabwe, Swaziland and Lesotho. Despite some notable efforts to record the devastation wreaked in these countries, the full extent of the violations and their consequences remains uncertain and an issue requiring considerable further attention.

Most allegations from this period were directed at the apartheid state, which was engaged in a range of indefensible actions to maintain white minority rule. Only after it had publicly committed itself to a negotiated settlement process did it start a process of officially investigating some of these allegations (i.e. Harms and Goldstone Commissions). Even then, these efforts fundamentally lacked credibility, as they relied on the very same criminal justice system to do the work, core sections of which had been heavily politicised in favour of maintaining the status quo.

Leaving the security forces to maintain ‘law and order’ during the negotiation process was akin to allowing the fox to guard the henhouse and the absence of credible innovative approaches to the security situation was undoubtedly a significant contributing factor to the bloodletting that erupted during this period. Any meaningful examination of past violations and related responsibilities would have to wait for the new political dispensation.

DEVELOPING AS COMPLETE A PICTURE AS POSSIBLE

The Truth Commission was tasked: “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 key vehicle for these endeavours was the Human Rights Violation Committee, which operated from four regional offices with the assistance of investigation and research personnel based in each of these locales. The Committee oversaw the statement taking process, which relied on a proactive engagement with communities across the country; over 22,000 statements were taken relating to over 40,000 violations. Approximately 2000 deponents testified at a series of over 60 public hearings held across the country.

The Committee presided over several “in-depth” investigations and related hearings, both public and in camera, including enquiries into the role of the state’s security forces and the armed wings of the ANC and PAC, the role of the State Security Council, and a set of thematic hearings that included exploration of the faith communities, the media, judiciary, business and so on. Political parties were also invited to make public submissions and answer detailed questions from the Commission.

Despite these efforts, a number of issues were neglected or inadequately addressed: many parts of the country, for example, did not have an opportunity to engage with the Commission, even though they had been subjected to widespread repression. This included a number of homeland areas (i.e. Bophuthatswana), large swathes of KwaZulu Natal and affected locations in areas such as the Western Transvaal and the Vaal Triangle. This reflected some of the practical and strategic limitations within the Commission and does not appear to have been a deliberate effort to exclude.  

Many incidents of abuse were not recorded by the TRC because many activists themselves did not engage the Commission for one reason or another. The IFP actively discouraged its members from cooperating, and the TRC itself treated the IFP with ‘kid gloves’ preferring not to inflame tensions by utilising its powers of subpoena to force engagement. As the deadline approached for the receipt of statements relating to human rights violations, the TRC warned the IFP that its members might lose out on reparations payments. Realizing this could have serious political repercussions, the IFP changed its position and encouraged people to submit statements before the deadline.  Several thousand people then came forward to submit statements, but the quality of these statements reflected their rushed preparation, and thousands more were unable to benefit from the IFP’s apparent turn around.

The TRC’s investigation unit did not develop a clear strategic plan in terms of investigations, and although it attempted to focus on ‘window cases’ that would shine some light on the systematic nature of the violations, much more could have been done to establish this and related command responsibilities. Consequently, most cases brought to the Commission did not receive the attention of the investigation unit, beyond efforts to corroborate basic facts contained in statement submissions – and these endeavours were largely intended to facilitate the Commission’s ‘findings’ process in terms of whether a deponent could be declared a victim.

Disclosures before the amnesty committee provided a unique insight and opportunity to develop a clearer picture of the violations perpetrated. Although a substantial amount of new information was subsequently gleaned through this process, it was never integrated with the Human Rights Violation Committee processes, and as such an opportunity for a more detailed and strategic engagement with these critical disclosures was lost.

Despite these drawbacks, a vast catalogue of information was amassed by the Commission regarding violations, which in turn provides an extremely valuable foundation for analysis and further enquiry. Not surprisingly, with limited time and resources, the TRC was simply unable to get to grips with all this information, and much of what was accrued remains undeveloped and under-exploited.
           

EXPLORING THE CAUSES OF VIOLATIONS

The TRC received detailed information on violations from victims and perpetrators, as well as those who has been monitoring and reporting on these abuses. Understanding the causes of these violations required a combination of investigation, research and analysis. To facilitate this, the TRC also allowed a range of key actors to offer their perspectives and opinions on what had happened and why, even though contributions tended to be selective and self-serving. Party political positions did not vary a great deal from positions already adopted, although the hearing process provided an unprecedented opportunity to interrogate the rationales behind particular standpoints

During the first half of 1996, the TRC met with the leaders of the key political parties to discuss the work of the Commission. The Commission approached each political party individually and asked them to make a submission, and all agreed to do so.  This first set of public hearings were not very confrontational, and provided a platform for the parties to explain their positions, with some limited opportunity for questions and clarification. The hearings, however, raised many more questions, which in turn prompted the Commission to ask for a second round of hearings with the major parties during 1997. All the parties were sent a list of specific questions. Both the ANC and NP responded and subsequently appeared before the Commission again in public. This provided the TRC with an unprecedented opportunity to ask pointed and detailed questions about specific actions, policies and importantly the context in which these things happened, and the role of specific actors and institutions.

Despite acknowledging the hurt caused by discriminatory apartheid policies, the National Party systematically denied or avoided engagement regarding its culpability for widespread violations, but instead presented itself as the custodian of law and order, and blamed the liberation movements for embracing violent ideologies. It pointed to the ANC’s intolerance of other such as the IFP who chose a different path, and claimed its association to a revolutionary Marxist methodologies and objectives inevitably led it on a path to violence. 

Even in the face of admissions from senior members of the security forces that they were involved in violations, and the uncovering of documentation that strongly inferred that such tactics were sanctioned at a senior level within the state politico-security structures, they denied that they approved of any illegal actions, instead arguing that these actions were the work of renegade individuals and units. The TRC’s exasperation with the NP boiled over during the hearings, resulting in allegations from FW de Klerk that his party was being unfairly treated compared with the comradely way the Commission dealt with the ANC. They called for the resignation of the TRC’s chief investigator and the deputy chairperson of the Commission, Alex Boraine, prompting an unprecedented apology to the NP from the Commission.

The ANC (and the PAC) accused the state of embarking on a vicious campaign of repression designed to avert the inevitable march towards democracy and its associated freedoms. The ANC (unlike the PAC) had committed itself to the Geneva Conventions and acknowledged a range of shortcomings, admitting its cadres and supporters had been responsible for a number of violations that fell outside its policies. It provided contextual explanations for many of these situations, and pointing out that they had little control over some elements in the prevailing circumstances. Nevertheless, the ANC provided the TRC with an unprecedented submission that although limited in many respects, contained important detail from which certain conclusions could be drawn and further enquiries made. Ironically, many of its findings about the ANC were based on the materials provided by them. It was these findings that led to the ANC’s unsuccessful challenge to prevent the release of the TRC’s interim report in October 1998.

For many, the PAC remained a largely unknown quantity during the anti-apartheid era, and it only appeared to develop its public profile in relation to the violence during the negotiation period itself. Its contribution to the TRC processes at the armed forces hearings was controversial in that (unlike the ANC) it justified its attacks on white civilians, as legitimate targets of armed struggle, and acknowledged its cadres were entitled to engage in criminal acts (such as armed robbery) if they forwarded the aims and objectives of the movement. Whilst this understandably led to a number of adverse findings by the Commission, it also placed on record the policy prerogatives of the PAC, and thereby facilitated a number of its cadres amnesty applications.

 The IFP attended the initial round of party political hearings, but subsequently refused to cooperate with the Commission. In their submission, they blamed both the state and (in particular) the ANC for the violence and violations, portraying itself as an innocent victim that was opposed to apartheid, but also opposed to the liberation movements’ adoption of armed struggle and sanctions. As a result, they were portrayed as stooges and targeted for retribution. Violations by IFP members and supporters were either justified in terms of self-defence, or the work of renegade elements.  The IFP’s hostility to the TRC continued throughout the process and beyond, accusing it of ignoring the true nature of ‘black on black’ conflict and the related culpability of the ANC and its allies in that violence.

In late 1997, the Commission invited and subpoenaed more than 20 former and current political and military leaders across the political spectrum to present evidence at hearings into the roles played by various armed forces and the State Security Council. A series of armed forces hearings were also convened involving submissions from police and military state security forces, and the ANC and PAC’s armed wings, Umkhonto we Sizwe and APLA.

The TRC made adverse findings against all the main protagonists in terms of their responsibility for violations. In doing so, it sought to avoid equating responsibility, instead describing apartheid and its related violations as the primary cancer, and violations associated with the struggle against it as secondary cancer. Quantitatively, the state security forces were identified as the primary perpetrator, followed by the IFP and then the ANC. 

NATURE OF VIOLATIONS

The TRC was mandated to focus on ‘gross human rights violations’. This included issues of murder and assassinations, bombings, torture and beatings, shootings, cruel inhuman and degrading treatment, detention without trial, political trials and related incarceration, miscarriages of justice and so on. Specific attention was given to abductions and disappearances.

Key events, such as the Soweto (1976) and Vaal (1984) uprisings were examined, although not in as much detail as some might have expected. Greater attention was given to specific cases, or sets of cases, such as the ‘Bisho Massacre’ in the Eastern Cape, the  ‘Trojan Horse’ and ‘Gugulethu 7’ incidents in the Western Cape, the role of the ‘Khumalo Gang’ in Thokoza on the East Rand, and the 1988 disappearance of Stanza Bopape. But even then, these processes had their limitations.

The Commission focused on those elements directly responsible for violations, such as the counter-insurgency units within the police (i.e. Vlakplaas) and the military (i.e. Civil Cooperation Bureau and Special Forces). Specific attention was also given to the State’s chemical and biological weapons programme and related violations.      Collusion between state security forces and proxy elements, such as the Witdoeke and Mbhokoto vigilante groups in the Western Cape and KwaNdebele, also came under scrutiny. Particular attention was also given to the state’s relationship with the IFP, especially with regards to military training in the 1980s, the provision of weapons by the security police and other state funding. Limited attention was given to right wing related atrocities.

The TRC’s focus, or lack of it, on violations perpetrated by the liberation movements (especially the ANC) has become a source of considerable controversy. One can demonstrate major limitations relating to investigations around all the key protagonists; so, at one level, the failure to pursue a number of issues involving the ANC and its allies is not unique. This did, however, reinforce perceptions that the Commission was biased. It should be pointed out, however, that the ANC (unlike the other key protagonists) provided the TRC with a relatively detailed list of violations for which it took responsibility, as well as copies of its internal Commissions of inquiry into violations in the camps. In addition, the Human Rights Violation Committee focused its most detailed enquiry into the role and activities of the Mandela United Football Club and the associated responsibilities of Winnie Madikizela Mandela and the security police, which involved 17 days of in camera and public hearings.

Quantitatively, the Commission received more submissions from the public relating to violations in the early 1990s; this reflected the period in which most violence occurred. Interestingly, however, more detailed investigations tended to focus on violations that occurred during the 1980s. With the exception of accessing materials related to the Steyn Commission, as well as some Goldstone Commission materials relating to train violence and other matters, which contributed to the Commission’s own findings relating to the ‘third force’, the Commission did little to uncover the causes and associated responsibilities of violence during this period. It was, however, able to draw on a limited number of amnesty applications from SDU, SPU and security force members to shed some light on what transpired in certain areas.

UNCOVERING THE TRUTH - THE LIMITATIONS OF TRC INVESTIGATIONS

Debate about the truths that emerged from the TRC process will and should continue - much of it will focus on the nature and quality of the data collected, interpreted and analysed by the Commission.. The role of the investigation unit (IU) in this regard was pivotal.

This unit devoted most of its time and resources to the HRV process with only a handful of the members conducting investigations on behalf of the amnesty committee. The main transfer of IU members to amnesty investigations took place towards the end of 1997. All remaining IU members were transferred to amnesty work at the end of July 1998, at which time all HRV investigations were ‘concluded’.

The extent to which IU activities can be accurately described as investigations has yet to be properly assessed. Much has been said about the Unit’s investigative ‘breakthroughs’, but in general it would appear that little primary investigation was undertaken. Detailed investigations by the IU occurred in only a handful of cases in each region. This, despite undertakings, often made at public hearings by members of the HRV Committee, that cases would be referred to the IU for investigation.

It was only towards the end of 1996 that a decision was taken as to how the bulk of statements made to the HRV Committee would be handled. This became known as the ‘corroboration’ process. Corroboration mainly involved accessing and assessing official and unofficial documentation that could support the allegations made in a particular submission. This process cannot really be construed as primary ‘investigation’ per se. For example, if someone submitted a claim that his or her son or daughter had been killed in a demonstration, the IU would only attempt to verify that this person did indeed die in that demonstration. It would not investigate the circumstances in which the alleged violation transpired or call alleged perpetrators before the Commission.

Even though many people specifically requested the TRC to find out what had happened and why, with respect to specific violations, this line of inquiry was generally not pursued, and efforts were concentrated on establishing that the basic facts of the submission were accurate.