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  T R C     C A T E G O R Y - 3. AMNESTY
 
 
  3. AMNESTY
    3.1 "Full disclosure"
    3.2 Amnesty: Debates and Decisions
    3.3 "Perpetrators"
 

 
  C A T E G O R Y     D E S C R I P T I O N
     
    Untitled Document AMNESTY AND THE TRUTH AND RECONCILIATION COMMISSION

South Africa’s TRC is the only truth commission to have been given powers of amnesty. The 1993 Interim Constitution made specific provision for an amnesty process, but did not prescribe what this would entail. Indeed, the wording of the Constitution’s preamble was deliberately vague, in effect, leaving it up to a subsequent political process to work out the detail. Although the undertaking to indemnify perpetrators was a bitter pill to swallow, especially for those within the anti-apartheid movement, most commentators agree that momentum towards transition would have been fundamentally undermined without it.

Although the motivation for a general amnesty had come primarily from representatives of the apartheid state and its security forces, there were powerful elements within the liberation movement who recognised and supported this position. Former Umkhonto we Sizwe chief and post-apartheid’s first Minister of Defence, the late Joe Modise, for example, had reportedly assured apartheid defence force negotiators that this is what would be delivered. It was a promise he was unable to deliver on.

The National Party government had laid the groundwork for a general amnesty with the introduction of the Further Indemnity legislation in 1992. The Act was in stark contrast to the 1990 indemnity legislation (that had facilitated the return of liberation movement cadres to provide a more conducive environment for the negotiation process), as it did not require public disclosure of the acts for which the individual would be indemnified, and allowed the decision on indemnification to be taken by a government-appointed commission that reviewed the applications secretly. The legislation, in the words of one NGO commentator “effectively created an obligation to suppress the truth.”

Despite the ambiguity of the phraseology regarding a prospective amnesty contained in the preamble of the Interim Constitution, in the weeks before the April 1994 elections, President De Klerk published a list of over 4,000 security force members, mainly police officers, whom he claimed had been indemnified. Within weeks of the subsequent election, however, the ANC dominated cabinet reviewed and overturned this decision, insisting that these individuals must be subjected to whatever amnesty process was subsequently decided upon by the new government.

Over the next few months, the draft legislation began to take shape. The decision to interrogate the role and responsibilities of all parties involved in the conflicts of the past, including culpability for the commission of gross human rights violations was a difficult decision to accept for some in the liberation movement, but in the absence of an outright victor, this arrangement reflected an accommodation of interests emblematic of the negotiated transition.

The Bill included detail of a conditional amnesty process that would conduct its affairs in camera. Civil society groupings lobbying around these issues mounted a strident campaign against the secrecy clauses and in so doing successfully contributed to the decision that the amnesty hearings process would be a public affair.

Chapter Four of the TRC’s founding legislation outlined the mechanisms and procedures of the amnesty process. These provided for the establishment of an Amnesty Committee (the Committee) and empowered it to consider and decide on applications for amnesty. The Act provided that the Committee could grant amnesty where it was satisfied that the application complied with the formal requirements of the Act; that the incident in question took place within specific time parameters, that it constituted an act associated with a political objective, that the applicant had made full disclosure of all the relevant facts, and that the nature of the violation was proportionate to the objective sought. The Act provided for immunity from criminal and civil prosecution for those granted amnesty.

Some within the anti-apartheid movement vehemently opposed any form of amnesty, leading the Azanian People’s Organisation and several prominent anti-apartheid families to challenge the constitutionality of the amnesty provisions. In a contentious judgement that skirted around South Africa’s adherence to international legal principles and obligations, the Constitutional Court accepted the imperative of an amnesty within South Africa’s particular set of circumstances, a necessary gambit that would offer some measure of restorative justice for victims and survivors of gross human rights violations.

Indeed, linking amnesty to specific criteria, such as full disclosure, was construed by the Court in its judgement as part of a “a difficult, sensitive, perhaps even agonising, balancing act between the need for justice to victims of past abuse and the need for reconciliation and rapid transition to a new future; between encouragement to wrongdoers to help in the discovery of the truth and the need for reparations for the victims of that truth; between a correction in the old and the creation of the new. It is an exercise of immense difficulty interacting in a vast network of political, emotional, ethical and logistical considerations.”
 
The 1996 Constitution subsequently reaffirmed the amnesty provisions contained in the interim constitution, as well as the TRC legislation. This affirmation has underwritten a general understanding that the amnesty process was an unsavoury, yet necessary step, posited as ‘middle ground’ between the advocates of retribution and the champions of impunity.  There remains considerable disagreement, however, as to whether that was really the case.

CONDITIONS FOR AMNESTY

The quasi-judicial nature of amnesty process required an amnesty committee, chaired by judge to preside over proceedings (i.e. testimony and cross-examination) and evaluate whether specific criteria had been fulfilled. Each specific amnesty condition provoked some measure of controversy:

The period under review - the interim constitution stipulated that the amnesty process would have a cut off date after 8 October 1990, but before 6 December 1993. The TRC’s legislation designated the period from 1 March 1960, the immediate period before the Sharpeville Massacre to 5 December 1993, the date on which the Interim Constitution came into effect. This excluded a significant number of violent political incidents that occurred after this date. Intensive lobbying from a range of groups including political parties as diverse as the Pan Africanist Congress and the Freedom Front, and supported by the Commission, persuaded the government to extend the cut-off date to 10 May 1994, the date of President Mandela’s inauguration. Even then, there were a number of violent political incidents, especially in KwaZulu Natal, that were excluded because they occurred after this date. Many of these incidents remain an integral part of the ‘unfinished business’ of South Africa’s past conflicts.

Violations with political objectives – the TRC legislation stipulated that amnesty could only be granted for acts associated with a political objective. Although detailed criteria detailing what would constitute ‘political objective’ were outlined in the Act, there remained concerns that this restricted an appreciation of the interface between crime and politics that permeated all sides of the conflict. A more detailed evaluation of refusals to grant amnesty on the basis that this criteria was not fulfilled, remains outstanding. This situation is further compounded by the lack of public disclosure surrounding the bulk of cases that were refused on the basis that the political objective criterion was not satisfied. The extent to which the Amnesty Committee has contributed to the presentation of a ‘sanitised’ past, where politics and crime is neatly delineated remains moot.

Full disclosure – this remains one of the most controversial and subjective aspects of the amnesty process, and the basis upon which many victims and survivors opposed the granting of amnesty – claiming that applicants had not revealed the full story. Full disclosure related only to the specific matter(s) for which the individual was applying for amnesty, thereby entitling the applicant to disclose selectively. Not surprisingly this has limited the extent of disclosures made and frustrated the TRC’s ability to fulfil its mandate to “establish as complete a picture as possible.”

Testing whether or not full disclosure was attained, even in these matters, varied considerably. Perhaps the greatest handicap to determining whether what was disclosed was the truth was the lack of an effective investigative capacity. Applications were submitted, sometimes with the barest of detail. The Committee frequently corresponded with individual applicants (or their attorneys, for those that had them), requesting further facts. The capacity to check and verify information provided or to pursue leads was acutely limited, and the evidence gathering focused on official documents, and other secondary resources, as opposed to statement taking, or other primary investigation. This resulted in a heavy reliance on cross-examination by counsel for victims and the Committee to test the versions presented and carefully crafted amnesty applications that neatly dovetailed were effectively immune, invariably resulting with those applicants getting the benefit of the doubt. Consideration of these matters was further complicated by inequitable access and support for applicants from legal applicants.

Although there has been considerable praise for the work undertaken by the Amnesty Committee, concerns have been raised in some cases about the quality of the Committee’s preparation and the cursory inquiry. In particular, concerns raised by victims’ representatives regarding applicants’ failure to fulfil the requirements of full disclosure were simply not addressed in several subsequent amnesty judgements, which in turn raised questions about the Committee’s commitment to victim-sensitivity.

Proportionality – Determining the relationship between the act and the political objective pursued, and “in particular” the directness and proximity of the relationship and proportionality of the act … to the objective pursued”, was another site of considerable controversy, and it was frequently unclear how and whether this criterion was employed.  It is evident that in some cases it was not, although a more detailed assessment of how this and other criteria was ostensibly utilised and addressed remains outstanding.

THE END RESULTS OF THE AMNESTY PROCESS

The volume of amnesty applications submitted stunned the TRC; as Parliament had envisaged an eighteen to two year process would be adequate to process the envisaged caseload. By the end of April 1996, only 197 applications had been received. At this time, five Committee members and four staff members were dealing with the applications. By the end of 1997, however, the Committee had received over 7000 applications relating to more than 14 000 different incidents. The Committee was expanded to nineteen Committee members and ninety-four staff members, allowing them to hear up to six matters at any one time.

In total, 7116 applications were received before the cut-off date for receipt of applications. There is some speculation about how many more perpetrators would have come forward if there had been a greater strategic synergy with HRV investigative processes, as it is evident that some of these investigations did prompt perpetrators to come forward. What is evident, however, is that there was only a limited correlation between the 22,000 cases submitted to the HRV Committee and the cases subjected to the amnesty process. In other words, there were potentially thousands more applicants.

The bulk of applications came from individuals claiming to be primarily cadres of the ANC and to a lesser extent, the PAC. Many of these claimed to be members or proxies of their respective armed wings, Umkhonto we Sizwe and the Azanian Peoples Liberation Army (APLA).  A relatively small, but significant, number of applications were received from apartheid security force, especially former security police officials, including a significant number of senior officers, as well as many individuals directly involved in counter-insurgency activities. About half of these applications related to incidents that occurred during the period 1985-1990, the period in which there was an unprecedented intensification of repression, insurgency and counter-insurgency. Only a handful of applications were received from the Inkatha Freedom Party, as well as former homeland security force members, and other groupings such as the right wing, the United Democratic Front and so on. There were also a number of ‘special’ categories of cases that the Amnesty Committee developed particular approaches to, including matters relating to self-defence units, witchcraft cases, and APLA. A detailed (quantitative and qualitative review) of who did what to whom, where and when, in terms of the amnesty applications has yet to be undertaken.

65% of applications came from people in custody, and most of these were refused ‘in chambers’. In fact, the Committee rejected over two thirds (5143 cases) of the total number of applications administratively: over 3500 of these because the Committee found there was no political objective; a further 650 because the incident for which amnesty was applied for fell beyond the cut-off date for amnesty; over 400 defective applications, and; in almost 200 cases, applicants argued that they had been wrongly convicted. Details of applicants, acts and violations relating to these matters were not publicly disclosed, and none have been subjected to a review process.

The amnesty process required that applications involving ‘gross human rights violations’, as defined in the Act, be heard in public. The Commission estimated that this type of application accounted for about 20% of the total.  362 applicants were refused amnesty after public hearings, although 1167 individuals were granted full amnesty (50 of which were ‘in chambers’) and a further 145 were granted amnesty for some incidents but not others (involving matters were the application was either rejected or the application was withdrawn).

The media covered most of the hearings, and provided extensive coverage in high profile matters, records of which provide a rich complementary resource. The public hearing process presented a logistical nightmare as literally hundreds of hearings were convened across the country, which required massive administrative, legal and substantial material preparation. It took the Committee over five and a half years to complete its work, over three years after the Commission had handed over its ‘interim’ report to President Mandela in October 1998.

REVIEWING AMNESTY DECISIONS

The Amnesty Committee was obliged to publicly provide reasoned decisions in relation to all matters that they either accepted or rejected. There is considerable contention in some matters as to whether this obligation was actually fulfilled. Allegations that the Committee was erratic in its decision-making, prompted a detailed contribution in the final report outlining the reasons why the Committee could not employ a system of precedents to facilitate greater consistency in their decision making. A comprehensive examination of most amnesty decisions as they relate to amnesty criteria and the substantive content of applications remains outstanding.

Committee decisions could be subjected to review by the High Court, and to date only 8 review proceedings had been filed against them. Details of these cases are contained in Volume Six of the final report. The opportunity and capacity to secure reviews have and remain exceptionally limited, and most victims and perpetrators who had felt unsatisfied by the process have been unable to seek the necessary relief to challenge these decisions.

 

PROSPECTS FOR AMNESTY IN THE POST-TRC DISPENSATION?

Although the Commission recorded over 30,000 violations, only a small percentage of these matters were addressed through the amnesty process. Despite many important revelations, it is evident that many, if not most apartheid era torturers and killers (from all sides of the conflict) did not come clean for one reason or another. Particular focus in this regard has been given to members of the apartheid security forces (especially from within the military) and the IFP, but this also includes significant numbers from within the ANC and PAC (and others) who were unwilling or unable to submit themselves to the process.

The TRC forwarded a list of 800 of its cases to the National Prosecuting Authority, which they felt required further investigation and consideration for prosecution. These and other outstanding matters relating to past violations, have prompted an ongoing and ‘primarily behind the scenes’ discussions between government and some of the interested parties about how to proceed. The public have remained largely in the dark about these developments, but periodically the media have reported on prospective deals between apartheid era security force chiefs and the ANC. Civil society groupings, who remain generally weak and atomised have threatened to challenge any efforts to introduce further measures of impunity. President Mbeki and various senior ANC figures have consistently denied that they will introduce a general amnesty process, and have instead relied on the selective use of presidential prerogative for pardons, and most recently the introduction of a draft prosecution policy that, if adopted, will enable the prosecution authorities greater latitude to provide immunity from criminal prosecution, in return for full disclosure (in camera) and cooperation from perpetrators who come forward.