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This document is from the archive of the Africa Policy E-Journal, published by the Africa Policy Information Center (APIC) from 1995 to 2001 and by Africa Action from 2001 to 2003. APIC was merged into Africa Action in 2001. Please note that many outdated links in this archived document may not work.

South Africa: Truth Commission
Any links to other sites in this file from 1996 are not clickable,
given the difficulty in maintaining up-to-date links in old files.
However, we hope they may still provide leads for your research.
South Africa: Truth Commission
Date Distributed (ymd): 960510

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Note: In South Africa: Labor Statement, distributed on 960507,
there is a reference to a policy statement by the South Africa
Foundation.  This statement is also available on-line, at the Web
site of the Chamber of Mines of South Africa:
http://www.bullion.org.za/saf/saf.htm

*****************************************************
South Africa's Truth and Reconciliation Commission convened
its first hearings on April 15, 1996.  The following document
summarizes the history and the key issues confronting the
Truth Commission. It is an edited version of material prepared
by Bronwen Manby, research associate of Human Rights
Watch/Africa's London office, in connection with her
presentation at a Human Rights Watch briefing in Washington on
March 12, 1996.   For additional information, please contact:

Human Rights Watch/Africa, 33 Islington High Street, London N1
9LH, UK; Tel: +44-171-713-1995; Fax: +44-171-713-1800; E-mail:
hrwatchuk@gn.apc.org.

or visit the Truth Commission's new World Wide Web site at:
http://www.truth.org.za/

SOUTH AFRICA'S TRUTH COMMISSION
Background to issues of accountability in South Africa

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.

ANC Abuses

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.

1. Committee on Human Rights Violations:  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.)

2. Committee on Reparation and Rehabilitation: 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 released
from 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.

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This material is being reposted for wider distribution by the
Africa Policy Information Center (APIC). APIC's primary
objective is to widen the policy debate in the United States
around African issues and the U.S. role in Africa, by
concentrating on providing accessible policy-relevant
information and analysis usable by a wide range of groups and
individuals. APIC is affiliated with the Washington Office on
Africa (WOA), a not-for-profit church, trade union and civil
rights group supported organization that works with Congress
on Africa-related legislation.

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