CHAIRPERSON: Ons heet u almal baie hartlik welkom hierso.
( welcome in Xhosa) But we want to welcome especially the leader and representatives of the African Christian Democratic Party. We are grateful that although you were founded after, as it were, our cut-off date, you very generously agreed that you would want to share with us your insights and perspectives on the work that we are supposed to be doing which is to try to give as full, as complete a picture of gross human rights violations which resulted from the conflict of the past during this specified period, March 1960 to December 1993 with the hope that we would also get recommendations about how such things would be prevented from happening ever again in our country.
We are aware that although you were formed after this time you have been in South Africa a long while before that. We have all in different ways been involved in the conflict either as perpetrators or as victims/survivors and the Act which is the act for promoting national unity and reconciliation requires that we should get as
many perspectives as possible, the perspectives of the victims and the perspectives of perpetrators that we should be able to be given an idea of the context and in certain cases, where people were carrying out the instructions or policies of various political organisations that we should know what the objectives of those political parties were and how they intended to attain those objectives.
We are keen to hear from yourselves how you have seen this conflict of the past, what insights and perspectives you may be able to bring to our attention and whether you have any specific recommendations about how we may be able to put to the President and so to the country, suggestions relating to how you prevent a recurrence of these gross violations of human rights.
We have already had one submission from a political party this morning. You are the second in line as you probably know. This is the first of a different kind of hearing. We have deliberately taken the decision that we would have what we might characterise as victim/ survivor hearings in which those who have in the past have not had the opportunity of doing so, granted them a platform, a forum in which they were able to relate their stories and this is also a requirement of the Act to assist them in the rehabilitation of their civic and human dignity. And we have also sought to stress that in these hearings there have been cries from various people - we want to know! And I'm hoping I mean that the process will provide us with the kind of truth that people are seeking, in who gave instructions, why, if a loved one is missing, is this person still alive? If this person is dead, where are their remains etc?
And so we welcome you and look forward to sharing your contribution which we are sure will make an impact on the healing process in our land as we try to transcend the conflicts of the past and work for our national unity and reconciliation.
Before I invite you to present formally to me your submission before you deal with it, may I introduce the panel that is here with me.
We have on the extreme right Advocate Denzil Potgieter, he is a Commissioner and a member of the Human Rights Violations Committee based here in Cape Town.
Next to him is Dr Mampula Ramashala, she's also a Commissioner and a member of the Reparations and Rehabilitation Committee.
Dr Alex Boraine is the deputy chair of the Commission and a member of the Human Rights Violations Committee and based in the headquarters here in Cape Town.
Dumisa Ntsebeza, he's a Commissioner and he's the head of the Investigative Unit of the Commission, a member of the Human Rights Violations Committee, and based here in Cape Town.
Mary Burton, a Commissioner and a member of the Human Rights Violations Committee based here in Cape Town.
On the extreme right is Chris de Jager who is an advocate and he's a Commissioner and a member of the Amnesty Committee.
Now may I invite you please to - thank you very much thank you. I will then call on you Mr Green to make your presentation. Thank you.
MR GREEN: The honourable Archbishop Desmond Tutu, Chairperson of Truth and Reconciliation Commission, honourable Deputy Chairperson Dr Alex Boraine and honourable Commissioners Advocate Chris de Jager, Advocate Denzil Potgieter, Dr Mampula Ramashala, Mr Dumisa Ntsebeza and Mrs Mary Burton, on behalf of the African Christian Democratic Party I just wish to start our input by expressing our sincere appreciation for your invitation.
As a newly formed political party barely three years old, we understand that we might as a political party not have been directly involved with the conflict but as correctly expressed by the Chairperson we were all members of the South African society and therefore we were either part of the conflict, we were either part of the problem, or we were part of the solution. Now as a political party we think there are certain aspects which we can contribute towards as far as the solutions are concerned but also as far as the understanding of truth and reconciliation is concerned.
As far as the issue of repentance is concerned, just as we feel that as a Christian political party we might be able to bring a dimension that has not been brought before, and it is with this in mind that I would like to start my input or our input.
There is a proverb which states that the heart is the organ that sees better than the eye. The extension of this is that what the heart sometimes sees may not be what conventional wisdom or the status quo may prescribe. The Truth and Reconciliation Commission is metaphorically the heart of the nation. During this transition period in our country's history and it's task is to apply the correct wisdom about what it reads about either the receding or the resurgent currents that flow through our society, whether they are ideological, moral or any other trends and to employ persuasive fronts for those currents, it may perceive as contributing positive developments to our society.
In our submission we would like to deal with certain concepts such as truth and justice, reconciliation and amnesty, repentance and forgiveness, and restitution from a Biblical perspective.
We would also forward recommendations in terms of Section, and here we would want to add Section 4b up to 4d and we would just like you to add the numeral 4 of this institution of course which is the TRC, of measures that could be followed regarding the granting of reparations to victims and measures aimed at rehabilitating and restoring dignity to victims. And we'd also like to find answers to questions as, does the exposure of the truth in itself have the power to heal? Secondly, can a nation experience true and lasting reconciliation without reference to God and His law? And thirdly does God value Amnesty, that is forgiveness greater than justice? And must the one be sacrificed in order to have the other?
The Biblical Christian recognises that God is the centre of all that is and that he is the answer to the questions of origin, of knowledge, of value and destiny. It is therefore not possible to effectively and justly operate as the Truth Commission without reference to God. Any attempt to do so cannot succeed and ultimately will result in scepticism, cynicism and despair. It is also likely to result in the very strife and anarchy the Truth Commission seeks to avoid. To the secular humanist mind truth is relative, it is based on the knowledge and value of man which fluctuates as man changes his mind. It becomes very difficult to define truth because it varies from person to person. Truth becomes circumstantially based and not dependent on Divine principle. Truth in this context could refer to the evidence as given and the testimonies of witnesses. Frederick Moore Vincen, an American Chief Justice said, and I quote,
"Nothing is more certain in modern society than the principal that there are no absolutes".
For Vincen who is a relativist there was no truth. No absolute right or no absolute wrong.
The possibility of true knowledge concerning ultimate reality is denied by relativism and to ...(indistinct) that man cannot know God if he exists, nor can he know the world of nature truly. He can use reality but he cannot truly know it. To deny that there is any absolute truth and absolute knowledge is to deny that there is a God who is the creator and lord over all things and with order and truth governs all things and is the source of all truth and all knowledge. If there is no absolute knowledge in God and from God in his revelation then the only absolute in any man's life is himself. Every man becomes his own god, his own law and his own source of knowledge.
One of the challenges of the Truth Commission is to reveal to the nation the full objective truth regarding human rights violations perpetrated in the past 40 years. What the nation needs is not a politically correct version of the truth, but the full objective truth irrespective of which political parties of leaders would be exposed when the truth is known.
Let us now deal with the concepts of amnesty and reconciliation from a biblical perspective. The idea of truth, amnesty and reconciliation parallels the Christian experience in the spiritual realm. To obtain forgiveness from God we must confess our sins, that is we must tell the truth. We must ask for forgiveness, that is we must apply for Divine amnesty and then experience reconciliation first with God and then with others. In principal we cannot object to the idea as a process and as we see it unfolding in the Truth Commission. The Biblical Christian is more concerned with God's true reconciliation and realises that there may be pain and confrontation involved in attaining it. Reconciliation involves forgiveness on the one hand and true repentance on the other for it to be effective. There must in both parties be an internal change of heart for the bitterness and the hostilities to be destroyed. The notion of forgiveness and amnesty has a direct bearing on our understanding of the concept, reconciliation.
When a crime is committed there are at least, from a Christian perspective, three offended parties. Firstly God, secondly the State and then the victim. When the State offers amnesty it is merely offering a form of legal, statutory and constitutional forgiveness. It forgives as the state but not as the victim or as God. While the State may choose to forgive by granting amnesty, it cannot automatically legislate the victim to forgive. If the victim does not forgive, then how can there be any real reconciliation? There can of course be a sort of resignation that the matter is now settled, but that it is not reconciliation. If there is no personal forgiveness expressed by the victim to the offender, the bitterness and hatred may continue indefinitely and this we think is one of the greatest dangers as far as the process is concerned. The TRC then simply becomes a vehicle to keep bad memories and resentment alive and we hope that this would not happen or that this is not about to happen.
The key element that we in the ACDP ascribe to, and which we believe is essential to all spheres of political, civil and economic life is justice. Justice cannot be compromised, nor do we believe it should be diminished, to utilitarianism pragmatism. The Truth and Reconciliation Commission must endeavour to establish the impression that justice has prevailed throughout all the proceedings. Justice is first and foremost a product of spirituality. God has built into the structure of the universe a Divine order which corresponds to a higher law decreed by him.
Two of the basic components of this higher law are justice and righteousness. However in a secular society, justice is not reflected by a higher law but is determined by the will of the legislator, law is simply technique and justice becomes relative. The question may be asked, how does justice as spirituality then relate to the Truth and Reconciliation Commission. It relates to the TRC in that the Commission can recapture the spiritual value that underpins justice. The Commission is in the position to do this because it is not a tribunal, it is more by general design a confessional forum. Conversely secular law by it's philosophy and nature no longer calls people to something higher. We therefore see that the TRC can facilitate ways to fill this gap and do this in conjunction with churches, with synagogues and with mosques.
Our Christian history has shown us that through the death and the resurrection of Jesus Christ and the lesson we can draw from it, how relevant that event is to our present circumstances, it as Christ reconciled us to God that we reach a spiritual renewal and maturity. It is by reawakening the spirituality in our people that the work of the TRC combined with other institutions will gain greater depth and comprehension among our people. It is then also through the spiritual context that the natural justice with its limitations may be deemed acceptable and the people of this country will be able to fully understand the statements that was made by Patricia Alwyn, ex president of Chile, and which we think the TRC supports in spirit and we wish to quote these words.
"The main duty of political leaders is to persue the common good. This entails harmonising the longing for justice with other values that are just as important for the common good. These include the stability of democratic institutions and social peace".
Of special note to our discussion is when he states the following:
"On the other hand justice is not achieved solely by punishing the perpetrators to publicly reveal the truth to vindicate the good name of the victims and to provide reparation for their relatives are also forms of justice".
Chairperson these statements may be difficult to comprehend and even to accept and therefore to only operate at the natural level of humanity and to disregard the higher spiritual nature of humanity, we may have failed in our purpose. Should we endeavour to travel this route it may be that the due process of the law, the court's application and granting of amnesty will also make greater moral sense. If natural justice is served against a perpetrator of political violence, it will not be seen as being vindictive. If amnesty is offered it will not be seen as cheap justice or efforts and actions in the TRC process will be seen in terms of applying a higher focus of morality, justice in human relations.
Furthermore we must remember that at the basis of our experience have been the tremendous forces of dehumanisation that infiltrated our emotions, our thoughts and our psyche. In order to lift this veil of dehumanisation that still envelopes our nation we need to urge all our people to involve themselves in the work of the TRC.
The whole nation must be heard and encouraged to attend these meetings or provisions could be made whereby the various religious institutions could set up their own communicative forums and once such hearings are done, could present them in a forum in the form of a submission to the TRC.
The tactics of dehumanisation policies of the past have resulted in all types of social pathologies prevalent in our society today. It would however seem yet again that South Africa presents a microcosm of all the world's ills which are slowly finding fertility in our land today. We witness a surge in drug smuggling, rampant corruption and violent crimes, moral ambivalence, social theory experimentation, South Africa being the guinea-pig to test various ideologies and doctrines on an emerging democracy which are too sensitive to be employed in all the democratic societies. Ironically enough these ills are replacing the horde of past ills of racial hatred an economic exploitation that ruled our country for over 300 years, but especially the last 40 years. These are all the issues we must address.
Mr Chairman, ACDP very strongly objects that while it is here to evaluate the infringement of human rights on the one hand our government is in the process of legislating laws with similar dehumanising effect. We must be careful that we do not replace one set of dehumanising values with another set of values which may evolve into a scenario with similar dehumanising effects.
It is morally inexcusable for a government not to protect the right to life of all future generations. That is the unborn children whilst political parties, organisations and individuals are called by the Truth Commission to account for human rights abuses of the last 40 years.
A case in point is the Termination of Pregnancy Bill which has recently been passed by the Cabinet. The bill attempts to legitimise the murder of innocent unborn children. Will there be a truth commission 40 years from now to establish how many innocent unborn children have been murdered by the structural violence that is being planned by the acceptance of this bill? The Reverend Peter Hammond says the following in the publication, Fight for Life, and I wish to quote him:- "One of the first acts of the Nazi government in Germany was the legislation of abortion. This was followed by the legislation of euthanasia, then the extermination of the mentally and physically handicapped. Very soon they were killing the political undesirables and their political opponents. Abortion could be termed the hidden holocaust. More people have died through abortion in this century than through all other violence combined. The most dangerous place in the world today is not Bosnia or Rwanda, it is the mother's womb. Abortion turns the womb into a tomb. It turns the mother into a murderess, it turns the doctor who should be preserver of life into a hired assassin who takes life. In the name of human rights the pro choices will take away the right to life of the pre born instead of discrimination based on race as we've had it in the past, they want to have discrimination based on age".
Mr Chairperson on behalf of many Christians in this nation, I want to repent publicly here and now for their silence during the 46 of not taking a stand for the truth and the abuse of human rights of millions of South Africans. However inaction in the past does not prevent us from defending human rights presently and should not prevent us from doing so in the future. Before South Africa can play a meaningful role in international politics, it must develop its own national philosophy born out of the experiences of the past, establish a national moral order which would stand the test of time, it's own unique political language and concepts. We are busy doing it with concepts and language such as the RDP, tolerance, ubuntu, constitutionalism, our political miracle etc. But there is still much work that needs to be done to make these concepts to become meaningful to the whole nation.
The TRC is one vehicle that can help to establish this national moral order. Building or reconstructing a morally must order entails developing a political culture and setting in place values, institutions and policies that will guard against the repetition of the type of atrocities committed in the past. With regard to the granting of reparation to victims to be liaised with the committee that dealt with dealing with victims and the families of the St James massacre and we make the following submission:
1. To call regional meetings in all the nine provinces of all the South Africans that have suffered from gross violation of human rights. At this meeting a full presentation will be done by an appropriate authority like the repair unit of the police force members to understand their hurts.
2. A follow-up session of all groups will follow for a period of weekly sessions of six weeks when counselling will be done in groups by for example psychologists, pastors etc.
3. Individuals that were identified as serious will then be on a one to one basis for a period of six months.
4. We believe that abovementioned function should be the function of communities and churches and not that of the state.
As a nation in a new emerging democracy with its invaluable opportunities we need to develop a social mosaic that shows uniquely the efforts and energies of all South Africans pulling together to develop a new conceptual framework for a future beyond the year 2000. It is with this in mind that we come to the conclusion that there is an inextricable link between the objectives of the TRC and that of the RDP. The one operates at the realm of intangibles with its aim to achieve values of morality, justice, forgiveness, reparation, whereas the other operates at the level of the tangible with its objectives of development, investment and economic opportunities. Out of these two processes we will be able to carve our national values that will involve the full spectrum of nation building. These national values could be embodied in the following conceptual framework:
Godly Morality, a faith spectrum.
This is the distinct role of the church and other religious organisations, a constitutional state and a new understanding of nationhood and nationality.
We wish to put forward the idea that at the heart of the TRC is its task to create the impression that when it has reached the end of its tenure the work of the Commission would be summed up as having lifted our political history beyond reprisals and unto the road of a new beginning of our nation and which will be expressed by the richness of our countries experience through the achievement of a national wisdom which could be summed up in the following way.
To have endured to the bitter end and struggled through the forces of evil and to have overcome. This is the essence of forgiveness and reconciliation to know that through confession and admission, judgement and justification would have been rendered, this is the process of truth.
To hold no bitterness, to feel that one has been vindicated and restored, this is the fruit of commitment to higher ideals, the fruit of repentance and the wisdom to change and march to the beat of a higher morality. To take the hands of those who were instrumental in orchestrating the pain of the past and to rise collectively out of the murky pit of the old apartheid system, this is the creation of a new wisdom and a new beginning.
To have been able to achieve all of this and to recognise the frailty of our own humanity is to realise that this is a gift from God and the result of our faith is the existence and the presence of a living God and to recognise that once this process is over and probably long forgotten the social spin-offs of a higher value system which will be characterised by norms of tolerance, of equality togetherness, achievement would be our society's indebtedness to the work done through the truth and reconciliation process. Our inner hope is that this process Mr Chairperson, once it is completed, will eventually obtain these qualities.
I thank you.
CHAIRPERSON: Thank you very much. I don't know whether your colleague leader would want to add anything to that presentation.
MR MESHOE: Honourable Chairperson, we are ready for questions, I'm satisfied with the presentation, thank you.
CHAIRPERSON: We are very grateful and now I'm going to ask whether any of my colleagues here want explanations or want to make comments. Dr Boraine.
DR BORAINE: Thank you very much indeed for a very thought provoking presentation. Clearly in your own background to this paper, you have a distinction between the role of the Church and the State as both having a place to play and right throughout the centuries this has been a very difficult concept to hold in intention. And I want to put a question to you which has troubled us very much to get your own comments.
You have said quite a lot about amnesty and have equated that to forgiveness. Another way would be to talk about pardon, I suppose. Now in terms of the Act, people who apply for amnesty have certain procedures which they have to go through. I'm not going to rehearse all of them except to say that it's not a very easy process, deliberately so, but there's nothing in the Act which says that anyone comes seeking amnesty should show contrition or repentance or sorrow, and yet if they meet the requirements of the Act, they will be granted amnesty. Now you obviously would have a view on that. We ourselves have discussed this, so let me hasten to say that the members of the Amnesty Committee have seen that some people who have come, even though they don't need to have expressed contrition, have expressed sorrow at what their acts have done to the families concerned. But there's no need to do that. In the Act it makes it quite clear that if they meet the requirements, about five or six requirements they will be granted amnesty.
Now in your understanding of what the Commission is all about and what we are trying to achieve, do you wish to comment on that or respond?
MR GREEN: Thank you for the question Dr Boraine. When the TRC was debated at parliament in the Select Committee of Justice, one must understand there were different political views and different interest groups. Our understanding of the issue of amnesty is that amnesty is compromise that was made in exchange for a truth commission. I do not think that there would have been an agreement had there not been that exchange. I think certain political parties agreed that the full truth will be told and they would encourage their members to tell the truth but on the condition that amnesty will be granted.
Now our understanding on the word of God and what the Bible tells us about forgiveness and repentance and if we should relate it to the process, the present process, is that God grants amnesty but there are certain conditions under which that amnesty is granted and that amnesty is never done at the sacrifice of His just moral order, His justice. And our understanding of the role of the State is not to grant forgiveness, that is the role of the church, but our understanding of the main, the chief duty of the state is to ensure that justice is maintained, and if a person and this is the ACDP position, if a person takes a life of another person and is given a fair trial, all the witnesses, the whole story is heard and he is found guilty for taking the life of this person in terms of our understanding, and many Christians differ with us, but in terms of our understanding, that's person's life will also be taken, but not by a vigilante group, not by and individual, not by a family but by the organ of the State. That is our understanding of justice. Now we understand that the justice system, the human justice system as practised all over through the world is imperfect because we are imperfect. Advocates are imperfect, lawyers are imperfect, constitutions are imperfect. But I think that's the only, the law that we have presently in South Africa is the only law that we have and it's the only system that we can - although imperfect.
Now we understand the moral dilemma because there is a need for forgiveness, there is a need for amnesty because if you're going to have the other option of having political trials, what if you find the entire nation guilty? Sixty percent, fifty percent of the nation is guilty and it is shown and it has been proved beyond any doubt that they have in fact violated the rights of other persons.
I think there has been a certain amount of wisdom into a certain extent of exchanging amnesty in order to have the full truth heard, but the major moral dilemma that we have is that the granting of amnesty to clearly persons who have transgressed the law would give the impression to the persons outside that there is no justice. And I think that's the big dilemma, that's the big crises, how do you grant amnesty to a person who has no repentance, who has no spirit of repentance, no spirit of reconciliation, but because of political compromises and in terms of political agreements he has to receive amnesty?
Now our understanding is that that is not going to come cheap. That if that process is going to happen, there is still going to be repercussions as a result of granting amnesty to persons who are clearly criminal and who have clearly been criminal in the violations of human rights.
DR BORAINE: I would just like to take that one step further and I'm grateful to you for your response. The Truth and Reconciliation Commission has been described as a compromise, and I think this is what you were saying in terms of the interim constitution provision was made for amnesty on the grounds that if a system of amnesty was not instituted, the settlement which came following by the election, a democratic parliament and so on and so on, would never have happened. Now what some of us are arguing and I think you have a special contribution to make is that if the Commission's part of its responsibility is the restoration of the moral order, then we must ask the question, was it only a political compromise or was it a moral compromise as well? I would argue that if there had been no settlement, many many more people would have died. And on the basis of the sanctity of human life, this was not moral compromise but a commitment to life in deciding to have a Commission which would include amnesty as one of its provisions.
Now I'm not sure whether you, how you and your party would view that?
MR MESHOE: I accept the statement that you have made, the need for amnesty is there, but what we think should happen as political party is that in the quest for giving this amnesty, the victims should not think that they are denied justice. That is why we have a problem with giving amnesty to people who are not repentant. Now if the victim insists on getting justice we see the role of the church to coming in there to counsel the victim and also to show the perpetrator the need for repentance in order to achieve that amnesty. Now if the perpetrator wants amnesty and they are not repentant and the victim on the other side is demanding justice, and in their eyes they are denied justice, we believe we will not achieve the desired goal. So the principle of amnesty we agree with it but we are saying, in the process let the victim feel that they have also been vindicated.
CHAIRPERSON: Dr Ramashala.
DR RAMASHALA: Thank you Chairperson. I refer you to page 1 and page 7 of your document where you talk about restitution, the granting of reparations to victims and measures aimed at rehabilitating and restoring dignity to victims, and where you ask the question, does the exposure of the truth in itself have the power to heal. And on page 7 where you list ideas in terms of addressing the suffering of those who experienced gross human rights violations and you list examples from 1 to I believe 4. I'd like to add a question to your list of questions on page 1 to see if you can address this following your logic in the submission. And the question is, does the granting of amnesty, the call for repentance and forgiveness and response on the part of the victim for forgiveness change the quality of life of the victim and/or survivor?
MR MESHOE: I would say to an extent it does, many times people who are victims of these atrocities have been dehumanised. They are looking at themselves. So once those people are given the necessary counselling to ensure, or to assure them that regardless of what has happened you are still a special person. That helps to restore the dignity.
DR RAMASHALA: A follow-up question. In Port Elizabeth a mother whose husband was killed and was left with five children has raised the children by herself is in a state of utter poverty, says to a question about forgiveness or counselling or rehabilitation, I'd like the quality of my life to change, my financial status of my children to change, to improve my ability to educate my children and you are asking me to look at rehabilitation first and that's unquote. How do we deal with that?
MR POTGIETER: Our response would be our understanding of forgiveness goes hand in hand with restitution and throughout the Bible you would find that if someone has taken from someone else and he repents and he goes to the person and tells them that I done harm and injustice and unrighteousness then that person would go out of his way to restore the victim to its former position as far as that is possible. Now as far as a murder is concerned it is not possible to restore to the family a caring husband and a breadwinner by just asking forgiveness. There could be a process of forgiveness, there could be the mother forgiving but there are still the reality of having to survive. I come personally out of a situation where I was raised by a mother and my father died at the age of 29 and that was by means of an accident which he had. But had my father died as a result of civil unrest or whatever, or as the result of human rights violation, the results would have still been exactly the same, the suffering of the family and so on.
So I would think that it would be very important for the state and unfortunately the perpetrators are not called to do restitution and to that extent I feel that the families are paying twice. They are paying because they have lost the father, there is no justice involved, and they are paying again because the government or the state by means of taxes will now have to sustain the family, will have to sustain the mother and the perpetrator actually is the person who walks free.
Now unfortunately or because of the past this kind of compromise had to be made because of what Dr Boraine said earlier. It was necessary in terms to avert even possible worse suffering, a civil war, had this compromise not been made. But we are sitting with the realities of the mothers without the fathers and we're sitting with the realities of those children who will need education and health care. And so I think that as far as the Truth is concerned and reparation is concerned, that those are the cases where special attention must be given and the family must be restored as least financially as far as possible in the position which they had had the father not died as a result of the human rights violation.
CHAIRPERSON: Dumisa Ntsebeza.
MR NTSEBEZA: Thank you Chair. I just want to clarify in my own mind whether I do understand the position of the ACDP with regard to the notion of justice. It's a very illusive concept but do I understand the Party's position to be that for them justice for the victim survivor of human rights violations would be in the form of retribution and retribution only in the wider sense of the perpetrators having to be punished in one way or the other. That's the first question but related to that, has the Party given consideration to the price that perpetrators would be paying if through this process they would be compelled to come publicly and reveal the gross violations of human rights in which they were involved in circumstances where maybe for the first time their families would be knowing for the first time that their father or brother or husband were murderers, torturers but wider than the immediate families the whole country would now know what they had been involved in. In a sense, the persons private knowledge of what they had done would now be revealed for the first time and the whole world in a matter of saying would now know that so and so, some of whom are respectable persons in high offices, would through that process now be shown to be what they are. Is that not what in fact the price of getting amnesty is all about? Where therefore the public revelation of the truth, the vindication of the good name of the victims and the provision of reparations would be as that quotation which you have in your book on page 4 indicates, that that would be some form of justice as well?
MR MESHOE: Thank you Mr Ntsebeza, I want to concentrate on the second part to your question and my colleague will do the first part on justice.
My approach would maybe be slightly different from your approach when it comes to a person that has committed a crime coming into the open. My approach and recommendation would be if a person knows exactly who the victims of the crimes are and that person does not want the whole world to know, I do not see the reason why that person can not go to the victim directly and confess and if necessary ask for a mediator. But I think it would be important to respect the wish of the person who knows the specific victims to go to those victims and make right with them.
Going back to the submission we made, there is a paragraph there that says, "When a crime is committed there, at least from the personal perspective three offended parties, God the State and the victim". Now when a person has made right with the victim, and with God it is not necessary for those people who have nothing to do with that case to be involved in the case. So my proposal is people who do not want to appear on camera, but who want to make right and confess and ask for forgiveness should be accommodated by attending to their requests in the absence of cameras.
MR GREEN: To respond to the first part of your question with regards to the nature of justice or our understanding of justice, it is very clear in terms of our understanding of the word of God, the Bible which we understand to be the source of justice. We understand that there is no person that understands justice better than God because God is a god of love but is also a god of justice. Now when we take the word of God and we study the word of God throughout particularly the Old Testament and particularly the first five books of Moses, we would find that many many nations and nations thousands of years ago had to deal with the issue of justice and our understanding of justice in terms of unfolding the word of God is that it is always a situation of where you would have equal playing fields, you would have a playing field where the person who is the perpetrator as well, particularly the society or the person who has suffered after the process has gone through, whatever the judgement might be, that there is an understanding that justice was done, that righteousness was done, and that is why in the word of God there is always, or consistently there is retribution as far as criminal acts are concerned because if there is no retribution and I think the New Testament is also an example, when God sent Christ to the cross, the kind of justice or the kind of forgiveness or reconciliation with God wasn't done at just a giving of amnesty to persons who did not declare that they were sinners of guilty, it was an act of love but there was a lot of suffering and somebody had to pay the price in order to take that upon himself. And so when God showed us that example he actually says that when it comes to justice, justice doesn't come cheap. Justice in terms of our understanding is that the perpetrator as well as the victim and particularly the victim, must feel that justice has been done. In our society we have a situation where we do not have an appearance that justice has been done, even after the elections, we have situation where criminals are roaming the street and the kind of justice they understand is the justice that can be bought by money. If they have clever lawyers, clever advocates and so on, that's justice. In other words if they know how to get out of prison and how to argue very well then they know that the kind of justice they would get is that there in fact would not be any justice. And that is why we are starting to think and we are starting to become very concerned about organisations and groups and vigilante groups like for instance in the Western Cape, Pagad and what is happening to our society. It's because the understanding, the drug lords, the persons involved with doing these things are not seen to be brought to justice. And that is a very important aspect I think of our understanding of justice, is that if a crime is committed it is important for society to see that the perpetrator will have to be punished by the state for perpetrating that crime.
CHAIRPERSON: Alright Dr Boraine and then Denzil Potgieter.
DR BORAINE: Chairperson if I can just respond very briefly to the Reverend Meshoe. For the record I think it's important for me to say that their reason why amnesty has to take a certain process which goes beyond someone simply going to an individual is that you in your own submission have made it clear that the offending party is not only the individual but also the State and why the Commission had to be set up indeed is that it recognises that you cannot simply go to the victim or the victim's family and say look I murdered your father, I'm very sorry and I'm really upset about it. Let's call it a day. The State has to be involved directly and that is why we have argued that it ought to be public sop that the State can accept its responsibility and the public can see, and it's not done privately with some individual. That's the only point I wanted to make.
CHAIRPERSON: Denzil Potgieter.
MR POTGIETER: Thank you Chairperson. Could I perhaps just embroider a bit more on the issues of justice and amnesty that was debated with you? There is clearly a tension between justice and amnesty as we have it particularly if you look at the consequences of granting amnesty, you wipe out criminal and civil liability, not only on the part of the perpetrator, the offender of it, also on the part of the State or on the part of the organisation which could perhaps or institution which could perhaps be held liable normally in law for the particular act and your emphasis on justice and it seems as if you have accepted in this process that justice has in fact been subjugated to, as you put it here, utilitarian pragmatism. Because clearly amnesty and its consequences as we have it now could clearly not be in line with the concept of justice as you have it here.
Should we not in an attempt to somehow comply with the requirement of justice look at tempering the consequences of amnesty. For example apart from the issue of reparations, giving something to the victim, should we not take it a step further and temper the consequences of amnesty by for example looking at a situation where that particular perpetrator is in a position of authority where he or she could very well repeat the abuse in question in respect of which we have granted amnesty? Would it help, would it go some way towards satisfying the requirement of justice if we were to look at that sort of situation as well where you have people still in authority but granted amnesty in respect of abuses that could very well be repeated?
MR GREEN: I think it would be correct in the process that if you have persons in authority who have been perpetrators of abuse and who have undermined human rights and who have killed others and tortured others, that I would see it highly inconsistent for the State to continue employing such persons. For the simple reason is that the word of God clearly points out in the book of Romans that the State is seen in a sense as a servant of God. But not as a servant of God in the same sense as the Church is being seen, but as a servant of God in maintaining justice. Now you see the problem that you would have in maintaining persons in positions of authority after they have perpetrated horrendous acts of violence and so on, although there has been a reconciliation process or there has been some exposure, you would find that the victims would say that that is the person who perpetrated all these crimes and he is still in a position of authority. He's still in the very same position to somehow would be able, we don't know if it could repeat itself but because he's in that position of authority he could possibly still abuse that position of authority to perpetrate the very same crimes.
And I think there has been particularly organisations in the State and here particularly, National Intelligence, Military Intelligence, and many other organs of state where we have perpetrators who have been part of this abuse but who have, because they knew that they had to give an account of themselves, started to shred all the evidence, started to destroy all the evidence because they have not been removed from that position of authority. They are still part and parcel of the whole apparatus and in that sense people will not get a sense of that there is true justice. That it's merely a kind of power-play between the political parties and some people feel that there rights have been sold and they have been sacrificed and justice has been sacrificed in order to get a political settlement.
So I think one must look at things like pensions, you must look at things that the positions that the people will hold, you must look at all those things. But I think what is very important is that the sense afterwards when we have the final outcome that perpetrators, particularly the perpetrators would feel that justice has been done.
CHAIRPERSON: Chris.
MR DE JAGER: Could I comment on the proposition that the perpetrator should say I'm sorry, I show regret. Suppose that was a requirement of the Act. I think every application would have a paragraph 3 saying I am sorry. But now that is not a requirement. In all the applications we had heard this far, I can't think of a single one that the perpetrator didn't come forward and say, I regret what I've done without it being a requirement. Isn't that far better than having a legal requirement that people would fulfil by saying, I'm sorry whether he's sorry or not? Rather have it coming from himself?
MR MESHOE: The reason we raised that issue was considering the fact that there are people that are applying for amnesty but yet to not say I'm sorry. So if the majority of the people are saying they are sorry, then we'd agree with the amnesty they are receiving. The fact that it is not on paper is not the major issue, the major issue is the person accepting, acknowledging the wrong they have done and apologising for that. And in such a case such people can be given amnesty.
CHAIRPERSON: Thank you very much. I am grateful I mean that I think we are at one with yourselves about the need for the establishment of a new moral order in our country. Would you agree that one of the ingredients of such an order would be tolerance. You know that we have had, as you know, people killed because they were holding a different point of view and we were at a stage where because someone disagrees with you, therefore this is my enemy, and the best kind of enemy is a dead enemy. Now if you agree that it is a good, it is a virtue, the tolerance, because after all democracy is postulated on the premise that there will be differences of viewpoints, I would just want to know what your comments would be with regard to two instances of diversity. One is within the Christian community that in the Christian family there are differences of points of view, we probably would not have so many churches if there weren't. How do you handle that?
Second is where you have a plurality of religious faiths as is the fact of life in our country. How do you ensure if you want that to do that that the right point of view prevails and which is the right point of view.
MR MESHOE: Thank you Mr Chairperson, in principle we agree, we've the need for tolerance in society. In the home there needs to be tolerance for the home to function properly. I society there needs to be tolerance but at the same time there is a need to look at how far one can use tolerance when it comes to things or issues that undermine the rule of law. As an example, if there is a known rapist in the community and that rapist says you need to be tolerant of my presence. Don't attack me or don't expose me, I'm your brother. Although I'm a rapist I'm your brother. Tolerate me as I am. Now the victims would say this person has committed crimes. Although we believe in tolerance this person must still appear before the law. So the issue of tolerance is a very broad one, I gave two sides to it but in principle I agree that in society there needs to be tolerance.
Coming to different faiths and organisations, we agree again that all religions must tolerate one another. And in promoting this tolerance, I do not understand that to mean that in the truth of what one's book is saying, in my instance of what the Bible says should not be undermined because I believe in tolerance. I believe if we truly are tolerant of one anther, we should allow all faiths to teach what their doctrines are. I must be allowed to teach what I teach and the person of another faith should be allowed to teach what they teach because we are tolerant of opposing opinions.
So in short, tolerance should not necessarily mean, do not teach what your book is saying or what your law is saying, those that are not comfortable with what is taught from a certain law book or certain bible or whatever religious book that is used, should tolerant towards those who are teaching that because it's found in the book.
Thank you.
MR GREEN: If I may add Chairperson. Our understanding, particularly my understanding of the word and particularly the life of Jesus Christ, is that as a person He was a tolerant person, He tolerated persons, He was a person who moved among sinners, who spoke to prostitutes, who - In other words He was a humble person and He tolerated the weaknesses of others. But the one principle that I learned form the scripture is that He never compromised the word of God. Now there's a difference between tolerance and compromise. I can be tolerant without compromising my principles.
CHAIRPERSON: I don't want, I mean I'm sure that there are very many wonderful insights. One of the problems is that you will find that there are those who say, having gone to the same source propagate points of view that are diametrically opposed to one another, even from within the same faith community. I don't need to remind you that apartheid was by certain justified biblically. The same Bible that you have been using to uphold other teachings and that as you probably know, some of us walked the streets striving for justice arm in arm with people of other faiths against, if you like, fellow Christians. When we were marching we were marching with Moslems and Hindu and Jews and others and the people often against whom we were marching said they had the same Bible that we were using but they were upholding those different points that you oppose, we oppose.
MR MESHOE: Mr Chairperson, in our submission we did repent on behalf of the Christians who did not openly stand for the truth. One mistake that took place in the past was that when apartheid was promoted by people who said the Bible taught that, those that were convinced the Bible did not teach that did not openly challenge those that were trying to use the Bible to defend the apartheid practices, it should have happened because on the issue of the apartheid the Bible is not contradictory, it is clear that before God there is no colour that is superior to the other, so the repentance that took place on behalf of many Christians that were quiet was just trying to say we should have come out and say if you believe the Bible teaches that, let's debate this openly because we can prove that the Bible does not teach that there is a race that is superior to the other.
MR GREEN: Chairperson if I might just add one or two sentences. I would agree with you that you have marched and I have seen you march and there were times when I marched with you. So can confirm what you are saying. I must just remind the audience and Commissioners here that although apartheid has been defended by using the Bible, the very same apartheid was declared a heresy by using the word of God. So that is exactly what I'm talking when I'm saying that you do not compromise principle when you look at the word of God as the authority because the existing Government wouldn't have listened to the Koran as the revelation of the word of God because they didn't believe in the Koran, and so it was by means of the word of God that they were convinced that apartheid is and was a sin.
CHAIRPERSON: Thank you very very much. We are enormously grateful to you and your party for your submission. We will be handing it over to our research Department who are going there to supply us with very clever questions to ask which will make us look slightly more intelligent than we are doing now, and we may then ask for you to come back to a later hearing when we will try to do justice to a well-thought out and as Dr Boraine says, a thought provoking submission but we are very grateful the insights that you have provided us and with some of the light that you are helping to shed on the gloom and sombreness of our past. Thank you very much.
We will adjourn now until 10 o'clock tomorrow morning. Please stand.
