TRC Final Report

Volume 1

Chapter 1

Subsection 3

■ CRITICISMS AND CHALLENGES

33 It would have been odd in the extreme if something as radical as this Commissionhad met with universal approval and acceptance. It would have been even moreodd had we been infallible and made no mistakes as we undertook the delicatetask of seeking to help heal the wounds of a sorely divided people.

34 Some of the criticism levelled against the Commission has been legitimate.However, there has been much which was merely political point scoring, ignoringthe facts in favour of taking up cudgels against us. There were those who decidedfrom the outset, long even before the Commission had begun its work, to discreditus by trying to paint the Commission as a witch-hunt of, especially, Afrikaners;by claiming that we were biased in favour of the ANC, and as having failed in theend to advance the course of reconciliation. This latter kind of criticism was aclever ploy to seek pre-emptively to discredit the Commission and hence its report.

35 Those who have cared about the future of our country have been worried that theamnesty provision might, amongst other things, encourage impunity because itseemed to sacrifice justice. We believe this view to be incorrect. The amnestyapplicant has to admit responsibility for the act for which amnesty is being sought, thus dealing with the matter of impunity. Furthermore, apart from the most exceptional circumstances, the application is dealt with in a public hearing. The applicant must therefore make his admissions in the full glare of publicity. Let us imagine what this means. Often this is the first time that an applicant’s family and community learn that an apparently decent man was, for instance, a callous torturer or a member of a ruthless death squad that assassinated many opponents of the previous regime. There is, therefore, a price to be paid. Public disclosure results in public shaming, and sometimes a marriage may be a sad casualty as well.

36 We have been concerned, too, that many consider only one aspect of justice. Certainly, amnesty cannot be viewed as justice if we think of justice only as retributive and punitive in nature. We believe, however, that there is another kind of justice - a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships – with healing, harmony and reconciliation. Such justice focuses on the experience of victims; hence the importance of reparation.

37 The Commission has also been harshly criticised for being loaded with so-called ‘struggle’-types, people who were pro-ANC, SACP or PAC. We want to say categorically we did not choose ourselves, nor did we put our own names forward. We were nominated in a process open to anyone - whatever their political affiliation or lack of it. We were interviewed in public sessions by a panel on which all the political parties were represented. Moreover, when the President made his choice from a short list, it was in consultation with his Cabinet of National Unity, which included the ANC, the IFP and the National Party. No one, as far as we know, objected publicly at the time to those who were so appointed. Indeed, many of us were chosen precisely because of our role in opposing apartheid - which is how we established our credibility and demonstrated our integrity. I am myself, even today, not a card-carrying member of any political party. I believe, on the other hand, that some of my colleagues may have been chosen precisely because of their party affiliation, to ensure broad representivity.

38 Many here and overseas have criticised us sharply for having been so conciliatory and accommodating towards Mr PW Botha. We have been accused of handling him with kid gloves; of bending over backwards whilst he has responded with arrogant defiance and intransigence. It is not too difficult to imagine the reaction in certain quarters had Mr Botha been a member of the ANC.

39 We were told that we revealed our true colours when blanket amnesty was granted to thirty-seven ANC leaders. This accusation is understandable when it comes from those who are not familiar with the law that brought the Commission into being. At the insistence of the National Party, it was decided that the Amnesty Committee should be completely autonomous in all matters relating to the granting or refusal of amnesty. The Commission was thus prevented from interfering in any way in this process. The decision to grant amnesty to the thirty-seven ANC members was taken by three judges who could not be accused of being ANC lackeys.

40 Nevertheless, at our very first Commission meeting after this Amnesty Committee decision, we agreed unanimously to apply to the High Court for a judicial review of the Committee’s decision, which was the only course open to us. We then tried to persuade the ANC to agree to a judgement by consent in order to save time and money. Despite this, a certain political party, fully aware that the matter was in hand, sought to derive political capital by rushing its own application. If we were biased in favour of the ANC, why did we take the action we did?

41 When the ANC suggested that its members would not apply for amnesty because they were involved in a just war, I threatened to resign from the Commission. Happily, the ANC changed its mind so I was not forced to do so. It should be noted that I have not taken such a position about the action of any other party. Can you imagine the outcry if the Commission had put a National Party member through the kind of nine-day gruelling hearing to which Ms Madikizela-Mandela was subjected?

42 We have been accused, too, of an ANC bias for refusing to hold public hearings over the gross violations that allegedly took place in the ANC camps in Angola. The fact is that a few people did come forward to testify at human rights violations hearings about what they say happened to them in Quatro. Indeed, one of these people testified when President Mandela was visiting the Commission to attend a hearing in Gauteng. He had to sit through a tirade against the ANC. Had we been ANC lackeys, is it not likely that I would have stopped this witness to spare the ANC President this embarrassment?

43 We held, in addition, a special hearing on prisons where evidence about conditions in Quatro was led. The ANC provided considerable information in the Stuart, Motsuenyane and Skweyiya Commissions, which it had itself appointed to investigate allegations of these abuses. There are likely to be amnesty hearings involving those involved in these violations.

44 It is thus mischievous to suggest that we have not wanted to investigate incidents that might prove embarrassing to the ANC. We would urge our over-enthusiastic critics to read our findings in this report relating to those abuses of which the ANC might be guilty.