TRC Final Report

Volume 1

Chapter 4

Subsection 3

■ WHY THE SOUTH AFRICAN COMMISSION IS DIFFERENT FROM OTHER COMMISSIONS

24 In order to appreciate the difficulties the Commission faced in implementing its mandate, it is helpful briefly to consider some of the unique features of the South African Commission and how it compares with other similar commissions created in recent years.

25 The most important difference between the South African Commission and others was that it was the first to be given the power to grant amnesty to individual perpetrators. No other state had combined this quasi-judicial power with the investigative tasks of a truth-seeking body. More typically, where amnesty was introduced to protect perpetrators from being prosecuted for the crimes of the past, the provision was broad and unconditional, with no requirement for individual application or confession of particular crimes. The South African format had the advantage that it elicited detailed accounts from perpetrators and institutions, unlike commissions elsewhere which have received very little co-operation from those responsible for past abuses.

26 Another significant difference can be found in the Commission’s powers of subpoena, search and seizure, which are much stronger than those of other truth commissions. This has led to more thorough internal investigation and direct questioning of witnesses, including those who were implicated in violations and did not apply for amnesty. None of the Latin American commissions, for example, was granted the power to compel witnesses or perpetrators to come forward with evidence, and these commissions have had great difficulty in obtaining official written records from the government and the armed forces.

27 The very public process of the South African Commission also distinguishes it from other commissions. While a few have held public victim hearings (such as Uganda in the late 1980s), such hearings have been far fewer in number than in South Africa. The Latin American truth commissions heard testimony only in private, and information only emerged with the release of the final reports.

28 The South African hearings also included aspects of enquiry not seen elsewhere: for example, the institutional and special hearings. These allowed for direct contributions by NGOs and those who were involved in specific areas of activism, policy proposals and monitoring in the past. Few other commissions have included such interaction with ‘non-victim’ public actors.

29 The South African Commission was the first to create a witness protection programme. This strengthened its investigative powers and allowed witnesses to come forward with information they feared might put them at risk.

30 Finally, the South African Commission was several times larger in terms of staff and budget than any commission before it.⁵

■ OBJECTIVES AND FUNCTIONS AS

PRESCRIBED IN THE ACT

31 The Act identified the following objectives and functions:

3. (1) The objectives of the Commission shall be to promote national unity andreconciliation in a spirit of understanding which transcends the conflicts anddivisions of the past by-

a establishing as complete a picture as possible of the causes, nature andextent of the gross violations of human rights which were committed duringthe period from I March 1960 to the cut-off date, including the antecedents,circumstances, factors and context of such violations, as well as theperspectives of the victims and the motives and perspectives of the personsresponsible for the commission of the violations, by conducting investigationsand holding hearings;

b facilitating the granting of amnesty to persons who make full disclosure of allthe relevant facts relating to acts associated with a political objective andcomply with the requirements of this Act;

c establishing and making known the fate or whereabouts of victims and byrestoring the human and civil dignity of such victims by granting them anopportunity to relate their own accounts of the violations of which they arethe victims, and by recommending reparation measures in respect of them;

d compiling a report providing as comprehensive an account as possible of theactivities and findings of the Commission contemplated in paragraphs (a), (b)and (c), and which contains recommendations of measures to prevent thefuture violations of human rights.