TRC Final Report

Volume 1

Chapter 5

Subsection 12

Restorative justice: perpetrators

96 The Commission not only condemned acts of killing, torture, abduction and severe ill treatment as violations of human rights. The concrete experiences of victims and the human impact of these violations were put before the nation. At the same time, the Commission sought to identify those responsible for such violations - seeking political accountability as well as moral responsibility.

97 The Act required the Commission to “promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past” by establishing, amongst other things, “the motives and perspectives of the persons responsible”. This obviously forms part of the search for as “complete a picture as possible”. This need for understanding must, however, be placed within the context of an attempt to promote restorative justice. Without seeing offender accountability as part of the quest for understanding, the uncovering of motives and perspectives can easily be misunderstood as excusing their violations.

98 The potential of an individualised, accountable amnesty process as a contribution to the rehabilitation of perpetrators and their reintegration into the new society should not be underestimated. Judge Mahomed has stressed that amnesty also exposed perpetrators to “opportunities to obtain relief from the burden of guilt or an anxiety they might have been living with for years”. Without this opportunity, many might remain “physically free but inhibited in their capacity to become active, full, and creative members of the new order”. Without this kind of amnesty:

both the victims and the culprits who walk on the ‘historic bridge’ described by the epilogue will hobble more than walk to the future with heavy and dragged steps delaying and impeding a rapid and enthusiastic transition to the new society at the end of the bridge.²⁷

99 By concentrating only on individual, or on a limited number of prominent human rights violators, as was the case in the Nuremberg and Tokyo war tribunals, many perpetrators and co-conspirators remained in obscurity. The structures of society and its most formative institutions remained unchallenged. Recognising the need for social and institutional reparations is an important part of restorative justice.

100 Restorative justice demands that the accountability of perpetrators be extended to making a contribution to the restoration of the well-being of their victims. Although neither the interim Constitution nor the Act provide for this, this important consideration was highlighted by the Commission. The fact that people are given their freedom without taking responsibility for some form of restitution remains a major problem with the amnesty process. Only if the emerging truth unleashes a social dynamic that includes redressing the suffering of victims will it meet the ideal of restorative justice.