TRC Final Report

Volume 1

Chapter 5

Subsection 7

■ AMNESTY, TRUTH AND JUSTICE

53 The postamble of the interim Constitution states:

In order to advance such reconciliation and reconstruction [of society], amnesty shall be granted in respect of acts, omissions and offences with political objectives and committed in the course of the conflicts of the past.¹¹

54 The implementation of this amnesty agreement proved to be very difficult indeed:

[The granting of amnesty] is a difficult, sensitive, perhaps even agonising, balancing act between the need for justice to victims of past abuse and the need for reconciliation and rapid transition to a new future; between encouragement to wrongdoers to help in the discovery of the truth and the need for reparations for the victims of that truth; between a correction in the old and the creation of the new. It is an exercise of immense difficulty interacting in a vast network of political, emotional, ethical and logistical considerations.¹²

55 Two particular tensions need to be noted:

a First, if justice is seen merely as retribution, it becomes difficult to make the appropriate connections between amnesty and justice. While both the interim Constitution and the Commission expressed strong opposition to acts of revenge, it is necessary, nevertheless, to acknowledge that the desire for revenge is an understandable human response. Suppressed anger undermines reconciliation.

Nonetheless, the tendency to equate justice with retribution must be challenged and the concept of restorative justice considered as an alternative. This means that amnesty in return for public and full disclosure (as understood within the broader context of the Commission) suggests a restorative understanding of justice, focusing on the healing of victims and perpetrators and on communal restoration.

b Second, amnesty as an official act of pardon can all too easily be misinterpreted as ignoring responsibility and accountability. As such, amnesty can be seen to be encouraging a culture of impunity. Some victims felt that amnesty results in insufficient social repudiation and that, by refusing to punish those responsible and allowing perpetrators to walk free, it constitutes a failure to respect their suffering.

56 It is important, therefore, clearly to understand the various justifications for the concept of amnesty implemented by the Commission, with its unique focus on individual accountability. Similarly, the relationship between the Commission and the formal justice system merits attention:

The context of transition: accountable amnesty versus impunity

57 The negotiated agreement in South Africa averted the costly return to the politics of confrontation and mass mobilisation. It made the historic bridge provided for by the interim Constitution possible. It did not, however, allow for a choice between amnesty and justice in the sense of large-scale prosecutions and punishment. Indeed, Nuremberg-style tribunals were simply not a viable political option, given the balance of military and political forces that prevailed at the time.

58 The postamble of the interim Constitution thus placed an obligation on South Africa’s first democratic government to make provision for the granting of amnesty, while giving it some discretion as to the circumstances in which amnesty could be granted. The choice was, essentially, between blanket amnesty and qualified amnesty.

59 Through extensive negotiations, which included broad-based public debate, the notion of a blanket amnesty for undisclosed deeds was rejected as an inadequate basis for laying the past to rest. A middle path was required, something that lay between a Nuremberg option and total amnesia. The choice, ultimately, was for amnesty with a considerable degree of accountability built into it.

60 Section 20 of the Act stipulated that amnesty could be granted on the following conditions:

a Applicants were required to apply for amnesty for each offence committed.

b Applications had to be made within the time frame laid down in the legislation.

c Perpetrators were required to make full disclosure of their crimes in order to qualify for amnesty.

d Amnesty hearings involving gross violations of human rights were to take place in public, save in exceptional circumstances.

e Amnesty had to be granted on the basis of a set of objective criteria.

f Amnesty could not be automatic; it would not be granted for certain heinous crimes.

g The name of the persons to whom amnesty had been granted, together with information relating to the crimes for which they were granted amnesty, would be published in the Government Gazette and in the report of the Commission.

h The amnesty provisions in the Act required applicants to declare the nature of their offences – effectively acknowledging their culpability. In cases where amnesty applications were not made or were unsuccessful, the way was left open for conventional criminal trials, where the prosecuting authority decided that there were sufficient grounds for prosecution.

61 Most people do not, of course, wish crimes merely to be condemned. For many people, justice means that perpetrators must be punished in proportion to the gravity of their crimes. If one accepts, however, that punishment is not a necessary prerequisite for the acknowledgement of accountability, it is possible to see that qualified amnesty does contain certain of the essential elements required by justice. Thus, individual perpetrators were identified and, where possible, the circumstances that gave rise to the gross violations of human rights they had committed were explained.

62 Furthermore, while successful amnesty applicants could not be punished, the impact of public acknowledgement should not be underestimated. Perpetrators were not able to take refuge in anonymity or hide behind national amnesia. In the words of Anglican Bishop David Beetge at a post-hearing follow-up workshop, in Reiger Park, 19 April 1997:

The truth always goes hand in hand with justice. We do not tell our stories only to release the dammed up tears that have waited years to be shed. It is in order that truth should be uncovered and justice seen to be done. Even though it is not the work of the [Truth and Reconciliation Commission] to pass judgement or sentence on the oppressors, it has led many perpetrators of crimes to seek amnesty. That is good for them. The [Amnesty Committee] may speak sternly and, in some cases, refuse amnesty. That rightly demonstrates that truth can be tough. The refusal to grant amnesty is a sign that the [Truth and Reconciliation Commission] is not a body setting out simply to show leniency, but, more especially, that it requires justice before there can be reconciliation. Reconciliation is not taking the least line of resistance; reconciliation is profoundly costly.

63 The extension of the cut-off date for amnesty applications from 5 December 1993 (when the negotiation process was completed) to 10 May 1994 (when President Mandela was officially inaugurated) was a reminder of the transitional context in which this unique, accountable amnesty process needed to be understood. The extension of the date was due largely to pressure by, on the one hand, the white right-wing (the Afrikaner Weerstandsbeweging (AWB) and Afrikaner Volksfront) which opposed the elections by violent means and, on the other, black groups such as the Pan Africanist Congress (PAC) and Azanian Peoples Liberation Army (APLA), which had continued the ‘armed struggle’ during the negotiation process. It became clear to the Commission in the course of its work that such an extension would enhance the prospects of national unity and reconciliation, because it would allow these groupings to participate in the amnesty process.