TRC Final Report

Volume 5

Part minority_position

Subsection 12

On amnesty

83 It is premature to make any specific recommendation regarding amnesty before completion of the process. However, I will fail my conscience if I do not comment on a matter of my own experience relating to some applications refused, for example (and only as an example), for some actions by members of self-defence units which would never have occurred had it not been for the nature of the conflict, yet which fall outside the ambit of the provisions of the Act. One cannot help but feel that many would never have been criminals and that the imprisonment of some such individuals does not serve the interests of either the individuals concerned or that of society as a whole. Where prosecutions are pending, the courts can still consider such factors when passing sentence. Where unsuccessful applicants are serving long-term sentences, it is a totally different story.

84 I struggled with the question of whether to refer to this matter before the completion of the amnesty process. Silence may, however, cause injustice to such persons, given a global perspective. I simply raise the possibility of an inter-departmental committee to consider the issue with a view to devising some kind of special parole procedure where appropriate.

The need for closure

85 Recommendations for the establishment of special units to follow up on the uncompleted work of the Investigation Unit, in particular to investigate gross human rights violations that resulted from the political conflicts on the past, should be resisted. Such action would militate against the spirit of understanding, the transcending of the divisions of the past, against bringing to close a chapter in our history. It would negate the spirit of the agreement that gave us our democracy. It is a very sensitive issue that requires great wisdom. It would be politically unfeasible to prosecute all those who committed gross human rights violations in the course of the liberation struggle and who failed to apply for amnesty. In consequence, the principle of even-handed treatment of perpetrators across the spectrum would be negated. One-sided prosecutions would send a message of amnesty first, Nuremberg second. The counter-argument is one of promoting a culture of impunity. It is as thin an argument as was the initial argument against amnesty. Criminal investigations of violations that do not stand the test of political motivation and thus fall outside the provisions of the Act may well proceed – should indeed proceed. Such investigations are, however, best left to existing structures of state. We need to reach a stage where we can clear our desks of the past without having to clear our memory. We can certainly do without agendas of the past to keep us from forgetting.

Analysis of data, research and public discussion

86 A qualitative analysis of the data that has been collected, especially from victim statements and testimonies or through the amnesty process, would have made a very valuable contribution to a better understanding of our society and the underlying endemic risks of the conflicts of the past repeating themselves in different forms. Unfortunately, we have not been able to undertake such an analysis.

87 It is recommended that institutions of learning and research, the private sector and civil society promote research programmes aimed at qualitative analysis of the data. It is further recommended that special sponsorships be made available for research programs aimed at a better understanding of the interaction of the different conflicting value systems in our society, and the management of such interaction towards further promotion of national unity and reconciliation.