TRC Final Report

Volume 6

Section 1

Chapter 1

Subsection 2

The Legal Basis of the Amnesty Process

■ INTRODUCTION

1 . The legal basis for the amnesty process of the Truth and Reconciliation Commission (the Commission) is to be found in the legal instruments that emerged from the political negotiations that were initiated in 1990. The original provisions were recorded in the postscript (or what also became known as the ‘postamble’) to the Constitution of the Republic of South Africa Act No. 200 of 1993 (the Interim Constitution) in the following terms:

NATIONAL UNITY AND RECONCILIATION :

This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which gen erated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for under standing but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.

2. These provisions were preserved in Schedule 6, section 22 of the Constitution of the Republic of South Africa Act No. 108 of 1996 (the Constitution), which provided that:

Notwithstanding the other provisions of the new Constitution and despite the repeal of the previous Constitution, all the provisions relating to amnesty contained in the previous Constitution under the heading ‘National Unity and Reconciliation’ are deemed to be part of the new Constitution for the pur poses of the Promotion of National Unity and Reconciliation Act, 1995 (Act 34 of 1995), as amended, including for the purposes of its validity.

THE COMMISSION’S FOUNDING ACT

3. These constitutional provisions formed the basis for the enactment of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 (the Act). Chapter Four of the Act outlined the mechanisms and pro c e dures of the amnesty process. These provided for the establishment of an Amnesty Committee (the Committee) as one of the components of the Commission and empowered it to consider and decide on applications for amnesty. The Act provided that the Committee could grant amnesty where it was satisfied that the application complied with the formal requirements of the Act; that the incident in question constituted an act associated with a political objective as envisaged in the Act, and that the applicant had made full disclosure of all the relevant facts .³ These requirements are considered in more detail below.

The Act also spelt out the fact that the granting of amnesty meant that the applicant was released from all criminal and civil liability arising from the incident, an indemnification that also extended to all institutions or persons who incurred vicarious liability for the incident.⁴ Successful applicants serving prison sentences in respect of an incident were, therefore, entitled to immediate release and the expunging of any relevant criminal record .⁵

POWERS, DUTIES AND FUNCTIONS OF THE COMMITTEE⁶

5. The Committee was a statutory body established in terms of the Act, from which it derived all its powers, functions and responsibilities. It was, in effect, a body with only administrative powers. Due to the adjudicative nature of its functions, the Committee’s procedures soon started to resemble a judicial process. This stood in complete contrast to the non-adversarial hearings of the other two Committees of the Commission.

Applications for amnesty

6. Section 18 of the Act provided that any natural person could apply for amnesty on the prescribed form. Institutions and organisations could not apply. Application could be made in respect of any act or omission that amounted to a delict⁷ or offence, provided that it had to have been associated with a political objective and committed in the prescribed period (see further below).

7 The Committee was required to give priority to the applications of persons in custody. Regulations prescribing measures in respect of these applications were promulgated on 17 May 1996, after consultation with the Ministers of Justice and Correctional Services. These regulations provided mechanisms for informing prisoners of the procedures in respect of amnesty and how to complete the application form properly. They also provided for the recording of applications, the supplying of additional information and the hearing of such applications.