TRC Final Report

Volume 6

Section 1

Chapter 1

Subsection 4

The applicant should fall within one of a number of prescribed categories

17. These categories essentially encompassed supporters, members or employees of the contending parties involved in the past political conflict in the country. It was a pertinent requirement that the incident in question should haverel ated specifically to the South African political conflict. ¹⁴

The incident in question should comply with stipulated criteria in order to constitute an act associated with a political objective¹⁵

18. One of the underlying purposes in this regard was to ensure that only conduct associated with the past political conflict in the country would qualify for amnesty. Common crimes were excluded.

19. In this respect, the Act relied heavily on the principles of extradition law and the concomitant definition of a political offence within the international context. A specific and significant influence was the approach followed when preparing for the United Nations-supervised democratic elections in Namibia in 1989. The wording of the Act leaned very heavily on what had become known as the ‘Norgaard Principles’: an approach formulated under the guidance of Professor CA Norgaard, the former President of the European Commission on Human Rights, and applied to guide the process of identifying Namibian political prisoners for release .

20. The Norgaard Principles were gleaned from a survey of the approaches followed by various state courts in dealing with what is known as the ‘political offence exception’ in extradition proceedings. In terms of the ‘exception’, a state that has been requested to extradite an individual may refuse to do so where the crime for which the extradition is sought is political. It was thus necessary for states to formulate an approach to the question of whether a particular crime amounted to a political offence. The background principles, therefore, recorded the common features of the various states’ approaches to the issue.

21. The criteria stipulated in the Act contained important guidelines for assessing whether an applicant’s conduct would qualify as being politically motivated within the broad context of political offences referred to above. In this re gard , the Committee was enjoined to consider a number of factors: the motive of the perpetrator; the context in which the incident occurred (for example whether it occurred in the course of a political uprising); the nature and gravity of the incident; the object or objective of the conduct and, in particular, whether it was directed against political enemies or innocent parties; the existence of any orders or approval of the conduct by a political organisation, and finally, the issue of proportionality. Moreover, the Act specifically provided that, where the perpetrator had acted for personal gain (except in the case of informers) or out of personal malice, ill-will or spite towards the victim, the conduct in question would not qualify as an act associated with a political objective.

22. The approach adopted by the Committee in applying the stipulated criteria was to avoid a piecemeal and mechanical application of the individual criteria. It chose, rather, to adopt a more holistic approach and to assess the totality of the particular facts and circumstances in the light of the criteria as a whole. W here, for example, an applicant had acted on the direct orders of a superior and the conduct in question seemed reasonable, the Committee would see this as going a long way towards satisfying the requirements of the Act. An applicant who had injured or killed an innocent bystander would be subjected to a m o re critical assessment than if his or her victim had been a clear political enemy. The reality is that each application presented its own peculiar circ u m-stances, making it inappropriate to adopt hard and fast rules. Each case had to be approached with an open mind and decided on its own merits. In this way, the Committee used the criteria as a guide to help it decide whether a particular incident qualified as an act associated with a political objective.

23. The Committee was, moreover, specifically enjoined to take into account the criteria applied in terms of the repealed indemnity legislation that had preceded the Act. These criteria largely overlapped with those stipulated in the Act.^{1 6}