TRC Final Report

Volume 6

Section 1

Chapter 1

Subsection 5

FULL DISCLOSURE

24. The amnesty process had a critical role to play in helping establish the fullest possible picture of the past political conflict in the country. To this end, amnesty applicants were legally required to give a full and truthful account of the incidents in respect of which they were seeking amnesty.¹⁷ They were accordingly required to make full disclosure of all of the facts relevant to the incident in question.

25. It follows that, where an applicant’s version was untruthful on a material aspect, the application was refused. It is important to stress, however, that the obligation to make full disclosure related only to relevant facts. This required that the Committee develop an interpretation of the phrase ‘relevant facts’. The Committee concluded that the obligation in question related solely to the particular incident forming the subject matter of the application and did not extend to any incidents not raised in the amnesty application. The facts to be disclosed w e re, therefore, only those relevant to the incident in question. The interpretation adopted by the Committee required that applicants give a full and truthful account of their own role, as well as that of any other person, in the planning and execution of the actions in question. Furthermore, applicants had to give full details of any other relevant conduct or steps taken subsequent to the commission of the particular acts: for example, concealing or destroying evidence of the offence .

26. The interpretation adopted by the Committee has been criticised because it is perceived as having inhibited the potential of the amnesty process to contribute to the overall objective of the truth and reconciliation process, namely of establishing as complete a picture as possible of the political conflicts of the past. It has been argued that it was not conducive to the overall objective of the process to allow amnesty applicants to be selective about the information on past political conflicts they were prepared to share with the South African public. According to this argument, applicants were placed in a position where they w e re able to hold back information about incidents that were unlikely to be uncovered in the future, an attitude that frustrated the very intention of the overall process.

27. The Committee took note of these arguments, but remains satisfied that it gave a proper interpretation of its obligation as re q u i red by the law. The perceived limitations were inherent in the provisions of the Act itself and were accord i n g l y beyond the Committee’s control. It should also be pointed out that the Act gave the Commission certain general powers of investigation and subpoena, which allowed it to look further into any matters left unresolved by the amnesty p rocess. The Committee accepts, however, that the criticism relating to possible shortcomings in the process as enacted is serious and substantial.

PROCESSING APPLICATIONS FOR AMNESTY

28. The Committee relied heavily on information furnished by its own investigators and obtained from the South African Police Services, the Department of Correctional Services, the National Prosecuting Authority and the courts of law. Generally only minimal investigation was necessary in respect of those applications completed with the assistance of a legal representative. Upon completion of such an investigation, the Committee would do one of several things:

Acts not associated with a political objective

29. The Committee would inform the applicant that, based on the particulars before it, his or her application did not relate to an act associated with a political objective and, in the applicant’s absence and without holding a hearing, refuse the application for amnesty.

W here no gross violation of human rights had been committed

30. If it was satisfied that the formal requirements had been met, the Committee would inform the applicant that there was no need for a hearing as the act to which the application related did not constitute a gross violation of human rights. In such cases, it would grant the applicant amnesty without holding a hearing.

Notification of public hearing

31. W h e re the application related to a gross violation of human rights as defined in the Act, a public hearing had to be held. The Committee would notify the applicant, any victim and implicated person and any other person having an interest in the application of the date, time and place where such an application would be heard. These persons had to be informed of their right to be present and to testify at the hearing. The Committee could hear applications individually or jointly.

32. In anticipation of the fact that many of these acts, omissions or offences were the subject of court proceedings, the Act provided that:

a where the act or omission was the subject of a civil claim, the court might, upon the request of the applicant and after proper notice to other interested parties, suspend proceedings pending the outcome of the application for amnesty, and

b in those instances where the applicant was charged with an offence to which the application related, or was standing trial on a charge of having committed such an offence, the Committee could request the appropriate authority to postpone the proceedings, pending the outcome of the application for amnesty.

33. In order to protect the identity of the applicants and the information contained in applications, the Act provided that all the applications, the documentation in connection with them, any further information obtained by the Committee b e fore and during an investigation, as well as the deliberations conducted in o rder to come to a decision or to conduct a hearing, should be treated as confidential. This confidentiality lapsed only when the Commission decided to release such information or when the hearing into the application commenced.