TRC Final Report

Volume 6

Section 1

Chapter 3

Subsection 1

Volume SIX Section ONE Chapter THREE

Modus Operandi of the Committee

■ CHAMBER MATTERS

1. Section 19(3) of the Promotion of National Unity and Reconciliation Act No. 34 of 1995 (the Act) gave the Amnesty Committee (the Committee) the discretion to deal with certain applications in the absence of the applicant and without holding a public hearing – after having investigated the application and having made such enquiries as the Committee considered necessary. These matters were generally referred to as ‘chamber matters’ and concerned incidents that did not constitute gross violations of human rights as defined in the Act (see further Chapter One).^{2 4}

2. Subsection 19(3)(a) of the Act empowered the Committee to refuse an application in chambers when it was satisfied that the application did not relate to an act associated with a political objective. In appropriate circumstances, the Committee was authorised to give the applicant the opportunity to make a further submission before the matter was finalised. This happened quite frequently where the available information created some doubt as to whether the requirement of a political objective had been satisfied, for example where it was not clear whether the applicant had acted within the scope of a particular order or mandate.

3. In terms of subsection 19(3)(b) of the Act, amnesty could be granted in chambers only if the requirements for amnesty (as set out in section 20(1) of the Act) had been complied with; if there was no need for a hearing, and if the act, omission or offence to which the application related did not constitute a gros s violation of human rights.

4. The largest percentage of applications the Committee dealt with were chamber matters. Out of a total of 7115 applications, 5489 were dealt with in chambers.

DIFFICULTIES ENCOUNTERED WHEN DEALING WITH CHAMBER M ATTERS

5. One of the difficulties the Committee experienced when dealing with chamber matters arose from the lapse of time between the commission of the act or o ffence and the consideration of the application for amnesty. Where this spanned a period of years, it was often difficult to trace victims or possible witnesses in o rder to obtain their comments on an applicant’s version. In many such cases, it was difficult if not impossible to obtain police or court records. Even where court re cords were traced, applicants often averred that they had lied to the trial court to escape punishment. It was also not uncommon to learn from applicants that they had concealed the political motivation for their deeds in their court evidence, as this would, at the time, have been regarded as an aggravating circumstance. This left the Committee with the dilemma of having to decide whether an applicant had disclosed the truth in the amnesty application or whether this new version was also just an expedient stratagem. Obviously, these difficulties also arose in ‘hearable’ matters.

6. Another difficulty arose from the fact that, in the time gap between the submission of an application by a serving prisoner and its consideration by the Committee, an applicant might have been released from prison without leaving any forwarding address or contact details. In these instances, the Committee took the view that applicants had a duty to keep the Committee informed of their whereabouts. Nevertheless, the Committee took all possible steps to trace applicants. If several attempts and a final ultimatum failed to elicit a response , such matters were dealt with on the basis of unsupplemented information.

7. The use of pseudonyms, and references to co-perpetrators by pseudonyms or noms de guerre, hampered the proper linking of files relating to the same incident and consequently made it extremely difficult to corroborate the versions of the various applicants by cross - referencing. This was a particular problem when dealing with applications by members of the liberation movements. The resultant delays made the process of dealing with chamber matters more time-consuming than had originally been anticipated.

8. Other delays resulted from slow responses to enquiries directed to political organisations, government institutions and private individuals. This was not always due to reluctance or unwillingness to assist the Committee on the part of those concerned, but more often reflected a lack of the necessary capacity to deal with these enquiries expeditiously.

9. The Committee was mindful of the particular difficulties experienced bygo v e rnment departments. In many instances, old files had been destroyed in the normal course of events or as part of a deliberate policy to conceal i n formation .^{2 5} Some considerable changes in staff after the democratic elections in 1994 caused additional difficulties in accessing archival material. In the case of private individuals, communication by mail presented its own problems, particularly in areas that w e re not easily accessible, such as outlying rural areas and informal settlements.

PROCEDURE FOLLOWED BY THE COMMITTEE IN DEALING WITH CHAMBER MATTE R S

10. The pro c e d u re followed when dealing with chamber matters was adapted from time to time to take account of the availability of Committee members. This resulted in differing views on the interpretation of the Act. Initially, when the Committee consisted of only five members, all were required to consider the application and only one member was mandated to sign the decision on behalf of the full Committee. After the enlargement of the Committee, two signatures were at first considered sufficient. The Committee, however, eventually settled on a t h ree-member panel (one of whom had to be a judge) to decide chamber matters.

11. Committee members dealt with chamber matters as and when they were available in between hearings and the writing of decisions. At times, this resulted in the involvement of more than just the three Committee members required to sign the final decision. A Committee member would, for example, be assigned to deal with a particular matter in chambers and might, in the process, direct an administrative official to obtain further particulars (such as a police docket or court record) to clarify the application. Once the additional information became available, the same file might be re f erred to another Committee member who happened to be available at the time, and not necessarily back to the member who had originally dealt with the file. This member would, if satisfied, take a decision and have a draft decision prepared. If s/he did not consider the application to be a straightforward one, s/he might decide to consult with other Committee members before drafting the decision. Once the decision was drafted and the t h ree members concurred, it would be signed and the interested parties would be informed of the outcome of the application.

12. Some chamber matters proved to be of such complexity that they re q u i red the attention of more than the requisite three Committee members, and even of the full Committee. However, after appropriate consultations among members, the matter would still be finally decided by a three-member panel.

13. In less complicated cases, where an application was refused, no summary of the facts was given but only the ground/s for the refusal. Where amnesty was granted in less complicated cases, a brief summary of the facts was provided , followed by the Committee’s decision.